EvidenceProf Blog

Read My Lips, No Lip Reading Testimony?: Court Of Appeals Of Indiana Opinion Poses Question About Lip Read Statements

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."

The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

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

In every post-Davis/Hammon ongoing emergency case that I've seen, the statement at issue has been a classic verbal statement by the declarant. In Sandefur v. State, 945 N.E.2d 785 (Ind.App. 2011), however, the Court of Appeals of Indiana applied the Davis/Hammon to nonverbal conduct: mouthed bu unspoken words by a declarant. And that raises an interesting question.

In Sandefur,

While on patrol, an officer came across a disturbance involving Gerald Sandefur and Angel Vanarman. Sandefur told the officer that someone else had "jumped" Vanarman, but Vanarman pointed at Sandefur and mouthed words that the officer understood to be, "He hit me."...Sandefur was arrested and charged with battery and invasion of privacy, both as class A misdemeanors. The State also charged Sandefur with battery as a Class D felony based on the same allegations, but enhanced due to a previous conviction. Vanarman did not testify at trial, but the court admitted, over Sandefur's objection, the officer's testimony that Vanarman appeared to mouth, "He hit me."...Sandefur was convicted on all three charges. 

After he was convicted, Sandefur appealed, claiming, inter alia, that Vanarman's "statement" was inadmissible hearsay and violated the Confrontation Clause. The Court of Appeals of Indiana began by laying out the relevant definitions: 

Indiana Rule of Evidence 801(c) defines "hearsay" as 

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

In turn, Indiana Rule of Evidence 801(a) defines a "statement" as 

(1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion.

The court then found that Vanarman's mouthing of the words was this second type of "statement" because the officer's "testimony told the jury what Vanarman communicated to him by mouthing words; thus, he testified about non-verbal assertive conduct." 

Because the prosecution admitted Vanarman's statement to prove the truth of the matter asserted in it -- that Sandefur hit her -- the court concluded that it was hearsay but found that it qualified for admission under Indiana Rule of Evidence 803(2), which provides an exception to the rule against hearsay for 

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

According to the court, it so qualified because

Vanarman's statement was made soon after she was injured, yelled at, and cornered. Her demeanor showed that she was still under stress, and her statement related to the startling event.

These same facts also led the court to conclude that Vanarman's statement was made under circumstances objectively indicating that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency, meaning that it was nontestimonial and presented no Confrontation Clause problem.

All of this is pretty standard hearsay/Confrontation Clause analysis. So, what is the interesting question? Well, in trying to get around the rule against hearsay, "[t]he State seem[ed] to suggest that [the officer's] testimony was not hearsay because he could not be completely certain what Vanarman meant to say and therefore was offering only his interpretation of her conduct." The court, however, rejected this argument, finding that "the lack of certainty bears more on the credibility of the testimony than whether it is hearsay."

I also think that it bears on the issue of whether the testimony is admissible. Sandfur apparently didn't argue that the officer was unqualified to testify about what he thought Vanarman was trying to communicate to him, but I think that the argument could have been successful. On what ground?

Indiana Rule of Evidence 104(a) provides that

Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the Court, subject to the provisions of subdivision (b). In making its determination, the Court is not bound by the Rules of Evidence, except those with respect to privileges. Where a determination of admissibility under this paragraph requires resolution of a question of fact, the question shall be resolved by the preponderance of the evidence.

When presented in Manasco v. Rogers, 2009 WL 2251425 (3rd Cir.2009), with an objection to the testimony of a witness who claimed that he read the lips of a declarant, the Third Circuit held that

We realize, of course, that the admissibility of the evidence of the "lip-read statement" is a legal issue that must be resolved. Under Rule 104(a) of the Federal Rules of Evidence, it is for the district judge to decide whether there is any foundation at all for Manasco's claim that he has the ability to read lips and hence is competent to testify as to the meaning of lip movements he claims to have observed. It is also possible that this evidence would be barred by the hearsay rule. However, those determinations can best be made after the parties have had an opportunity to introduce more evidence of the circumstances surrounding the "statement" and of Manasco's competence to testify as a lip-reader. Accordingly, we think it best to allow the district court to resolve the issue of the admissibility of that evidence in the first instance, on a more developed record.

Okay, so Indiana Rule of Evidence 104(a) and its federal counterpart could lead to the exclusion of lip reading testimony, but what about Indiana Rule of Evidence 701? It provides that

If the witness is not testifying as an expert, the witness’s testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Lip reading testimony is pretty clearly opinion/inference testimony. As the state argued, the officer in Sandefur was not certain of what Vanarman meant to say and was simply making an inference. So, is lip reading testimony by lay witnesses rationally based upon the perception of the witness and helpful to a clear understanding of his testimony? Well, after reading Sandefur, I asked my wife to read my lips on several different phrases. She got none of them right, except for "I love you." I then had her do the same, and I got none right. This anecdotal data is backed up by the empirical data. Studies have shown that "[n]o more than twenty to thirty percent of spoken English is visible on the lips," the rest being formed in the mouth and throat. Michele LaVigne, An Interpreter Isn't Enough: Deafness, Language, and Due Process, 2003 Wis. L. Rev. 843, 855 (2003).

