EvidenceProf Blog

"That's What Insurance Is For": Court Of Appeals Of Minnesota Finds Malpractice Insurance Evidence Properly Admitted

Like its federal counterpart, Minnesota Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

So, was the Court of Appeals of Minnesota correct in its recent opinion in Zwaschka v. Carney, 2011 WL 2519135 (Minn.App. 2011), that evidence of malpractice insurance was properly admitted despite Rule 411? I don't think so.

In Zwaschka, Susan Zwaschka schedule an appointment for a chemical peel with Dr. Patrick Carney at Skin Speaks M.D., LLC.

In the days following the peel, Zwaschka experienced pain, swelling, redness, and open wounds that wept fluid. She returned to Dr. Carney's office one week after the chemical peel, and Dr. Carney told her that her condition was not normal and that he was very concerned. Zwaschka cancelled her trip to Chicago and treated with Dr. Carney for several days. During these visits, Dr. Carney conducted "aggressive wound care." He soaked her face in wet gauze, discussed giving her a steroid injection, and prescribed medication. Dr. Carney and Zwaschka discussed scarring and the risk of infection in the open wounds. Dr. Carney explained that when [esthetician Jeanne] Jellison pointed out the spot that he had missed during the peel, he may have overlapped the procedure and applied a second coat of the solution. Dr. Carney told Zwaschka that she should blame him rather than herself and that he had contacted his malpractice-insurance provider. The chemical peel had caused superficial second-degree burns that left Zwaschka with permanent scars on her right cheek, on her chin, and above her lip.

Zwaschka and her husband thereafter sued Dr. Carney and Skin Speaks, alleging medical negligence and civil battery. After the jury found for the plaintiffs and awarded them approximately $1 million in damages, the defendants appealed. 

One of the grounds for the appeal was that the trial court erred by allowing Zwaschka to testify about statements that he made regarding his malpractice insurance. Specifically, Zwaschka testified that Dr. Carney "told her that she should blame him rather than herself for what happened to her, that he had contacted his malpractice-insurance provider, and that, 'That's what insurance is for.'" According to the defendants, "Zwaschka's testimony about insurance 'fall[s] squarely within the Rule 411 bar on evidence of insurance.'"

According to the Court of Appeals of Minnesota, however,

In allowing this testimony, the district court reasoned that the testimony was introduced not to impute negligence, but instead to show Dr. Carney's state of mind after the procedure, his "acceptance of responsibility for the results...and his tacit admission of his own errors." We cannot say that the district court abused its discretion in this regard."

But wasn't this result achieved by the first part of Zwaschka's testimony? According to Zwaschka, Dr. Carney told her that she should blame him rather than herself for what happened to her. Doesn't this statement accomplish the goal of proving that Dr. Carney accepted responsibility and admitted his errors? And what does the addition of the statements regarding malpractice insurance add to the equation?

I would argue that the answer is nothing, except for making the jury feel like they could award a large verdict to the plaintiffs because they knew that malpractice insurance would take care of it. As the Advisory Committee's Note to Federal Rule of Evidence 411 makes clear, the most important reason why evidence of liability insurance is generally inadmissible is because of "the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds." In other words, Rule 411 is based upon the belief that knowledge of liability insurance would induce jurors to award more in damages. And indeed, Dr. Carney's alleged statement asked jurors to do just that because "That's what insurance is for."

-CM

Formula 409: D. Mass. Errs in Deeming Evidence Of Payment Of Maintenance & Care Inadmissible Under Rule 409

Federal Rule of Evidence 409 provides that

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

The classic Rule 409 case involves Dan and Paul getting into a car accident and Dan jumping out of his car and promising to pay for Paul's medical expenses and/or paying for Paul's medical expenses. Rule 409 deems Dan's offer/payment inadmissible to prove Dan's liability for the accident because, according to the Advisory Committee's Note, such an offer/payment

is usually made from humane impulses and not from an admission of liability, and...to hold otherwise would tend to discourage assistance to the injured person. 

But what happens when a party seeks to introduce evidence of such an offer/payment to prove something other than liability? The evidence should be admissible, contrary to the conclusion of the United States District Court for the District of Massachusetts in its recent opinion in Zeghibe v. ConocoPhillips Co., 2011 WL 2489736 (D.Mass. 2011).

In Zeghibe, Kenneth Zeghibe brought an action against ConocoPhillips, seeking damages for personal injury under the Jones Act and the doctrines of unseaworthiness and maintenance and cure. The Jones Act provides that

A seaman injured in the course of employment or, if the seaman dies from the injury, the personal representative of the seaman may elect to bring a civil action at law, with the right of trial by jury, against the employer. Laws of the United States regulating recovery for personal injury to, or death of, a railway employee apply to an action under this section.

