EvidenceProf Blog

Simple Fracture: Supreme Judicial Court Of Massachusetts Finds No Problem With "Fracture Match" Testimony

A "fracture match" is a "physical match" or "jigsaw match" that occurs when a substance or an item has been broken into one or more pieces, and the jagged ends are observed to fit together. The underlying premise of a "fracture match" is that an item that is broken or torn by human action will not be fractured in exactly the same way twice. This is because the application of human force is not precisely reproducible, and the characteristics of a break or a tear will be different every time. Thus, a break or a tear brought about by human force will be unique, and the resulting ends at the point of the break or tear will interlock in a unique "match." And, as the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Gomes, 944 N.E.2d 1007 (Mass. 2011), "fracture-match" testimony has been accepted in at least six States and has seemingly not yet been rejected. 

In Gomes, John Gomes was charged with murder in the first degree in connection with a shooting murder. After the subject shooting,

one eyewitness directed an officer to the area behind 26 Ridgewood Street. The officer reached under an unenclosed porch and recovered a Calico M950 semiautomatic handgun with a velvet bag attached by black electrical tape to the spent cartridge ejection port of the gun. The bag contained eighteen spent shell casings. The jury could have found, based on the testimony of a ballistics expert, that the gun was the murder weapon and that the eighteen spent shell casings had been fired from the gun. 

Police later obtained a search warrant for Gomes' apartment, and

[a]mong the items seized during the execution of the warrant were four magazines about guns and a roll of black electrical tape from the top dresser drawer in the defendant's bedroom. A senior criminalist with the Boston police department compared the end of the roll of tape with the ends of a piece of tape affixed to the Calico M950 handgun. She found a "fracture match" from which she opined that the piece taken from the gun had been severed from the roll of tape seized from the defendant's bedroom dresser drawer.

At trial, the criminalist testified "that one end of a piece of black electrical tape that held the velvet bag to the ejection port of the gun matched the end of the roll of electrical tape seized from the defendant's apartment."

After he was convicted, Gomes appealed, claiming, inter alia, that the Commonwealth failed to establish that the science of "tape-end" (fracture) matching was reliable, that the criminalist was a competent expert in this field, and that his counsel's failure to challenge the criminalist's opinion on these grounds constituted ineffective assistance of counsel.

The Supreme Judicial Court of Massachusetts disagreed, first noting that it basically still follows Frye, holding that "general acceptance in the relevant scientific community will continue to be the significant, and often the only, issue." Applying this standard, the court found that the trial judge acted propely in accepting

the foundational testimony of the criminalist as to the general acceptance of fracture match theory within the scientific community. Moreover, he indicated that he relied on the witness's education, training, and experience, and looked to his own common sense in evaluating the reliability of fracture match theory, which depends not on esoteric scientific principles but rather on common experience that is within the grasp of the ordinary jury. This analysis was appropriate in the circumstances....We accept the trial judge's observation, and conclude that he acted within his discretion in allowing the fracture match evidence.

Moreover, the court noted that 

"fracture-match" testimony has been accepted in at least five States, and the defendant has directed our attention to no case where the theory has been rejected. See Davis v. State, 2 So.3d 952, 956 (Fla.2008), cert. denied, ––– U.S. ––––, 129 S.Ct. 2872, 174 L.Ed.2d 585 (2009) (broken knife blade);Grim v. State, 841 So.2d 455, 458–459 (Fla.), cert. denied, 540 U.S. 892, 124 S.Ct. 230, 157 L.Ed.2d 166 (2003) (masking tape); State v. Dressner, 45 So.3d 127, 134 (La.2010), cert. denied, 79 U.S.L.W. 3370 (Mar. 7, 2010) (broken knife blade); State v. Smith, 988 So.2d 861, 867 (La.Ct.App.2008) (wood);Commonwealth v. McCullum, 529 Pa. 117, 121, 602 A.2d 313 (1992) (broken jewel stone in bracelet);State v. Zuniga, 320 N.C. 233, 251–252, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 108 S.Ct. 359, 98 L.Ed.2d 384 (1987) (pieces of torn newspaper); State v. Jackson, 111 Wash.App. 660, 667, 46 P.3d 257 (2002), aff'd, 150 Wash.2d 251, 76 P.3d 217 (2003) (duct tape).