Now, you might say that context matters, but might it matter in the wrong way? An officer responding to a crime scene might expect a declarant to mouth words relating to a crime and reach inappropriate conclusions. The officer in Sandefur thought that Vanarman said, "He hit me." But maybe she said, "He hate me." Or maybe, it was, "Please wait here." Or maybe, it was something else.  

So, how about lip reading experts? Should they be able to testify? The empirical data still seemingly points to the question being answered in the negative. "Even the best lip-reader, under the perfect set of environmental circumstances (with optimal lighting, no visual distractions, a calm emotional state, and no obstructions to the speaker's mouth or face), can only understand about 30 percent of verbal speech." Cat Dvar, Note, Remedies--The Appearance of Access: Deaf Defendants and the Massachusetts Judiciary- Justice?, 29 W. New Eng. L. Rev. 915, 928 (2007).

Courts exclude hearsay primarily because it is unreliable. Even if lip read statements meet an exception to the rule against hearsay, doesn't this data suggest that testimony concerning such statements should be deemed inadmissible because it lacks reliability?

(Hat tip to my colleague Marc Ginsberg for the link).

-CM

Open And Shut: North Carolina Strengthens Its Open Discovery Law

Back in 2004,

North Carolina Governor Mike Easley signed a bill into law that require[d] prosecutors to share their files in all felony cases. The bill was approved in the wake of allegations that prosecutors withheld evidence in the capital murder trial of Alan Gell, who was later exonerated and freed from death row. The new open discovery statute require[d] district attorneys to open their investigative files in felony cases to defense lawyers who request[ed] such access prior to trial. The law require[d] DAs to provide such things as police investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial. In return, defense attorneys will have to provide the state with witness lists and details about the grounds on which they plan to defend their client. 

That bill created G.S. § 15A-903, and you can read its text by clicking here. So, what besides the Gell case led to the passage of G.S. § 15A-903, what problems has the law encountered, and what did North Carolina recently do in connection with the bill? These are the subjects of this post.

It seems as if the Gell was merely the straw that broke the camel's back and led to open discovery in North Carolina. Previously,

an earlier compromise on the issue of open files [in North Carolina] was reached in death penalty cases, requiring prosecutors to share evidence before a defendant could be executed. "That gave a small window into prosecutor’s files...and it was shown dramatically that prosecutors in death penalty cases were not giving defense lawyers evidence that the clients were innocent, couldn’t have committed the crime, or that the crime happened in a way that would not have qualified for the death penalty.” In other words,..."They were abrogating their responsibility to see that justice was done. DAs were putting winning ahead of justice."

Thereafter, over the next seven years, this peek into the files of prosecutors would lead to the overturning of an average of one death penalty case a year. But it wasn't until the Gell case that the groundswell for change turned into a referendum on criminal discovery in North Carolina. Gell was convicted of murder and sentenced to die before the prosecution finally turned over 17 statements by witness indicating that they had seen the victim alive after Gell had already been incarcerated.

Thus, in 2004, North Carolina got G.S. § 15A-903. Three years later, it almost lost it. In 2007, in the wake of the Duke lacrosse scandal,

North Carolina prosecutors hope[d] to roll back parts of the 2004 law that helped defense lawyers show the innocence of the three men charged in the Duke lacrosse case.

"A bill proposed in the legislature would [have] give[n] district attorneys and their staffs greater leeway to withhold details from some interviews with witnesses and investigators. If the interviews were considered legal strategy talks -- or "work product" in lawyer jargon -- then notes taken from the meetings might not have to be shared with the defense.

"Defense lawyers [fought] the proposal, saying the changes would turn the clock back to a time when many prosecutors routinely sat on information that could help an accused person prove his innocence."

That roll back attempt ultimately failed, but it was revived four years later. The new Republican legislature initially proposed a version of House Bill 408 (which you can read by clicking here) that would have "gut[ted] open discovery in North Carolina" according to Mark Rabil, the Co-Director of the Innocence and Justice Clinic at the Wake Forest University School of Law. Among other things, the bill would have "ensure[d] prosecutors would no longer be held responsible for information withheld by police." For a story on the proposed legislation and a news clip of wrongfully convicted men speaking out against it, you can click here.

But then, a funny thing happened on the way to the courtroom. Rather than rolling back the open discovery law, North Carolina decided to bolster it. Specifically,

District attorneys and defense lawyers...agreed on changes that will require law enforcement officers, crime labs and other investigative agencies to turn over sooner any potential evidence that could help a suspect's case sooner. The proposed law would make clear that crime investigators are expected to turn over any evidence even without a request from prosecutors triggering that duty.

House Bill 408 was thus strengthened and recently passed into law. You can read it by clicking here. According to Rabil, some of the new law

makes the criminal discovery statute consistent with the recently passed Forensic Sciences Act (FSA), such as criminalizing the failure of law enforcement to disclose information to the DA and the requirement that the working papers (bench notes, preliminary tests, etc) be provided through discovery.  So those parts are not exactly new, but consistent with the new FSA. 

The new parts...with regard to expanding the definition of the types of agencies that must provide information to the DA so that he can provide it to the defense through discovery -- this is good because it helps insure that all investigative agencies are required to comply with producing discovery.  Also new is a protection for DAs -- there is a presumption that helps them:   courts and state agencies shall presume good faith on the part of prosecutors who conducted a "reasonably diligent inquiry" of those agencies and disclosed the responsive materials to the defendant.