After Zeghibe brought his action, ConocoPhillips moved for summary judgment, claiming, inter alia, that Zeghibe was not a "seaman" at the time his alleged injuries occurred. In response, Zeghibe claimed that he qualified

as a seaman because he served as a sea captain in ConocoPhillips' fleet of tankers, and remained a ship's master throughout his extended "special assignment" with the Polar Tankers construction project. His responsibilities included conducting sea trials on the vessels as they neared completion, and captaining the vessels between ports.

The court noted that "Zeghibe also assert[ed] that ConocoPhillips 'treated him as a seaman, paying maintenance and cure.'" The court, however, disregarded this evidence and ultimately granted ConocoPhillips' motion for summary judgment, pointing out that "[a]s ConocoPhillips notes, this evidence is not admissible under Fed.R.Evid. 409 ('Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.')."

The way I see it, this conclusion was plainly wrong. Under Rule 409, a party cannot use the other party's offer to pay his medical expenses and/or actual payment as evidence that the other party caused his injuries. In other words, in the classic case cited above, Paul could not use Dan's offer to pay his medical expenses as evidence that Dan was driving negligently and caused the car accident.

This was not, however, the way in which Zeghibe was trying to use ConocoPhillips' payment of his maintenance and cure. He was not using this payment as evidence that ConocoPhillips was negligent or otheriwse culpable; he was using it to prove that it treated him as a "seaman."

As a comparison, take a look at Federal Rule of Evidence 411, which precludes the admission of evidence of liability insurance to prove negligence or otherwise wrongful conduct but allows for the admission of such evidence to prove, inter alia, agency. Assume in the car crash example from above that Paul sues Company, claiming that Dan was its agent making a delivery, and Company responds that Dan was an independent contractor. Paul could introduce evidence that Company took out a liability insurance policy on Dan, not to prove Company's culpability, but to prove that Dan was Company's agent.  

This is similar to how Zeghibe was using ConocoPhillips' payment of his maintenance and cure. He was using it to prove that he stood in a certain employment relationship with ConocoPhillips -- he was a "seaman" for them -- and not to prove its culpability. The court thus erred in deeming the evidence inadmissible. 

-CM

Gettin' (Un)Lucky In Kentucky: Court Of Appeals Of Kentucky Finds Trial Court Erred In Excluding Evidence That Alleged Victim Was A "Crack Whore"

Assume that a defendant is on trial for sexually assaulting a victim. And, assume that the defendant's defense is, essentially, that the alleged victim is a "crack whore." Should the defendant be able to present evidence of the alleged victim's prior drug (ab)use, without any accompanying evidence that she traded sex for drugs (or money to get drugs) to support the inference that she consented to the subject sexual act in exchange for drugs (or drug money)? According to trial courts in Kentucky in Vermont, the answer is "no." According to the Supreme Court of Vermont and the Court of Appeals of Kentucky in its recent opinion in Bell v. Commonwealth, 2011 WL 2078563 (Ky.App. 2011), the answer is "yes." In this post, I will explain why I think that these opinions were horribly misguided.

In Bell, Eric Bell was convicted of convicted on charges of first-degree sodomy, fourth-degree assault, and tampering with physical evidence. After he was convicted, Bell appealed, claiming, inter alia,

that the circuit court erred in excluding statements the complainant made to medical personnel concerning her history of drug use and addiction. He contends that if he had been permitted to introduce evidence of the complainant's drug use history, the jury would have been more likely to believe his version of the events in question, i.e., that due to the complainant's twenty-year drug addiction, she consensually traded sex in exchange for receiving crack cocaine from Bell. He alleges that if he had been allowed to present evidence to the jury that complainant “was a chronic crack cocaine addict and had no money,” the jury may have inferred she would have traded sex for crack cocaine.

In addressing Bell's appeal, the Court of Appeals of Kentucky found that none of the cases cited by Bell were persuasive. The court, however, noted that it conducted its own research and uncovered State v. Memoli, 18 A.3d 567 (Vt. 2011). As the Court of Appeals of Kentucky noted,

In Memoli, there was evidence in the record that the complainant had smoked marijuana on the evening in question....The complainant testified that the defendant's companion blew crack cocaine smoke into her mouth....Memoli and his companion testified that the complainant smoked the crack cocaine herself....Additionally, Memoli and his companion testified that the complainant traded sex for drugs, but the complainant alleged that she was raped. Memoli's defense counsel sought to introduce evidence of the complainant's use of drugs both before and after the date of the offense as her motive for engaging in sexual acts. Defense counsel argued that without the introduction of such evidence, Memoli did not have a defense because his defense was: (1) that the complainant traded sex for drugs; (2) that she therefore consented to the sexual relations; and (3) that the reason she did so was because she "was a crack addict."...However, the trial court did not permit Memoli to introduce evidence of the complainant's prior and subsequent drug use. The court only permitted Memoli to introduce evidence of the complainant's drug use on the night of the incident. The court held that any other evidence of the complainant's drug use was irrelevant to the issue of consent.