Finally, the court found that the criminalist was properly qualified as an expert witness because

The witness has a master's degree in forensic chemistry. She has had a wide range of fracture match experience involving a wide variety of materials in the course of her graduate studies in forensic chemistry. She had specific practice in performing fracture matches in workshops at graduate school. At least one court has held that fracture match testimony is an appropriate subject for opinion testimony by a forensic chemist. 

(Hat tip to Michael Avery)

-CM

His Dying Words: NY Court Finds Confrontation Clause Exception For Testimonial Dying Declarations

A few months ago, I posted an entry about the Supreme Court of Wisconsin becoming the latest court to find that the admission of testimonial dying declarations does not violate the Confrontation Clause. At the time, I noted that "[s]ince Crawford, no state court has found that the admission of a testimonial dying declaration violated the Confrontation Clause." And the recent opinion of the Supreme Court of New York, Appellate Division, Second Department, in People v. Clay, 2011 WL 2570701 (N.Y.A.D. 2 Dept. 2011), doesn't change things.

In Clay, 

Igol Isaacs was shot on a street in Brooklyn. Police Captain Brian McGee responded to a radio call seeking assistance at the scene of the shooting. When McGee arrived at that location, there were other officers and a police van already present. McGee observed Isaacs lying face-up on the sidewalk, and a police officer with him. Without speaking with the other officers, McGee approached Isaacs, who was gasping for air. McGee knelt down beside him and asked "Who shot you?" Receiving no response, McGee then stated to Isaacs: "I don't think you're going to make it. Who shot you?" The victim responded, saying what McGee heard as "Todd shot me." When McGee sought to confirm "Todd shot you," the victim stated "[N]o. No. Tom shot me. Tom. Tom." McGee "kept asking" Isaacs "Tom, who?" but, according to McGee, it was difficult for Isaacs to breathe and he was unable to speak any further. 

Thomas Clay was subsequently charged with second-degree murder in connection with the death of Isaacs, and McGee testified to Isaacs' statements at trial. 

After he was convicted, Clay appealed, claiming, inter alia, that the admission of Isaacs' statements violated the Confrontation Clause because they were testimonial and Isaacs did not testify at trial. The Second Department agreed with Isaacs that Clay's statements were testimonial because, inter alia,

from Isaacs's point of view, his statement "Tom shot me" could not reasonably be viewed as "proclaim[ing] an emergency and seek[ing] help;" and

while McGee's inquiry was made at the crime scene, shortly after the shooting had occurred, the totality of the surrounding circumstances objectively indicate that McGee's primary purpose was "to nail down the truth about past criminal events....He intended to, and did, elicit statements that "do precisely what a witness does on direct examination"—"'accuses' a perpetrator of a crime...."

The Second Department then noted, though, that in Crawford the Supreme Court pointed out that "[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are...." The Second Department thus concluded that this

dicta contained in Crawford is strongly suggestive of the Supreme Court's position on this issue, particularly in light of the decision's fundamental reasoning that "the 'right...to be confronted with the witnesses against him,' is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding...."

Accordingly, the Second Department "join[ed] all of the other state courts that have decided this question, and conclude[d] that 'the Sixth Amendment incorporates an exception for testimonial dying declarations....'" The court thus found no problem with the admission of Isaacs' statements because they clearly qualified as dying declarations:

Isaacs was shot six times. Three of the bullets entered Isaacs's abdomen, the right side of his back, and the left side of his back, respectively, perforated his kidney, liver, and small and large intestines, fractured two vertabrae and the spinal cord, and passed into his chest cavity, perforating the middle and lower lobes of the right lung. Isaacs's condition appeared to be declining, rather than improving, at the time the declarations were made, as McGee testified that Isaacs was struggling to breathe and once he told McGee that "Tom" shot him, was unable to speak any further in response to McGee's subsequent inquiries. Further, while there were no medical personnel on the scene at that time who could have expressed an opinion to Isaacs as to his condition, McGee informed Isaacs that he did not think he would live. There is also no indication that Isaacs, who was shot at relatively close range, based his identification of the shooter on suspicion or conjecture. Under these circumstances, Isaacs's statement "Tom shot me" was properly admitted as a dying declaration....