Overall, this is an excellent example of both sides -- prosecutors and defense attorneys -- working together to propose legislation that will keep the system working toward fairness in the process.  The new amendments insure that we will not roll the clock back on discovery and openness.  This will help prevent wrongful convictions in the long run:  that is, this will help prevent some of the abuses and mistakes made made in such cases as Allan Gell, Darryl Hunt and Greg Taylor, and the recent failure to provide 1,800 pages of discovery in the Bellamy capital trial in Statesville.   Further, law enforcement will have a motivation to search for and produce all available relevant evidence -- if they don't, they could be charged with a felony.  And, the overwhelming majority of prosecutors who act in good faith to obtain information and provide it to the defense will be protected from unwarranted discipline. 

The Forensic Sciences Act referenced by Rabil can be found by clicking here (and here's an article about it), and, along with North Carolina's open discovery law, it represents two of a triumvirate of recent positive criminal justice efforts in the state, with the state's eyewitness identification reform law being the third (which, as with the open discovery law, came in the wake of a high profile case).

-CM 

Legally Blind?: Supreme Court Attempts To Clarify The Willful Blindness Doctrine

Willful blindness is one of my favorite topics to teach. My current go to case on the doctrine is Nunley v. United States, 2009 WL 2386674 (9th Cir. 2009), in which (1) a man asked Larry Nunley to haul a large quantity of marijuana in his truck; (2) Nunley refused but left the keys to his truck with the man while he watched the Super Bowl for 3 hours; and (3) Nunley returned to his truck, saw a new container in it, and drove off without opening the container. The opinion is 2 pages on Westlaw and a nice and quick way to teach students the basics of willful blindness.

Now, however, via our sister blog, White Collar Crime Prof Blog, by Professor Ellen Podgor, comes word of the Supreme Court's important opinion in Global-Tech Appliances, Inc. v. SEB S.A., 2011 WL 2119109 (U.S. 2011), and a new tool to teach the topic as the Court attempts to clarify the specifics of the doctrine.

In SEB S.A.,

SEB invented a "cool-touch" deep fryer, that is, a deep fryer for home use with external surfaces that remain cool during the frying process....SEB obtained a U.S. patent for its design in 1991, and sometime later, SEB started manufacturing the cool-touch fryer and selling it in this country under its well-known "T–Fal" brand.

In 1997, Sunbeam Products, Inc., a U.S. competitor of SEB, asked petitioner Pentalpha Enterprises, Ltd., to supply it with deep fryers meeting certain specifications. Pentalpha is a Hong Kong maker of home appliances and a wholly owned subsidiary of petitioner Global–Tech Appliances, Inc. 

In order to develop a deep fryer for Sunbeam, Pentalpha purchased an SEB fryer in Hong Kong and copied all but its cosmetic features. Because the SEB fryer bought in Hong Kong was made for sale in a foreign market, it bore no U.S. patent markings. After copying SEB's design, Pentalpha retained an attorney to conduct a right-to-use study, but Pentalpha refrained from telling the attorney that its design was copied directly from SEB's.

The attorney failed to locate SEB's patent, and in August 1997 he issued an opinion letter stating that Pentalpha's deep fryer did not infringe any of the patents that he had found. That same month, Pentalpha started selling its deep fryers to Sunbeam, which resold them in the United States under its trademarks. By obtaining its product from a manufacturer with lower production costs, Sunbeam was able to undercut SEB in the U.S. market.

Litigation ensued, with S.E.B. eventually bringing an action against Pentalpha, claiming, inter alia, that Pentalpha violated 35 U.S.C.A. § 271(b), which states that "[w]hoever actively induces infringement of a patent shall be liable as an infringer." At the close of trial, the jury found that Pentalpha violated § 271(b),and the district court denied Pentalpha's post-trial motions seeking a new trial or judgment as a matter of law, in which Pentalpha claimed, inter alia, "that there was insufficient evidence to support the jury's finding of induced infringement under  § 271(b) because Pentalpha did not actually know of SEB's patent...."

The Federal Circuit thereafter affirmed, finding

that induced infringement under § 271(b) requires a "plaintiff [to] show that the alleged infringer knew or should have known that his actions would induce actual infringements" and that this showing includes proof that the alleged infringer knew of the patent....Although the record contained no direct evidence that Pentalpha knew of SEB's patent before April 1998, the court found adequate evidence to support a finding that "Pentalpha deliberately disregarded a known risk that SEB had a protective patent."...Such disregard, the court said, “is not different from actual knowledge, but is a form of actual knowledge."

The United States Supreme Court thereafter granted cert, and Pentalpha claimed "that active inducement liability under § 271(b) requires more than deliberate indifference to a known risk that the induced acts may violate an existing patent." 

Pentalpha won this battle but lost the war, with the Court that finding that "deliberate indifference to a known risk that a patent exists is not the appropriate standard under § 271(b)" but ultimately concluding that the evidence "was plainly sufficient to support a finding of Pentalpha's knowledge under the doctrine of willful blindness." In reaching this conclusion, the Court had several interesting things to say about the willful blindness doctrine:

•"The traditional rationale for this doctrine is that defendants who behave in this manner are just as culpable as those who have actual knowledge;"

•"It is also said that persons who know enough to blind themselves to direct proof of critical facts in effect have actual knowledge of those facts;" and

•(1) English law first recognized the doctrine of willful blindness in the mid-19th Century; (2) while not using the term "willful blindness," the Supreme Court first endorsed a similar concept in Spurr v. United States, 174 U.S. 728 (1899); (3) the Model Penal Code later incorporated the doctrine; (4) the Court has since used the MPC's definition of willful blindness in some due process cases; and (5) every federal circuit, "with the possible exception of the District of Columbia Circuit, has fully embraced willful blindness, applying the doctrine to a wide range of criminal statutes.".