The Supreme Court of Vermont disagreed and reversed, finding that the evidence was admissible under Vermont Rule of Evidence 404(b), which provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

According to the Vermont Supremes, this evidence was admissible because

Defendant did not seek to introduce complainant's drug use to prove that she had a specific character trait of being an addict or a reputation as a drug user to undercut her credibility.... Defendant's proffer was narrower: that evidence of complainant's drug use was relevant to demonstrate that she had motive to consent to sexual acts with defendant. This purpose is consistent with the rule.

The Supreme Court of Kentucky agreed with this reasoning in Bell, concluding that

We find the Vermont Supreme Court's analysis in Memolipersuasive and hold that the reasoning applies to this case. As in Memoli, in Bell's case, there was evidence that the complainant had drugs in her system the evening in question; the defendant testified that he and the complainant had exchanged sex for drugs; the complainant testified that she was raped; the defendant wanted to introduce evidence of the complainant's history of drug use because his defense was that due to complainant's drug addiction, she was willing to trade sex for drugs; and the court did not admit evidence of the complainant's history of drug use.

The Kentucky Rules of Evidence at issue in this case and the Vermont Rules of Evidence at issue in Memoli are quite similar....[T]he evidence of prior drug use was relevant for the purpose of determining whether the complainant consented to the sexual relations with Bell in exchange for drugs.

So, why do I think that these opinions are horribly misguided? Here's how Rule 404(b) should work. Dana starts a fight with Veronica. Two months later Dana allegedly assaults Victoria. Dana is now on trial for assaulting Victoria. The prosecution wants to present evidence of Dana's prior fight with Veronica. The prosecution will be unsuccessful. Why? Rule 404(b) prevents the introduction of propensity character evidence, i.e., evidence that a person has a propensity to act in a certain way and thus likely acted in conformity with that propensity at the time in question. Put more simply, the prosecution can't present evidence of Dana's fight with Veronica to prove, "Once a thug, always a thug." The theory is that we want people to be convicted based upon evidence that they committed the crime charged, not based upon evidence of past crimes and inferences therefrom.

Conversely, let's say that the fight two months before the alleged assault was between Dana and Victoria, and Dana ended up with a black eye and a split lip. The prosecution wants to present evidence of Dana's prior fight with Victoria. The prosecution will likely be successful. Why? The prosecution is not labeling Dana as a perpetual thug. Instead, they are presenting evidence that establishes that there is a specific reason to believe that Dana would attack Victoria based upon their prior fight. In other words, this is proper evidence of motive under Rule 404(b).

Now, let's go back to Bell. What was Bell's purpose in trying to introduce evidence of the alleged victim's prior drug use and addiction? It was to prove that she was a "crack whore." It was not evidence that the victim had a specific reason, or motive, to consent to sex with Bell in exchange for drugs or drug money. It was evidence that, based upon her history of drug (ab)use, she was likely to consent to sexual acts with anyone at anytime in exchange for drugs or drug money. In other words, this "Once a crack whore, always a crack whore" evidence was classic propensity character evidence that should have been excluded under Rule 404(b).

For comparison's sake, let's look at the opinion of the Superior Court of New Jersey, Appellate Division, in State v. Mazowski, 766 A.2d 1176 (N.J.Super.A.D. 2001), in which the court reversed a defendant's burglary and theft convictions based upon the prosecution's presentation of evidence of his drug addiction to prove that he had a motive to commit the crimes charged. According to the appellate court, the drug addiction evidence did

not relate to the particular crime with which defendant is charged, or to any other particular crime. Rather, it is submitted as a reason why defendant commits crime in general. It is an undifferentiated "motive" to steal. As such, except for its label, it is indistinguishable from a claim that defendant has a “disposition,” or general propensity to commit crimes, which is precisely what N.J.R.E. 404(b) prohibits.

-CM

Independence Day, Take 3: Why I Think That The Supreme Court Will Find No Confrontation Clause Violation In Williams v. Illinois

Yesterday, I noted that the Supreme Court granted cert in Williams v. Illinois (10-8505) to address a question left unanswered by Bullcoming v. New Mexico: Is the Confrontation Clause violated when an expert witness for the prosecution relies upon a testimonial report prepared by an analyst who does not testify at trial, but the report itself is not admitted into evidence to prove the truth of the matter asserted? This was different from the question resolved by Bullcoming, in which the Court held that the Confrontation Clause is violated when such a testimonial report is actually admitted into evidence. Indeed, Justice Sotomayor made this distinction clear in her concurring opinion in Bullcoming, which I wrote about yesterday. In that post about Sotomayor's concurring opinion, I mused about whether the Bullcoming dissent would be able to create a 5-4 majority finding no Confrontation Clause violation in a case where a testimonial report is relied upon but not actually admitted into evidence to prove the truth of the matter asserted. And, based upon the facts of Williams v. Illinois, 939 N.E.2d 268 (Ill. 2010), I think the dissent will achieve this result.