(Hat tip to for Fred Moss the link)

-CM

They Call Them The Diamond Dogs: Cadaver Dogs, Take 2

In the wake of the Casey Anthony verdict, I thought that I would do another post about cadaver dogs. In my prior post on the subject, I compared the standards used by courts (or at least the Court of Appeals of Texas) in allowing testimony concerning scent-lineup dogs and cadaver dogs. As I noted in that post, the Court of Appeals of Texas has held that

In determining whether a dog used in a scent lineup was qualified, we have applied five factors....In Risher, we held that a scent-lineup dog is qualified if "it (1) is of a breed characterized by acuteness of scent and power of discrimination, (2) has been trained to discriminate between human beings by their scent, (3) has been found by experience to be reliable, (4) was given a scent known to be that of the alleged participant of the crime, and (5) was given the scent within the period of its efficiency."... The Fourteenth Court of Appeals applied these same five factors in Winston to determine the reliability of a dog that tracked a burglary suspect based on human scent left at the crime scene.

Conversely, the Court of Appeals of Texas held that

Searches by cadaver dogs are different from searches by dogs for scents left by live humans. Deputy Pikett testified that cadaver searching is a less rigorous skill because it only requires the dog to be able to distinguish between human scents and animal scents, and the dog need not further distinguish between individual humans. As we explain below, because the skills necessary for a cadaver dog differs from the skills necessary for scent lineups or the tracking of suspects, we conclude that only some of the five factors in Risher apply to searches by cadaver dogs.

The rest of the post then went into more detail about the ways in which it is easier to admit cadaver dog testimony that scent-lineup dog testimony. But should cadaver dog testimony be readily admitted? Is the use of cadaver dogs generally accepted in the relevant scientific community, the only factor under Frye and one of the factors under Daubert? That was the question addressed by the Court of Special Appeals of Maryland in Clark v. State, 781 A.2d 913 (Md.App. 2001).

In Clark, Hadden Clark was convicted of the murder of Michelle Dorr despite the fact that Dorr's body had not then been located. What the police did find was a map of a cemetery with an asterisk during a search of Clark's truck, and they used the map to find the place where Clark allegedly temporarily buried Dorr's body. Police then "released the hounds." A first cadaver dog, Dan, criss-crossed the cemetery, then indicated an alert in the area of a soil disturbance, which was near a headstone marked "Clark." A second cadaver dog then alerted on an area behind Haden's grandfather's grave, which was the same place where Dan had initially alerted.

Hadden later filed a motion in limine to exclude cadaver dog testimony, and

At the hearing concerning the motion in limine, [Hadden] presented the testimony of Dr. Ann Marie Mires, the Director of the Identification Unit of the Boston Medical Examiner's Office, who qualified as an expert in the field of forensic anthropology and the identification of human remains. Dr. Mires has experience using dogs to locate human remains in cemeteries. In light of modern embalming and burial practices, she believed a properly trained cadaver dog would be able to distinguish a legitimate grave from a clandestine one within a cemetery because during embalming all body fluids are drained from the corpse, whereas persons who bury corpses in clandestine graves usually do not remove body fluids.

According to Dr. Mires, there are only three tools available to locate clandestine burials of human bodies: Trained cadaver dogs, ground penetrating radar, and shovels. In Dr. Mires's opinion, the alert of a cadaver dog, standing alone, is not considered sufficient to show to a reasonable degree of scientific certainty that human remains are or were present at the location of the alert. After a cadaver dog alerts, digging or ground penetrating radar are used. But the fact that neither of these instruments reveals a body does not necessarily invalidate the cadaver dog's alert, because there is no chemical test yet devised that can confirm whether a body had once decomposed at a particular site. Dr. Mires is participating in the preliminary stages of scientific work to develop such a chemical test.

Dr. Mires testified that the use of cadaver dogs "in trying to determine the existence or the one-time existence of human remains at a particular location is a concept that is widely accepted in the forensic anthropology and pathology fields." Despite this reliance, a dog can falsely alert because water flowing from the site of a human cadaver may cause the dogs to alert at a place removed from the spot where a body was buried or because the dog is fatigued or because the handler misreads a dog's actions.

The trial court, however, denied the motion in limine. After Hadden was convicted, he appealed, claiming, inter alia, "that the evidence regarding the alerts by the cadaver dogs was inadmissible because 'it was unreliable' under Frye/Reed and Maryland Rule 5-702." Specifically, Hadden argued that

The process of training dogs to alert on the products of decomposition, as opposed to training them to alert on cadavers themselves, is not generally accepted within the scientific community, and accordingly, it does not meet the standard set forth in Md. Rule 5-702 or in the Frye/Reed cases. As argued supra, Dr. Mires admitted that research into this training and use of dogs is in the preliminary stages, and is not yet fully accepted. It is not sufficient to show, to a reasonable degree of scientific certainty, that human remains are or have been present. Since this technique for finding and identifying soil in which human remains were once present is not generally accepted by the scientific community, the judge erred in admitting evidence relating to it.