Therefore, according to the Court,

Given the long history of willful blindness and its wide acceptance in the Federal Judiciary, we can see no reason why the doctrine should not apply in civil lawsuits for induced patent infringement under 35 U.S.C.A. § 271(b). 

This then left the question of whether the "deliberate indifference" test applied by the Federal Circuit complied with the proper willful blindness standard, and the Court found that it did not. Instead, it found that

While the Courts of Appeals articulate the doctrine of willful blindness in slightly different ways, all appear to agree on two basic requirements: (1) the defendant must subjectively believe that there is a high probability that a fact exists and (2) the defendant must take deliberate actions to avoid learning of that fact. We think these requirements give willful blindness an appropriately limited scope that surpasses recklessness and negligence. Under this formulation, a willfully blind defendant is one who takes deliberate actions to avoid confirming a high probability of wrongdoing and who can almost be said to have actually known the critical facts....By contrast, a reckless defendant is one who merely knows of a substantial and unjustified risk of such wrongdoing,...and a negligent defendant is one who should have known of a similar risk but, in fact, did not.... (emphasis added).

The Court then found that

The test applied by the Federal Circuit in this case departs from the proper willful blindness standard in two important respects. First, it permits a finding of knowledge when there is merely a “known risk” that the induced acts are infringing. Second, in demanding only "deliberate indifference" to that risk, the Federal Circuit's test does not require active efforts by an inducer to avoid knowing about the infringing nature of the activities.

That said, the Court still concluded that "[t]aken together, this evidence was more than sufficient for a jury to find that Pentalpha subjectively believed there was a high probability that SEB's fryer was patented, that Pentalpha took deliberate steps to avoid knowing that fact, and that it therefore willfully blinded itself to the infringing nature of Sunbeam's sales." 

Meanwhile, Justice Kennedy wrote a strongly worded dissent, contending that "[w]illful blindness is not knowledge; and judges should not broaden a legislative proscription by analogy." According to Kennedy, the majority's opinion was based upon two justifications, neither of which was justified:

First, the Court appeals to moral theory by citing the "traditional rationale" that willfully blind defendants "are just as culpable as those who have actual knowledge."...But the moral question is a difficult one. Is it true that the lawyer who knowingly suborns perjury is no more culpable than the lawyer who avoids learning that his client, a criminal defendant, lies when he testifies that he was not the shooter?...he answer is not obvious. Perhaps the culpability of willful blindness depends on a person's reasons for remaining blind....Or perhaps only the person's justification for his conduct is relevant.... This is a question of morality and of policy best left to the political branches. Even if one were to accept the substitution of equally blameworthy mental states in criminal cases in light of the retributive purposes of the criminal law, those purposes have no force in the domain of patent law that controls in this case. The Constitution confirms that the purpose of the patent law is a utilitarian one, to "promote the Progress of Science and useful Arts," Art. I, § 8, cl. 8.

Second, the Court appeals to precedent, noting that a "similar concept" to willful blindness appears in this Court's cases as early as 1899....But this Court has never before held that willful blindness can substitute for a statutory requirement of knowledge. Spurr v. United States, 174 U.S. 728, 735, 19 S.Ct. 812, 43 L.Ed. 1150 (1899), explained that "evil design may be presumed if the [bank] officer purposefully keeps himself in ignorance of whether the drawer has money in the bank or not, or is grossly indifferent to his duty in respect to the ascertainment of that fact." The question in Spurr was whether the defendant's admitted violation was willful, and with this sentence the Court simply explained that wrongful intent may be inferred from the circumstances. It did not suggest that blindness can substitute for knowledge. Neither did Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.E.2d 610 (1970), or Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.E.2d 57 (1969). As the Court here explains, both cases held only that certain statutory presumptions of knowledge were consistent with due process....And although most Courts of Appeals have embraced willful blindness, counting courts in a circuit split is not this Court's usual method for deciding important questions of law.

Moreover, he pointed out

The Court appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge. It does so in a civil case where it has received no briefing or argument from the criminal defense bar, which might have provided important counsel on this difficult issue.

Obviously, SEB S.A. is now a case that must be mentioned when teaching willful blindness, and there are several nice things about it:

•it is only 13 pages on Westlaw, and easily edited;

•it has a clear and concise fact pattern;

•it contains a thorough discussion of the history of the doctrine;

•it succinctly states the two basic requirements of the doctrine; and

•the different narratives in the majority and dissenting opinions should enable compelling class discussions

So, what effect will SEB S.A. actually have in practice? Will most circuit merely find that their prior precedent is consistent with SEB S.A., as the majority seems to suggest, or is Justice Kennedy correct that there is more of a circuit split and that the majority's opinion is more revolutionary that its language suggests? Stay tuned.