Williams v. Illinois

In Williams, L.J. was allegedly sexually assaulted, kidnapped, and robbed by the defendant Sandy Williams on February 10, 2000. Thereafter,

Dr. Nancy Schubert conducted a vaginal exam of L.J. and took vaginal swabs, which were then sealed and placed into a criminal sexual assault evidence collection kit along with L.J.'s blood sample. The kit was sent to the Illinois State Police (ISP) Crime Lab for testing and analysis.

On February 15, 2000, forensic biologist Brian Hapack with the ISP Crime Lab received L.J.'s sexual assault evidence collection kit and performed tests that confirmed the presence of semen. Hapack placed the swabs in a coin envelope, sealed the envelope, and placed the evidence in a secure freezer....

On August 3, 2000, police arrested the defendant for an unrelated offense and, pursuant to a court order, drew a blood sample from the defendant. On August 24, 2000, forensic scientist Karen Kooi performed an analysis on the sample that consisted of four quarter-sized bloodstains on a filter card. Kooi extracted a deoxyribonucleic acid (DNA) profile and entered it into the database at the ISP Crime Lab. Meanwhile, the samples from L.J.'s sexual assault kit were sent to Cellmark Diagnostic Laboratory in Germantown, Maryland, for DNA analysis on November 29, 2000. Cellmark returned L.J.'s vaginal swabs and blood standard to the ISP Crime Lab on April 3, 2001. Cellmark derived a DNA profile for the person whose semen was recovered from L.J. According to ISP forensic biologist Sandra Lambatos,...the DNA profile received from Cellmark matched the defendant's DNA profile from the blood sample in the ISP database. 

At trial,

Lambatos began her testimony with a brief explanation of polymerase chain reaction (PCR) testing. PCR testing, according to Lambatos, is one of the most modern types of DNA analysis available and is generally accepted in the scientific community. Lambatos explained how PCR analysis can be used to identify a male profile from a semen sample. First, an analyst conducts a procedure that isolates and extracts DNA from a sample that may include a mixture from a particular defendant and the victim. The DNA is not large enough to test at this point, and requires amplification to form a more workable sample. After amplification, an analyst can measure the length of an individual specific strand through a process called electrophoresis. A computer translates this measurement onto a graph called an electropherogram. The electropherogram is a representation of the individual's specified DNA data into a line with peaks representing the lengths of the DNA strands of the 13 STR regions. Reports generally also provide a "table of alleles" showing the DNA profile of each sample. She also stated that the statistical probability of a match can also be determined by entering the alleles into a frequency database to learn how common they are in the general population.

Lambatos further testified that it is a commonly accepted practice in the scientific community for one DNA expert to rely on the records of another DNA analyst to complete her work. As mentioned, she used the DNA profile from Cellmark to match the DNA profile from the defendant's blood sample, which was contained in the ISP database....Cellmark's testing and analysis methods were generally accepted in the scientific community according to Lambatos. 

When the prosecutor then asked Lambatos for her expert opinion regarding the DNA match, "[d]efense counsel objected and asserted that Lambatos could not rely upon the testing performed by another lab." The trial judge deferred his ruling on the issue, and 

Lambatos then testified that a match was generated of the male DNA profile found in the semen from L.J.'s vaginal swabs to the defendant's male DNA profile from the defendant's blood standard. In response to defense questioning, Lambatos restated her interpretation of the alleles at each of the 13 locations. She testified about several locations where she visually filtered out spurious alleles and “background noise” and distinguished the defendant's profile. Lambatos concluded that in her expert opinion, the semen from L.J.'s vaginal swab was a match to the defendant. Lambatos testified that the probability of this profile occurring in the general population was one in 8.7 quadrillion black, one in 390 quadrillion white, and one in 109 quadrillion Hispanic unrelated individuals. She did not observe any degradation or irregularities in the sample from L.J.'s vaginal swab.

She stated that, in general, if "there was a question of a match, then we would investigate that further by looking at the electropherograms from all the cases involved and do some more comparisons on that." She explained that in looking at Cellmark's report, she interpreted it and "I did review their data, and I did make my own interpretations so I looked at what * * * they sent to me and did make my own determination, my own opinion." While Lambatos testified to her conclusion informed by Cellmark's report, Cellmark's report itself was not introduced into evidence. Also, while Lambatos referenced documents she reviewed in forming her own opinion, she did not read the contents of the Cellmark report into evidence. 