The Court of Special Appeals of Maryland disagreed concluding that this argument was

based on a false premise, i.e., that Dr. Mires "admitted that research into [the]...training and use of dogs is in the preliminary stages, and is not yet fully accepted." Dr. Mires never testified that research that delves into the training and use of cadaver dogs is in the preliminary stages. What was, according to her testimony, in the "preliminary stages" was her own work in attempting to discover a way of detecting fat, muscle, liquid, and other human byproducts that are deposited in the soil when a human body is decomposing. And, as already mentioned, Dr. Mires said that the use of cadaver dogs in trying to determine the existence, or the one-time existence, of human remains at a particular location is a widely accepted practice in the fields of forensic anthropology and pathology. Under these circumstances, the Frye/Reed test was met.

-CM

Be My Guide: The Massachusetts Guide to Evidence

In a recent post about Georgia becoming the 43rd state to create state rules of evidence similar to the Federal Rules of Evidence, I noted that

The Supreme Judicial Court of Massachusetts famously refused to adopt the Proposed Massachusetts Rule of Evidence in 1982 and has shown no signs of wavering in its position. California and Kansas both have codified rules of evidence based upon the Uniform Rules of Evidence, and I don't see them jumping tracks to the Federal Rules of Evidence any time soon.

Moreover, I have written several previous posts about some of the problems caused by Massachusetts' failure to have codified rules of evidence (see, e.g. here). That said, Massachusetts lawyers and judges aren't rudderless in this regard. Rather, as the Honorable Peter W. Agnes, Jr. recently pointed out to me, there is the Massachusetts Guide to Evidence.

The following is an e-mail sent to me by Justice Agnes concerning the Guide:

Some time ago you wrote a post about the state of evidence law in Massachusetts wondering why, among other things, we had not adopted the Federal Rules or otherwise codified our law. I want to bring you up to date. For years I have advocated that our Supreme Judicial Court mount a new effort to adopt rules of evidence. As you know, the first effort was undertaken in 1978 and ended in 1982 when the Court turned down a product prepared by a distinguished committee of lawyers, judges, and academics that was modeled on the federal rules but preserved much of our common law. In 2005, after several unsuccessful attempts to restart the process, I persuaded the three largest bar associations in our state (the Massachusetts Bar Association, the Boston Bar Association and the Massachusetts Academy of Trial Lawyers) to support a resolution I drafted calling on the Court to appoint a Standing Committee to develop a statement of Massachusetts Evidence law modeled on the national Restatements of the Law as a transitional product to demonstrate that a codification was possible. After a period of negotiation, then Chief Justice Margaret Marshall announced that the Court had agreed to appoint a Standing Committee on the Law of Evidence and to charge it with responsibility to produce A Guide to Massachusetts Evidence Law organized like the Federal Rules but containing the current law of Massachusetts. 

The Committee chaired by Justice Marc Kantrowitz of our Appeals Court, worked very hard for several years. One of our guiding principles was to use the words of the Federal Rule whenever we found that Massachusetts law was consistent with the Federal law. We use the detailed notes in many cases to point out areas of difference between Massachusetts law and Federal rule when we decided that the local law and federal law were essentially the same. A good illustration is the law regarding expert witnesses. We published several interim drafts for comment and reached out to evidence teachers at each of the state's law school to serve as readers and advisors. We processed hundreds of comments from the bench and the bar. Eventually, a smaller Executive Committee emerged to complete the drafting. In 2008 the Flaschner Judicial Institute, a non-profit organization dedicated to judicial education, published the first draft of the Massachusetts Guide to Evidence. Today, the Executive Committee (Justice Kantrowitz, me, Judge David Lowy of the Superior Court, Judge Mark Coven of the District Court, Attorney Elizabeth Mulvey of Boston, an experienced and highly regarded civil litigator, Professor Philip Hamilton of the New England School of Law, Attorney Barbara Berenson, Staff Counsel to the Justices of the Supreme Judicial Court, and our reporter, Appeals Court Clerk Joseph Stanton and staff) have published the third version of the Guide (2011 edition) and are at work on the 2012 edition we expect to publish and distribute again in January, 2012. We meet quarterly and exchange ideas and suggestions throughout the year. 