-CM

That's A Legal Problem: Higgs v. State And The Nevada Test For The Admissibility Of Expert Testimony

Last month, I posted an entry about Wisconsin becoming the 31st state to adopt or apply the Daubert standard to determine whether to admit a witness to testify as an expert in a given field. At the time, I promised to do a 19 state tour of the remaining states to shine a light on the varying tests that these states use. Today, I will start our tour in the Battle Born State of Nevada.

Nevada is a good place to start because it likely has the latest elucidation of its expert witness test, as is made clear in Jeffrey Stempel, Expert Witnesses: The Nevada Supreme Court Clarifies Adherence to NRS 50.275 and Judicial Discretion, Expressly Declining to Embrace the Federal Daubert Approach, 18-OCT Nev. Law. Rev. 10 (2010).

So, let's start with the relevant rule, NRS 50.275, which provides that

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.

Next, let's take a look at the Supreme Court of Nevada's opinion in Hallmark v Eldridge, 189 P.3d 646, 650 (Nev. 2008). In Hallmark, the Nevada Supremes noted that 

To date,...this court has not adopted the United States Supreme Court's interpretation of FRE 702 in Daubert v. Merrell Dow Pharmaceuticals, Inc. But, as we have stated, Daubert and the federal court decisions discussing it may provide persuasive authority in determining whether expert testimony should be admitted in Nevada courts.

Next, let's take a look at Higgs v. State, 222 P.3d 648, No. 49883 (Nev. 2010), the Supreme Court of Nevada opinion that prompted the article by Professor Stempel, who teaches at the UNLV William S. Boyd School of Law. In Higgs, Chaz Higgs, the husband of former State Auditor Kathy Augustine, was charged with first-degree murder after he allegedly poisoned her through injection of succinylcholine, a drug to which Higgs had access, through his work as a nurse. During the prosecution, the government proffered expert testimony concerning the nature of the drug and its impact.

After he was convicted, Higgs appealed, claiming that this expert testimony was improperly received. That appeal eventually reached the Supreme Court of Nevada, before which Higgs argued that, in Hallmark, 

Curiously, although the Court did not expressly adopt Daubert, it relied heavily on federal case law - which of course has adopted Daubert - in concluding that the defendant there did not lay the proper foundation through its biomechanical expert in that his opinion based on the record was based on unreliable methodology. Also curiously, while the Court did not expressly adopt Daubert, it noted that the defendant did not offer any evidence that biomechanics was within a recognized field of expertise; that the expert's biomechanical opinion was capable of being tested or that it had been tested; that the defendant's expert's theories had been published or subjected to peer review; and that the defendant's expert's opinion was of the type that had been generally accepted in the scientific community. These, of course, are the hallmarks of a Daubert analysis.

Thus, Higgs became about more than just the case before the court; it become a chance for the Supreme Court of Nevada to explain exactly where it stands with regard to the admission of expert testimony. And, the first thing that the court did was to "expressly reject the notion that our decision in Hallmark inferentially adopted Daubert or signaled an intent by this court to do so." Instead, the court noted that in Hallmark, it

identified the three overarching requirements for admissibility of expert witness testimony pursuant to NRS 50.275 as (1) qualification, (2) assistance, and (3) limited scope requirements....This court then identified factors to be considered under each requirement.

Specifically, with regard to qualification, some relevant factors are:

(1) formal schooling and academic degrees, (2) licensure, (3) employment experience, and (4) practical experience and specialized training.

With regard to assistance, the Hallmark court concluded that "[a]n expert's testimony will assist the trier of fact only when it is relevant and the product of reliable methodology" and that

In determining whether an expert's opinion is based upon reliable methodology, a district court should consider whether the opinion is (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community (not always determinative); and (5) based more on particularized facts rather than assumption, conjecture, or generalization. If the expert formed his or her opinion based upon the results of a technique, experiment, or calculation, then a district court should also consider whether (1) the technique, experiment, or calculation was controlled by known standards; (2) the testing conditions were similar to the conditions at the time of the incident; (3) the technique, experiment, or calculation had a known error rate; and (4) it was developed by the proffered expert for purposes of the present dispute.

Finally, the Hallmark court found that it did not need to identify factors to be considered under the limited scope requirement. And that was part of the point of the court in Higgs. The court in Higgs pointed out that in Hallmark, it was "careful to note that the list of factors was not exhaustive, and we recognized that every factor may not be applicable in every case and would likely be accorded varying weight from case to case."

So, what is the difference between NRS 50.275 and Federal Rule of Evidence 702/Daubert? As noted, NRS 50.275 provides that

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.

Meanwhile, Federal Rule of Evidence 702 provides that

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

Contrasting these two, the Nevada Supremes concluded that

Whereas the federal rule mandates three additional conditions that trial judges should consider in evaluating expert witness testimony, the Nevada statute mandates no such requirements. Rather, NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis. In Hallmark, we outlined some factors that are useful in this inquiry, but repeatedly noted that the factors enumerated "may not be equally applicable in every case."...We determine that the benefit of our approach is twofold: first, it gives judges wide discretion to perform their gatekeeping duties; and, second, it creates an inquiry that is based more in legal, rather than scientific, principles.