Defense counsel then repeated his objection, claiming, inter alia, that Lambatos' use of Cellmark's report violated the Confrontation Clause. The trial court disagreed, stating,

"I don't think this is a Crawford scenario, and I agree with the State that the evidence is—the issue is, you know, what weight do you give the test, not do you exclude it and accordingly your motion to exclude or strike the testimony of the last witness or opinions based on her own independent testing of the data received from Cellmark will be denied."

After he was convicted, Williams appealed, claiming, inter alia, "that his sixth amendment right was violated by Lambatos' testimony concerning Cellmark's report," and his appeal eventually reached the Supreme Court of Illinois. The Illinois Supremes initially noted that it "has long held that prohibitions against the admission of hearsay do not apply when an expert testifies to underlying facts and data, not admitted into evidence, for the purpose of explaining the basis of his opinion." The court then rejected Williams' "suggestion that Lambatos was merely a 'conduit' for Cellmark's report and that the report was entirely dispositive of Lambatos' opinion," instead finding that

Her testimony consisted of her expert comparison of the DNA profile in the ISP database with the DNA profile from the kit prepared by Cellmark. She used her own expertise to compare the two profiles before her: the blood sample prepared by Kooi and the semen sample prepared by Cellmark. She also did not observe any problems in the chain of custody or any signs of contamination or degradation of the evidence. Lambatos ultimately agreed with Cellmark's results regarding the male DNA profile. But Lambatos additionally made her own visual and interpretive comparisons of the peaks on the electropherogram and the table of alleles to make a conclusion on the critical issue: that there was a match to the defendant's genetic profile. Accordingly, Cellmark's report was not used for the truth of the matter asserted and was not hearsay (emphasis added).

The court also rejected Williams' contention that his case was "'directly analogous' to the United States Supreme Court's recent holding of Melendez-Diaz v. Massachusetts," concluding that

Lambatos testified about her own expertise, judgment, and skill at interpretation of the specific alleles at the 13 loci, and confirmed her general knowledge of the protocols and procedures of Cellmark. Lambatos also conducted her own statistical analysis of the DNA match. She did not simply read to the judge, sitting as a fact finder, from Cellmark's report. This is in contrast to Cellmark's report, which did not include any comparative analysis of the electropherograms or DNA profiles and was not introduced into evidence. Cellmark's electropherogram, rather, was part of the process used by Lambatos in rendering her opinion concluding that the profiles matched. Thus, Lambatos' opinion is categorically different from the certificate in Melendez-Diaz (emphasis added).

Justice Sotomayor

As I noted in my post yesterday, Justice Sotomayor held in her Bullcoming concurrence that the Court was not presented with four factual circumstances in Bullcoming, including the circumstance "in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence." I then concluded that based upon the language used by Justice Sotomator, it was likely that she would find no Confrontation Clause problem with an expert witness offering opinion testimony pursuant to Rule 703 based upon a testimonial report prepared by an analyst who does not testify at trial.

My main question involved the issue of the circumstances under which Justice Sotomayor would find that a testifying expert's opinion was truly an "independent opinion" rather than an opinion dependent upon a testimonial report. For instance, I cited to the opinion of the Court of Appeals of North Carolina in State v. Hough, 2010 WL 702458 (N.C.App. 2010), in which a chemist weighed drugs and prepared a report but did not testify, and a second chemist used the report as the basis for expert testimony on the weight of the drugs without herself testing the drugs. I argued that under this circumstance, Justice Sotomayor should (but might not) find that the testifying chemist's opinion was not truly independent, meaning that there was a Confrontation Clause violation.

In Williams, however, Lambatos' opinion seemingly was truly "independent." Indeed, the trial court noted that Lambatos conducted "independent testing." Moreover, as the Supreme Court of Illinois noted, Lambatos "made her own visual and interpretive comparisons" and "conducted her own statistical analysis of the DNA match." Given these findings, I think it is clear that Justice Sotomayor will find that Lambatos' opinion was truly "independent" and will thus join the four Bullcoming dissenters to form a five Justice majority concluding that there was no Confrontation Clause violation in Williams. 

Now, will this be the correct ruling, and what will it tell us about cases like Hough in which there is not independent testing by the testifying expert? I'm not sure yet, but I will have more thoughts over the course of the summer.

-CM

Independence Day, Take 2: Supreme Court Grants Cert in Williams v. Illinois

Well, it now looks like the Supreme Court will soon answer the question I raised in my earlier post today. According to SCOTUSblog:

The Supreme Court, in its final orders on Tuesday, showed its continued interest in the Sixth Amendment’s Confrontation Clause, taking on a new case on whether an expert witness can be called as a stand-in for a lab analyst who actually did a test on criminal evidence, but did not appear at the trial.  That question was close to one that had been raised last week by Justice Sonia Sotomayor as the Court ruled in the case of Bullcoming v. New Mexico (09-10876)....