Although the Guide is only guidance and not rules, it was "approved for use" by our Supreme Judicial Court in 2008. It has been distributed by the Flaschner Judicial Institute to every judge at no cost and has been made available for sale at close to cost by several organizations. The text of the Guide is available as a free download from the Supreme Judicial Court's website under a public copyright. 

There has been a remarkable change in practice since the publication of the Guide in 2008. It is carried into court by lawyers every day. It is on every judge's bench. It is used in judicial and legal education programs. At sidebars when trial judges are called to make those quick decisions about admissibility that were not the subject of motions in limine, we now have a device to bring us to a common starting point and which often supplies the answer. The Guide has been cited nearly 200 times by our appellate courts since it first appeared in 2008. And, it is being kept current by an Executive Committee that reads and reviews every evidence-related decision by a Massachusetts appellate court as well as pertinent decisions by the United States Supreme Court and the First Circuit.

It is unclear at this time whether our Supreme Judicial Court will decide to develop a set of rules or retain something like the Guide as an authoritative, but secondary, source of the law. Thus, the Massachusetts Guide to Evidence is not a complete answer to the question "why not rules of evidence in Massachusetts?" but it does represent an important step toward a system of evidence law in Massachusetts that is more accessible and comprehensible than the complex of common law decisions, statutes, and rules that for centuries characterized our law.

-CM

You've Got It: Court Of Appeals Of Ohio Upholds Breach Of Contract Verdict Based On Rule 1004(3)

Like its federal counterpart, Ohio Rule of Evidence 1002 (the Best Evidence Rule) provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.

That said, like its federal counterpart, Ohio Rule of Evidence 1004(3) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]t a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be subject of proof at the hearing, and that party does not produce the original at the hearing....

Rule 1004(3) is pretty rarely applied, so it is always nice to come across a case like Publishing Group, Ltd. v. Cooper, 2011 WL 2418654 (Ohio App. 10 Dist. 2011), which shows the Rule in action.

In Cooper, 

Publishing Group contacted Cooper and offered to print an advertisement for Cooper's business in Westerville Magazine's November/December 2008 issue. Cooper accepted Publishing Group's offer. On September 2, 2008, Cooper signed an agreement reserving advertisement space in Westerville Magazine's November/December 2008 issue. The agreement obligated Cooper to pay Publishing Group $1,500 within 30 days from the date that Publishing Group issued an invoice to him.

Publishing Group included Cooper's advertisement in the November/December 2008 issue of Westerville Magazine. Although Publishing Group sent Cooper an invoice requesting payment in early October 2008, Cooper refused to pay for the advertisement. According to Cooper, the agreement he signed provided that if he did not pay for the advertisement by October 2, 2008, Publishing Group would not print it. Cooper apparently believed that by not submitting payment to Publishing Group by October 2, 2008, he relieved both parties from their obligation to perform under the agreement. 

Publishing Group thereafter brought a breach of contract action against Cooper. At trial, Publishing Cooper did not introduce the original agreement into evidence, and the court ultimately found that Cooper breached the contract. Cooper thereafter appealed, claiming, inter alia, that Publishing Group violated Rule 1002 by not introducing the original agreement at trial. The Court of Appeals of Ohio, Tenth District, disagreed, concluding that a Publishing Group employee

testified that a Publishing Group employee transmitted the agreement to Cooper, who signed it, and faxed a copy of the signed agreement to Publishing Group. Cooper, therefore, has always retained possession of the original agreement. Publishing Group sued Cooper for breach of contract, thus putting Cooper on notice that the terms of the agreement would be at issue during trial. Cooper, however, never produced the original agreement at trial. As Publishing Group satisfied all the requirements of Evid.R. 1004(3), that exception relieved Publishing Group from the burden of presenting the original agreement at trial. Therefore, we conclude that the trial court did not err in permitting Publishing Group to prove the existence and terms of the agreement through oral testimony.

-CM

None Of Your Business: Supreme Court Of Tennessee Finds Doctor's Report Not A Business Record In 4th Of July Case

Like its federal counterpart, Tennessee Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses made at or near the time by or from information transmitted by a person with knowledge and a business duty to record or transmit if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with Rule 902(11) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, profession, occupation, and calling of every kind, whether or not conducted for profit.