In Nevada, the qualification, assistance, and limited scope requirements are based on legal principles. The requirements ensure reliability and relevance, while not imposing upon a judge a mandate to determine scientific falsifiability and error rate for each case. In sum, Daubert, as any other case decided by the U.S. Supreme Court, is looked upon favorably by this court. We do not, however, adopt the Daubert standard as a limitation on the factors considered for admissibility of expert witness testimony. We hold that NRS 50.275 provides the standard for admissibility of expert witness testimony in Nevada.

Or, as Professor Stempel put it,

In Higgs, the court reaffirmed the general rules of expert admissibility but took pains to emphasize that scientific precision was not required to make expert testimony admissible as long as the expert was sufficiently qualified and the testimony was helpful to the factfinder and sufficiently reliable. A precise methodology is not required, however, nor must a proffer of expert testimony meet a precise checklist of criteria to gain admissibility. Part of the court's rationale in Higgs was concern that courts, following Daubert, had been overly rigid in applying the criteria for expert admissibility.

-CM

Article Of Interest: Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment

If you have ever taught or taken an Evidence class, you likely know about the following oddity in the Federal Rules of Evidence. Federal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," and Federal Rule of Evidence 802 provides that "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Meanwhile, Federal Rule of Evidence 803 and Federal Rule of Evidence 804 provide exceptions to the rule against hearsay for statements that are offered in evidence to prove the truth of the matter asserted but which are thought to be sufficiently reliable/trustworthy.

And then, there is Federal Rule of Evidence 801(d), which indicates in relevant part that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

In a sense, then, Rule 801(d) is oxymoronic. Rules 803 and 804 make sense. They take statements that are defined as hearsay under Rule 801(c) and say, "Well, wait a minute. These are exceptions to that rule." But Rule 801(d) is internally inconsistent with Rule 801(c). Rule 801(c) provides the definition of hearsay, but then Rule 801(d) basically says, "Well, no. That's not really the definition because here are 8 statements that should be deemed hearsay under Rule 801(c) but which we are going to classify as 'not hearsay.'"

As Sam Stonefield, a professor at the Western New England College of Law, notes in his new article, Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011), while this oddity ha not caused significant problems for lawyers and judges, Rule 801(d) is poorly written and is in need of a good rewrite.

So, how did we get here? In Parts II and III of his article, Stonefield traces the origin of the "not hearsay" statements covered by Rule 801(d) to John Henry Wigmore's editing of the sixteenth edition of Greenleaf on Evidence. Prior to the sixteenth edition, courts and scholars had identified a dichotomy under the rule against hearsay: If a statement were offered to prove the truth of the asserted, it was either inadmissible hearsay or an exception to the rule against hearsay. Wigmore, however, created a trichotomy, concluding that 

[T]hree distinct groups of questions present themselves in connection with the Hearsay rule, viz.: A. Is the Hearsay rule applicable to the case at hand, i.e. is the evidence offered as a testimonial assertion? B. Is there any exception to the Hearsay rule to be made for the evidence offered? C. If the Hearsay rule is applicable, and if no recognized exception covers the case in hand, is the Hearsay rule satisfied, i.e. has there been, in fact, an oath and cross-examination?

As Professor Stonefield notes, this third category was the progenitor of Rule 801(d), and it was not without controversy. For instance, Edmund M. Morgan "

attacked Wigmore’s view that admissions were not hearsay. Morgan reviewed the history of admissions and demonstrated that Wigmore’s position was unsound in theory and unsupported by case law. Summarizing his argument, he wrote:

Certain it is that extra-judicial admissions are received in evidence. Equally certain is it that they are received for proving the truth of the matter admitted. It is likewise certain that they do not fall within that exception to the rule against hearsay [sic] which admits declarations against interest. These are the facts, and from them the conclusion is inevitable that they are received as an exception to the rule against hearsay, and not that they are received on any theory that they are not hearsay.

Professor Stonefield then takes us through the long, strange trip leading up to the adoption of Federal Rule of Evidence 801(d). While the Model Code of Evidence, the Uniform Rules of Evidence, and the California Code of Evidence (as well as Evidence luminary Charles McCormick in a model statute) all treated admissions as hearsay with a separate exception, the drafter, seemingly almost by accident, classified the statements in Rule 801(d) as "not hearsay." 

Thereafter, in Part IV and V, Professor Stonefield notes that despite the awkward wording of Rule 801(d), it has not seemed to cause courts any problems although this is not to say that application of the Rule is without confusion. For instance, he points out that

The Supreme Court has decided four cases involving Rule 801(d). In those cases, the Court has used the terms "exemption," "exception," and "exclusion" more frequently than "not hearsay." The proposed Advisory Committee Note for the stylistic revisions to the current Federal Rules refers to the "hearsay exclusion" in Rule 801(d). Lower court cases regularly used similar terminology.

Finally, in Part VI, Professor Stonefield 

evaluates six different approaches to classifying admissions and prior statements:

1) The Federal Rule approach, with Rule 801(d) and the “not hearsay” terminology;

2) The First and Second Draft approach, excluding admissions and prior statements from the definition of hearsay, Rule 801(c);

3) The predecessor code approach, treating admissions and prior statements as one of a list of hearsay exceptions;

4) The "three categories" approach adopted by Connecticut and Pennsylvania;

5) The "four categories" approach that I recommend; and

6) A "four categories" approach where the categories for admissions and prior statements are labeled "exemptions" or "exclusions" rather than "exceptions."