The new Confrontation Clause case is Williams v. Illinois (10-8505).  In that case, the Illinois Supreme Court ruled that prosecutors could introduce a forensic analyst’s report on a DNA test of evidence by offering it through the on-stand testimony of an expert witness, when the lab analyst was not available to testify.  The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done.  The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the lab report was being admitted not for its truth, but only to explain the expert’s opinion about the results.

That was quite similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in the Bullcoming case.  In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible.  Sotomayor sought to show that the decision was a narrow one, and listed several factual scenarios that she said were not covered.  One of them was a situation in which “an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”   The Court apparently granted the Williams case on Tuesday to judge that very situation. 

 I will have more on Williams tomorrow.

-CM

Independence Day?: What Does Justice Sotomayor's Bullcoming Concurrence Tell Us About Expert Opinions Based Upon Non-Admitted Testimonial Reports?

While I was away, guest blogger Ann Murphy wrote an excellent post about the Supreme Court's recent opinion in Bullcoming v. New Mexico. As she noted, in Bullcoming, the Court, in a 5-4 opinion, held that the Confrontation Clause was violated through the admission of a report concerning Bullcoming's blood alcohol content with the accompanying testimony of an analyst but without the accompanying testimony of the analyst who prepared the report. This was the result I previously predicted because Bullcoming was the easy case. As I noted in a previous post about Bullcoming:

I think that Bullcoming is an easy case given that the prosecution clearly introduced the absent analyst's report to prove the truth of the matter asserted in it. Given this, the case is just like Melendez-Diaz, and the Court should reach the same conclusion. And I feel safe in my belief because Confrontation Clause expert Richard Friedman has argued the same on The Confrontation Blog. As he notes, the tougher case is when an expert witness relies upon an absent analyst's report as the basis for opinion testimony but the report is not admitted into evidence. But, as he also notes, "that case is not the one before the Court [in Bullcoming], in which the prosecution clearly introduced a full report by the absent analyst. So, will the Court "simply resolve the case before it," or will it reach broader conclusions....? On that question, we will just have to wait and see.

Well, it turns out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provides a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman.

The Tougher Case

I have written a couple of posts about the tougher case flagged by Professor Friedman. One of those posts was about the opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010). As I noted in that post,

In Winston, Robert Earl Winston was convicted of aiding and abetting another who murdered Haines City Police Officer Christopher Todd Horner with the intent to prevent Officer Horner from communicating to law enforcement or a judge information related to the commission of a federal offense, and aiding and abetting another who knowingly used and carried a firearm during and in relation to a crime of violence, and, in the course thereof, murdered Officer Horner.

The opinion in Winston doesn't give us many details, but it does tell us that a medical examiner prepared a forensic report and did not testify at Winston's trial. Another medical examiner, however, reviewed the report and offered his "own" conclusions based upon this report, with the report not being admitted into evidence.

After he was convicted, Winston appealed, claiming that the admission of the medical examiner's testimony violated his rights under the Confrontation Clause based upon the Supreme Court's opinion in Melendez-Diaz v. Massachusetts. The Eleventh Circuit disagreed, finding that the testimony was admissible under Federal Rule of Evidence 703, which provides in relevant part that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted.

In another entry, I noted that the Court of Appeals of North Carolina reached the same conclusion in State v. Hough, 2010 WL 702458 (N.C.App. 2010), pointing out in the process that "[o]ther federal courts have reached this same conclusion under similar facts." 

Sotomayor's Concurrence

As noted, Bullcoming was a 5-4 opinion. 4 Justices found that the admission of the report did not violate the Confrontation Clause. 5 Justices found that it did. But what if the report were not technically admitted, with the prosecution claiming that the testifying analyst merely used the report as the basis for opinion testimony under Federal Rule of Evidence 703? Would the Eleventh Circuit, the Court of Appeals of North Carolina, and the other courts referenced in Hough be correct? Would this tougher case swing at least one of the Justices from the Bullcoming majority?

I'm not sure, but if I am reading Justice Sotomayor's concurrence correctly, I think that the answer is "yes." In Bullcoming, Justice Sotomayor concurred in part, with one of her stated goals being "to emphasize the limited reach of the Court's opinion." She then stated four factual circumstances that were not present in Bullcoming.

One of these was that 

this is not a case in which an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence. See Fed. Rule Evid. 703 (explaining that facts or data of a type upon which experts in the field would reasonably rely in forming an opinion need not be admissible in order for the expert's opinion based on the facts and data to be admitted). As the Court notes,...the State does not assert that Razatos offered an independent, expert opinion about Bullcoming's blood alcohol concentration. Rather, the State explains, "[a]side from reading a report that was introduced as an exhibit, Mr. Razatos offered no opinion about Petitioner's blood alcohol content...."...Here the State offered the BAC report, including Caylor's testimonial statements, into evidence. We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others' testimonial statements if the testimonial statements were not themselves admitted as evidence.