So, what criteria do Tennessee court use in determining whether a document qualifies as a business record under Tennessee Rule of Evidence 803(6)? Well, let's take a look at Arias v. Duro Standard Products Co., 303 S.W.3d 256 (Tenn. 2010), for the answer.

In Arias, 

Alisia Arias began working for defendant Duro Standard Products (Duro Standard), a paper bag manufacturer, in April 2006. On June 7, 2006, a fan near Ms. Arias's work station malfunctioned and blew dust onto her body and face. Ms. Arias filed an action against Duro Standard and its workers' compensation insurer on November 26, 2007, seeking workers' compensation benefits for a pulmonary injury sustained as a result of the June 7 incident.

At a trial held on October 23, 2008, Ms. Arias testified that her throat became clogged on June 8, 2006, and that she sought medical treatment three times during the following week. She returned to work for two weeks during which time she participated in the cleaning of Duro Standard's facility by using compressed air to blow paper dust from manufacturing equipment. Ms. Arias wore a mask and used an inhaler while cleaning the equipment. Over the Fourth of July holiday, Ms. Arias "blacked out" during a memorial service and did not return to work. 

Arias was later examined by several doctors, including Dr. Grafton Thurman, a rheumatologist and pulmonary specialist, who performed a medical evaluation of Arias at the request of Arias' attorney. Arias thereafter "sought workers' compensation benefits, contending that she had developed occupational asthma as a result of exposure to dust in the workplace." Thereafter,

At trial, Ms. Arias sought to introduce Dr. Thurman's report into evidence pursuant to Tennessee Rule of Evidence 803(6), the hearsay exception for records of regularly conducted activity, often referred to as the business records exception. To establish that the report satisfied the requirements of this hearsay exception, Ms. Arias offered the deposition testimony of Jennifer Aycock, who had worked as Dr. Thurman's medical assistant. Ms. Aycock testified that Dr. Thurman was a licensed physician who specialized in pulmonary medicine, that he conducted independent medical examinations during the course of his business, that records of his reports were generated at or near the time of these examinations, and that the report of his evaluation of Ms. Arias was such a record....Duro Standard...argued that the medical report d[id] not qualify as a business record that would be admissible under Rule 803(6). The trial court overruled Duro Standard's objection and admitted the report pursuant to Tennessee Rule of Evidence 803(6) without explaining the basis for its ruling.

After the trial court found for Arias, Duro standard appealed, claiming, inter alia, that Dr. Thurman's report was inadmissible under Tennessee Rule of Evidence 803(6). In addressing this issue, the Supreme Court of Tennessee noted that five criteria must be satisfied for a document to qualify as a business record:

1. The document must be made at or near the time of the event recorded;

2. The person providing the information in the document must have firsthand knowledge of the recorded events or facts;

3. The person providing the information in the document must be under a business duty to record or transmit the information;

4. The business involved must have a regular practice of making such documents; and

5. The manner in which the information was provided or the document was prepared must not indicate that the document lacks trustworthiness.

The court then found that Dr. Thurman's report failed this test. According to the court,

Dr. Thurman generated this report for the purpose of litigation in the course of his "business" as an evaluating expert. He was not a treating physician, and his opinion was sought solely for the purpose of establishing causation and impairment in this workers' compensation litigation. "An extraordinary report prepared for an irregular purpose, particularly when prepared with litigation in mind, may not be made in the regular course of business and may be inadmissible as a business record under Rule 803(6)." 

-CM

What Is This, An Interrogation?: Court Of Appeals Of Wisconsin Finds Trial Judge Crossed Line With Judicial Interrogation

Like its federal counterpart, Wis. Stat. Ann. Section 906.14 provides:

(1) Calling by judge. The judge may, on the judge's own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.

(2) Interrogation by judge. The judge may interrogate witnesses, whether called by the judge or by a party.

(3) Objections. Objections to the calling of witnesses by the judge or to interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.

So, when does a judge cross the line from engaging in proper interrogation to becoming an improper advocate? According to the Court of Appeals of Wisconsin, the line is crossed when a judge engages in behavior like the judge in In re Exsavon A.J., 2011 WL 2462975 (Wis.App. 2011).