I will leave it to readers to check out Professor Stonefield's full article for his complete analysis, but the long and short of Professor Stonefield's suggested approach is that it creates four categories of hearsay exceptions, each based on the status of the hearsay declarant. There would be a category for:

(1) the declarant as a party—for admissions;

(2) the declarant as a witness—for prior statements;

(3) when the availability of the declarant is immaterial; and

(4) when the declarant must be unavailable.

As readers of this blog know, the Federal Rules of Evidence are currently being restyled, so what does this mean with regard to Professor Stonefield's proposal. He told me that his

The article was presented to and discussed by the Advisory Committee on Evidence Rules at their October, 2010 meeting.  The Committee subsequently wrote that, while “agree[ing] in principle with [my] proposal” that Rule 801(d) should be amended and admissions and prior statements treated as separate hearsay exceptions, the members felt that the rule “was not a source of ambiguity or confusion and was being applied properly in the courts. Moreover, the members felt that the time and expense of making and incorporating a rule amendment outweighed the need for changing the rule at this time.” 

So, while Professor Stonefield's proposal didn't take the day, it is certainly interesting food for thought and a great tool for teaching Rule 801(d) as well as possible future reform.

-CM

A Matter Of Character?: Alaska Case Reveals State's Domestic Violence Character Evidence Exception

Similar to Federal Rule of Evidence 404(b), Alaska Rule of Evidence 404(b)(1) provides that

Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Alaska, however, also has Alaska Rule of Evidence 404(b)(4), which provides that

In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible. In this paragraph, "domestic violence" and "crime involving domestic violence" have the meanings given in AS 18.66.990.

So, how do Alaska courts apply Alaska Rule of Evidence 404(b)(4), and how many states have so-called domestic violence exceptions to the propensity character evidence proscription? These are the topics that I will address in this post.

To answer the first question, let's look at the recent opinion of the Court of Appeals of Alaska in Jackson v. State, 2011 WL 2084075 (Alaska App. 2011). In Jackson, Albert Eric Jackson was convicted of second-degree assault for causing serious physical injury to his former girlfriend, Sheena Cundiff. After he was convicted, Jackson appealed, claiming that the trial court erred in allowing the State to introduce evidence pursuant to Alaska Rule of Evidence 404(b)(4), including testimony from Jackson's former girlfriend, Deshia Whisamore, about Jackson's prior acts of domestic violence.

In addressing this argument, the court noted that in Bingaman v. State, 76 P.3d 398 (Alaska App. 2003), it outlined several factors to guide trial courts in applying these rules ofevidence in cases in which the government seeks to admit evidence of a defendant's other crimes or bad acts:

(1) the strength of the government's evidence that the defendant actually committed the other acts; (2) the character trait the other acts tend to prove; (3) whether this character trait is relevant to any material issue in the case; (4) how seriously this issue is disputed; (5) whether litigation of the defendant's other acts will require an inordinate amount of time; and (6) whether the evidence of the defendant's other acts will lead the jury to decide the case on improper grounds.

Moreover, "[t]he trial judge must conduct this balancing test and must explain its decision on the record. But trial judges are not required explain their analysis of each Bingaman factor in every case." And, the Court of Appeals found that the trial court complied with this procedure because

the trial judge expressly stated his conclusions on several of these factors. The judge concluded the State's evidence of the prior incident was strong, the incident was similar to the charged offense, the incident was relevant to the issue of identity, the testimony would not be lengthy, and there was "little likelihood that a jury would consider the case on improper grounds. The judge's findings on these factors are supported by the record....Given this record, it was reasonable for the judge to conclude that there was sufficient evidence that the prior act occurred.

So, how prevalent are these domestic violence exceptions? The most recent cataloging of such exceptions that I could find was in Tom Lininger's fantastic article, Evidentiary Issues in Federal Prosecutions of Violence Against Women, 36 Ind. L. Rev. 687, 701 n.44 (2003),in which he notes that

Several states have created what is in effect a domestic violence exception to the ban on propensity evidence. See ALASKA R. EVID. 404(b)(4) (admitting evidence of prior domestic violence against same victim, or evidence of prior interference with a report of a crime involving domestic violence);CAL. EVID. CODE § 1109 (admitting evidence of prior domestic violence to show propensity); 725 ILL. COMP. STAT. 5/115-20 (admitting evidence of prior domestic violence against same victim); LA. R. EVID.404(b)(2) (allowing evidence of prior domestic violence to show violent propensity of abuser where victim is prosecuted for attacking abuser, and victim raises claim of self-defense); see also ARIZ. R. EVID. 404(c) (admitting evidence of prior sexual assault to show propensity, where defendant is now charged with sexual assault); FLA. R. EVID. 404(2)(b) (admitting evidence of prior child molestation to show propensity, where defendant is now charged with child molestation). 

That said, he also notes that 

At least three states have considered and rejected such proposals.

In 2002, the Michigan Legislature considered, but did not ultimately adopt, a bill that would have admitted evidence of prior domestic violence to prove propensity in a prosecution of domestic violence. S.B. 733, 2002 Leg. (Mich. 2002), available at http://www.bar.org/legislative.positions.htm (the Michigan State Bar opposed this proposal). In 2001, the Oregon Legislature refused to adopt a bill that would have emulated CAL. EVID. CODE § 1109. See supra note 29 and accompanying text. In 1999, the New York Legislature refused to adopt a provision of Governor Pataki's proposed Sexual Assault Reform Act that would have freely admitted propensity evidence in sexual assault cases.