Based upon this statement, it seems pretty clear to me that Justice Sotomayor would have agreed with the opinions in Winston and Hough. Sure, she doesn't come out and say that she would have allowed opinion testimony about a testimonial report that was not itself admitted, but her acknowledgment that those facts would have presented a "different question" seems to imply such a result. Or does it?

Upon a second reading, I noticed that Justice Sotomayor said that Bullcoming was "not a case in which an expert witness was asked for his independent opinion...."   (emphasis added). This led me to wonder what she meant by the word "independent." In the previously mentioned Hough case, Aldridge was the analyst who prepared a forensic report but did not testify, and Alloway was the testifying analyst. In Hough,

[a]t trial, Kamika Daniels Alloway..., a forensic chemist with the Charlotte-Mecklenburg Police Department crime laboratory, testified that she reviewed the lab reports of...Aldridge...and believed his analysis to be accurate. Alloway testified that the substance found [a] the trash can that [Hough] was rolling constituted 17.05 pounds of marijuana. The three bags recovered from [Hough's] garage contained cocaine and weighed 7.93 grams, 7.72 grams, and 7.87 grams respectively. The weight of the cocaine and the marijuana varied from the weights recorded at the scene by [a detective]; however, Alloway testified that the weights in the lab report did not include the packaging. Alloway admitted on cross examination that she did not test any of the substances herself and was not present when Aldridge conducted the tests.

Looking at these facts, was there anything independent about Alloway's opinion? I would argue that the answer is "no." How could there be? Alloway had no personal knowledge of the substances. His testimony was entirely dependent on Aldridge's report. Is this what was meant by Justice Sotyomayor?

Independence Day

If it is what was meant by Justice Sotomayor, then she is in good company. In my preview of Bullcoming, I cited to Julie Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L.J. 827 (2008). In the article, Professor Seaman noted that

The most common basis for court holdings rejecting a Confrontation Clause challenge to the introduction of expert opinion is that the statements relied on by the experts in forming their opinions were not offered for their truth, but only as a basis for the expert's opinion. Because the Supreme Court in Crawford clearly stated that the decision applied only to testimonial statements offered for their truth, a finding of a non-hearsay purpose allows these courts to hold that their admission does not amount to a constitutional violation.

A representative example of such non-hearsay reasoning is this statement from a case involving a California gang prosecution:

Crawford limits the introduction of hearsay directly against a defendant but does not affect the type of evidence relied upon by an expert in forming his opinion. In our case, the prosecution did not offer the contents of the police reports as hearsay evidence of the truth of the matters asserted in the reports. The reports were mentioned only as a basis for [the expert's] opinion that [the defendant] was a Sureno gang member. [The defendant] had the opportunity to challenge the testimony by demonstrating the underlying information was incorrect or unreliable. He did not. There was no denial of his confrontation rights.

If, as the court says, the appropriate manner for the defendant to challenge the expert's opinion would be to demonstrate that the underlying information is "incorrect or unreliable," then it is plain that it is in fact being offered for its truth. If it were not offered for its truth, its reliability would be irrelevant. The court's own description of the jury instruction given in the case supports the conclusion that the testimonial statements were indeed offered for their truth. The jury in Valerio “was advised that the expert's opinion was only as good as the facts and reasons on which it was based, and that the jury should consider the proof of such facts in determining the value of the expert's opinion.”

Furthermore, if the opinion is only as good as the facts on which it is based, and if those facts consist of testimonial hearsay statements that were not subject to cross-examination, then it is difficult to imagine how the defendant is expected to "demonstrate the underlying information was incorrect or unreliable." According to Crawford, the only constitutionally sanctioned manner in which the reliability of testimonial hearsay may be tested is by cross-examination.

I wholeheartedly agree with Professor Seaman's analysis and hope that Justice Sotomayor's use of the phrase "independent opinion" means that she would not permit the type of testimony admitted in Hough.

So, if this reading is correct, when would an analyst besides the one who prepared the report be able to rely upon the report while still delivering an independent opinion? Well, assume that in Hough, Alloway did himself test the drugs and merely used Aldridge's report to corroborate his conclusions. In this case, Alloway seemingly would be allowed to rely upon the testimonial report while still delivering an independent opinion.

Or, look at one of the other factual circumstances Justice Sotomayor stated was not present in Bullcoming:

Second, this is not a case in which the person testifying is a supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test at issue. Razatos conceded on cross-examination that he played no role in producing the BAC report and did not observe any portion of Curtis Caylor's conduct of the testing....The court below also recognized Razatos' total lack of connection to the test at issue....It would be a different case if, for example, a supervisor who observed an analyst conducting a test testified about the results or a report about such results. We need not address what degree of involvement is sufficient because here Razatos had no involvement whatsoever in the relevant test and report.

In this case, it would be at least arguable that the testifying analyst could rely upon the report while still offering an independent opinion based upon his personal knowledge.