In Exsavon A.J., Roberta J.W. appealed from orders terminating her parental rights to her children, Exsavon and Dorraj, and from the order denying her motion for posttermination relief. According to the Court of Appeals,

During the trial, the trial judge asked countless questions of the witnesses and interjected numerous times. The County called Roberta adversely as its first witness in its case-in-chief. Roberta's testimony span[ned] over 100 pages on this first day of trial. The judge interject[ed] in some fashion on 95 of the 104 pages of the transcript of Roberta's testimony Roberta's testimony.

The judge also interrogated other witnesses in a manner that appeared adverse to Roberta. For instance,

During direct testimony of Roberta's former case manager, Penny Nevicosi, the judge engaged in the following exchange, eventually prompting the guardian ad litem (GAL) to lodge a strident objection:

 

[Judge]: Excuse me, from your, from your expertise and training, is it a good thing or a bad thing for a child of tender years to have to be the one that tries to comfort a parent, rather than vice-versa?

[Nevicosi]: I would say that's a bad thing.

[Judge]: And if a parent gets herself or himself in a situation where a child has to come over and try and calm and make the parent feel better and that child is, you know, two, three, four years of age type of thing, a parent who allows that to happen is—is that parent putting her child's or his child's needs first?

[Nevicosi]: No.

[Judge]: Did you explain to her that that was not—that was not only something she shouldn't do in front of the child, but that she was forcing the child to try and be her comforter, and that that was a very poor role model?

[Nevicosi]: Yes....

When the judge continued to engage is this sort of questioning several more times, the guardian ad litem lodged an objection, "want[ing] to make a record right now" that "on five occasions today" the judge was abusing his function and was not being fair to Roberta.

On appeal, the Court of Appeals of Wisconsin had to determine whether the trial judge exceeded the scope of his discretion under Wis. Stat. Ann. Section 906.14 in interrogating witnesses. And, according to the court,

The opinions of our appellate courts are replete with precatory admonitions that trial judges must not function as partisans or advocates or engage in excessive examination....In reversing a conviction in which a trial judge crossed the line of propriety, our supreme court recently explained that the trial judge "must not permit [himself or herself] to become a witness or an advocate for one party. A defendant does not receive a full and fair evidentiary hearing when the role of the prosecutor is played by the judge and the assistant district attorney is reduced to a bystander." a bystander." 

Moreover, the court held that

While a trial judge is permitted to exercise his or her discretion and ask questions during the course of a trial, this discretion "should be most carefully exercised," and the judge's questions must not betray bias or prejudice or bespeak a mind made up....Accordingly, while a trial judge should be permitted to ask questions in order to clarify material lines of inquiry, he or she must not cross the “fine line” into the appearance of partisanship.

The court then found that the case before it was not comparable to State v. Carprue, 683 N.W.2d 31 (Wis. 2004), in which the appealing party did not object to judicial interrogation at trial, and the Supreme Court of Wisconsin failed to find plain error. Instead, according to the Court of Appeals,

even though the trial judge faced a strong objection to his unfair conduct by the GAL, he made no effort to alter his objectionable conduct. The record reveals that the trial judge in fact doggedly carried on with partiality. During Roberta's trial, the judge exhaustively interrogated her. During Roberta's adverse testimony, the transcript reveals the judge's questioning and interjections on 95 of the 104 pages of trial transcript. Similarly, the judge questioned numerous other witnesses extensively. The judge's posttermination explanation that it was simply attempting to clarify the evidence in its role as a fact finder does not account for the improper role the judge played in Roberta's trial.

To be clear, the judge's lack of detachment is demonstrated not merely by the quantity of questions he asked, but by the nature of many of his questions. We agree with Roberta that contrary to the judge's opinion that he was merely attempting to clarify by “restat[ing] the testimony,” the judge's questions and supposed clarifications too often put words into the witnesses' mouths and revealed a bias against Roberta. The judge, at several points during testimony, and before Roberta had completed her case, gave indication that he had already decided the case adversely to Roberta....

Most disturbing to this court are the occasions the judge interrupted witness testimony in a plain attempt to impeach Roberta's credibility....

The trial judge's pervasive quantitative involvement coupled with its qualitative questioning led to the judge effectively usurping the role of counsel.

What I find most interesting about the opinion is the court's implicit acknowledgement that it might not have reversed in the absence of an objection by the GAL under a plain error analysis. I can understand the logic in requiring a party to object to judicial interrogation, but I feel that such a requirement places the party in an awkward position in relation to the judge. Eventually, I will get around to an article on this topic.

-CM