So, that was the lay of the land as of 2003. Are any readers aware of any developments regarding domestic violence exceptions in the last several years?

-CM

Conspiracy Theory: Should Courts Find Co-Conspirator Admissions To Confidential Informants Per Se Nontestimonial?

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."

The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

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

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

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

The conventional wisdom among courts in the wake of Crawford is that co-conspirator admissions made to confidential informants/undercover agents are "nontestimonial" and thus present no problems under the Confrontation Clause. But does such a categorical conclusion make sense? Let's take a look at the recent opinion of the United States District Court for the Central District of California in Le v. Dexter, 2011 WL 1842887 (C.D. Cal. 2011), to see.

In Dexter, Johnson Le was convicted of second degree murder, with the jury finding true the allegation that the offense was committed for the benefit of, at the direction of, or in association with, a criminal street gang. After he was convicted and unsuccessfully appealed in the California state court system, Le filed a petition for a writ of habeas corpus with the United States District Court for the Central District of California, claiming, inter alia, that the trial court improperly allowed for the admission of co-conspirator admissions against him in contravention of the Confrontation Clause.

These admissions were introduced through the testimony of two informants:

•Sam Yu testified that he was a member of the same gang as Le and Le's co-defendants before becoming an FBI informant. While working as an informant, he tape recorded conversations withe each of the three defendants. These conversations addressed not only planned future crimes by the gang but also the past murder which led to Le's conviction. Specifically, Yu got one of Le's co-defendants to describe in great detail how the three defendants killed the victim.

•Andy Tran also testified that he was a gang member/FBI informant. He did not tape record conversations with the three defendants, but he relayed the details of various conversations with Le's two co-defendants. Specifically, he repeated statements made by Le's two co-defendants regarding his exact role in the subject murder.

In addressing Le's argument, the Central District of California found that the co-defendants' statements constituted co-conspirator admissions and concluded that there was no Confrontation Clause despite the fact that these co-defendants did not testify. Why? The answer can be found in Bourjaily v. United States, 483 U.S. 171 (1987). In Bourjaily, an FBI informant arranged to sell cocaine to Angelo Lonardo, who agreed to find someone to distribute the drug. The person whom Lonardo found was Bourjaily, and Lonardo's conversations with the informant were later admitted over Bourjaily's Confrontation Clause objection. In Crawford, the Court cited Bourjaily as one of its cases consistent with the principle that nontestimonial statements present no Confrontation Clause problems, and courts, including the Central District of California in Dexter, have used this language to conclude that co-conspirator admissions to confidential informants/undercover agents are "nontestimonial."

But are they correct? According to Michael L. Seigel & Daniel Weisman, The Admissibility of Co-Conspirator Statements in a Post-Crawford World, 34 Fla. St. U. L. Rev. 877 (2007), the answer is "not always." Seigel and Weisman engage in a close reading of Crawford and Davis, which leads them

to advocate a nuanced rule for the admission of co-conspirator statements under the Confrontation Clause. First, all operational statements, and those aimed at future events, should be admissible-they are akin to requests for emergency assistance. Second, casual remarks by conspirators should also be admissible, due to Crawford's specific exclusion of "casual remark[s] to an acquaintance" from the reach of the Confrontation Clause. Even isolated answers to occasional questions asked by an undercover agent or witness about the identity of conspirators or past events should not be excluded. But when sustained questioning of one or more co-conspirators amounts to an interrogation objectively designed to gather evidence about past events, any statements given in response should be classified as testimonial, and thus their admission should be barred by the Confrontation Clause. This test is not perfectly neat and clean, but it is faithful to the Supreme Court's recent jurisprudence and to the Confrontation Clause itself.

Readers should check out the full article for the authors' complete analysis, but their basic point is that the co-conspirator's ignorance of the informant's status is not dispositive under the Confrontation Clause. Instead, (1) Davis made clear that the Confrontation Clause test is objective and "that the subjective intention of neither the interrogator nor the declarant controls whether the resulting statement is testimonial;" and (2) while solemnity is an important factor in determining whether a statements is testimonial, "when one conspirator briefs another about facts pertinent to the success of the conspiracy, it is a solemn event because the consequences of lying are likely to be quite dramatic-perhaps even death, if the conspiracy enforces internal norms in a violent manner."

Thus, in Bourjaily, Lonardo's statements were not testimonial because (1) his statements were clearly operative, all relating to a future transaction and not past criminal conduct, and (2) his statements were not the result of sustained questioning by the informant. Conversely, in Dexter, the co-defendant's statements related in part to past criminal conduct, and their statements seemed to be the result of sustained questioning although we probably need more facts. Thus, they were at least arguably testimonial. And, according to the authors, the reason why we should care is that "determining that co-conspirator statements made to undercover agents can be testimonial avoids giving law enforcement the perverse motive to obtain as much information as possible through undercover means to avoid the constraints of the Sixth Amendment."

I think that this analysis is pretty fascinating, and, if anything, it has only been bolstered by the Supreme Court's recent opinion in Michigan v. Bryant. As I have noted, in Bryant, the Supreme Court reaffirmed that the Confrontation is objective and focuses upon " "the statements and actions of both the declarant and interrogators...."

-CM