Conclusion

So, will lower courts take Justice Sotomayor's concurrence as evidence that cases like Winston and Hough were correctly decided? Or will they use the "independent opinion" language to find that the tougher cases violate the Confrontation Clause? And what will the Supreme Court ultimately decide if it grants cert in such a case? I would like to think that courts will follow the logic of Professor Seaman, but I think that they will conclude that "Melendez-Diaz did not do away with Federal Rule of Evidence 703."

-CM

Deepwater Horizon Order - Marital Privilege when using a Company Computer

An interesting recent discovery dispute Order reflects the fascinating balance between the spousal privilege and one’s expectation of privacy in the use of his or her computer email at work. A Magistrate Judge in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, On April 20, 2010 [United States District Court for the Eastern District of Louisiana, (MDL No. 2179 – Section J), available at: http://www.theemployerhandbook.com/oil.pdf]determined that a husband had no reasonable expectation of privacy in emails sent to his wife from his work computer. The husband’s assertion of the marital privilege was denied, and he was unsuccessful in his efforts to block the release of those emails.

As we all know, the Deepwater Horizon oil drilling rig suffered an explosion on April 20, 2010. As a result, 11 workers died and the world saw the largest accidental oil spill in history. Many parties instituted litigation against the manufacturer of the rig, the owners of the rig, and numerous other parties. This Order concerning the marital privilege is one of many issued thus far in the case. 

Brian Morel was a drilling engineer employed by BP (British Petroleum) on the Macondo Well – the site of the drilling on the date of the explosion. He married a BP production engineer in 2008. His wife did not have any professional responsibilities on the Macondo Well. He sent her many email messages through their BP work accounts. The Plaintiff Steering Committee (PSC), the United States, the States of Louisiana and Alabama, Halliburton, and other litigants scheduled a deposition of Mr. Morel. His counsel informed the parties that he would invoke his Fifth Amendment privilege in response to any questions they might ask. BP had already turned over email sent by Mr. Morel. He objected to the release of 93 of these emails based upon an asserted marital privilege. In this Order, Magistrate Judge Shushan determined that Mr. Morel had no expectation of privacy in the emails sent to his wife through their BP account and the marital privilege did not apply. This is instructive as presumably we would have the same result if a party wishes to use that privilege at trial and there is an evidentiary objection. 

The emails were sent from Mr. Morel’s email account with BP to his wife’s email account with BP. His attorney argued that there was indeed an expectation of privacy in the emails because there was no evidence that BP monitored its employees’ emails and the parties seeking the emails had not met their burden to overcome the presumption of privilege. 

BP had a “pop-up screen” that appeared when their employees used their work computers and it stated the following: “within the bounds of law, electronic transmissions through internal and external networks may be monitored to ensure compliance with internal policies and legitimate business purposes.” BP also informed employees that personal data and communications were not private and that email was “subject to potential compulsory disclosure by subpoena.”  Despite these warnings, Mr. Morel’s counsel argued that BP had no prohibition against employees using the email network for personal use, and no policy of actual monitoring had ever been shown.  “Mr. Morel urges that the determination is not made on the basis of the written BP policies but on how those policies were implemented.”

Judge Shushan analyzed a 5^th Circuit case, U.S. v. Slanina, 283 F. 3d 670 (5^th Cir. 2002) in which the Court found an expectation of privacy despite an employee’s use of his work computer. In her Order, Judge Shushan distinguished Slanina because in that case, there was also no evidence that there was any sort of computer policy in place and there was no evidence that employees were informed of a dissemination policy or monitoring. She also considered a case cited by Mr. Morel, In re: Asia Global Crossing, Ltd., a bankruptcy case from New York (322 BR 247 (Bankr. S.D.N.Y. 2005)) that set forth the following four factors for determining an employee’s expectation of privacy:

1. Does the corporation maintain a policy banning personal or other objectionable use;
2. Does the company monitor the use of the employee’s computer or email;
3. Do third parties have a right of access to the computer or emails; and
4. Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies. 

Judge Shushan decided that other cases did not require a finding that a company banned personal use of computers and email and that there was no specific evidence in this case that monitoring did not occur within BP. She decided to follow the reasoning of these other cases and specifically found the following:

It is not objectively reasonable for an employee to have an expectation of privacy where the employers’ policies clearly demonstrate that: 1) the employee’s electronic communications are not private; 2) they may be monitored and accessed by the employer; and 3) they are subject to production by a subpoena.

It is an interesting Order and brings to mind some of the similar cases of employee use of computers to contact and communicate with their attorneys. For an interesting recent case on that front, see Holmes v. Petrovich Development Co., LLC, a California Appellate case, available at: http://scholar.google.com/scholar_case?case=9181011446702902609&hl=en&as_sdt=2&as_vis=1&oi=scholarr.