EvidenceProf Blog

Tell Me Lies; NJ Case Reveals Differences Between New Jersey & Federal Rule Of Evidence 608(b)

Federal Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Meanwhile, New Jersey Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Except as otherwise provided by Rule 609, a trait of character cannot be proved by specific instances of conduct.

So, Federal Rule of Evidence 608(a) and New Jersey Rule of Evidence 608(a) are pretty similar. But, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in Department of Children and Families, Div. of Youth and Family Services v. F.D., 2011 WL 3274010 (N.J.Super.A.D. 2011), makes clear, Federal Rule of Evidence 608(b) and New Jersey Rule of Evidence 608(b) are quite different.

In F.D., the Department of Children and Families (DCF), Division of Youth and Family Services (DYFS) issued a final administrative decision that: 1) affirmed an administrative law judge's (ALJ) initial decision that F.D. sexually abused his daughter, A.M.D.; and 2) placed his name on the central registry. Thereafter, F.D. appealed, claiming that the ALJ erred in deeming proposed testimony by Tina Brown inadmissible. After this ruling, defense counsel made the following proffer:

Tina Brown has personal, firsthand knowledge of this family. After the parties separated or divorced, [A.M.D.] made allegations of physical abuse against her—by her father. Tina Brown was the investigator into the allegations, and it is my understanding that Tina Brown is going to testify that she took the information ... conducted her investigation, and, during the course of her investigation, that the child said that the allegations were not true and that her mother told her to say the things.

Federal Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination when examined with respect to matters that relate only to character for truthfulness.

For years, however, New Jersey did not have a New Jersey Rule of Evidence 608(b). In State v. Guenther, 181 N.J. 129 (2004), however, the Supreme Court of New Jersey "created a narrow exception to N.J.R.E. 608...to permit a defendant to attack a victim's credibility by presenting evidence of a prior false accusation." This exception was eventually codified in New Jersey Rule of Evidence 608(b), which now provides that

The credibility of a witness in a criminal case may be attacked by evidence that the witness made aprior false accusation against any person of a crime similar to the crime with which defendant is charged if the judge preliminarily determines, by a hearing pursuant to Rule 104(a), that the witness knowingly made the prior false accusation.

Obviously, based upon this language, the first problem for F.D. was that his case was not a criminal case, meaning that Rule 608(b) was inapplicable. Moreover, the court held that

Even by analogy, the narrow exception provided by N.J.R.E. 608(b) to defendants in criminal cases in inapposite to the facts in this case. F.D. claimed Brown would testify that A.M.D. made a prior false accusation of physical abuse, which was investigated and found to be unsubstantiated by DYFS, and A.M.D. told the DYFS worker that N.D. told her to make the false accusation. The alleged prior false accusation was, in short, dissimilar to the facts at issue before the ALJ.

-CM

Submission Guide For Online Law Review Supplements, Version 5.0, Now Available On SSRN

Back in May 2009, I posted the initial Submission Guide For Online Law Review Supplements at SSRN. At the time, online law review supplements were a relatively new trend and a rarity at top law schools. Those days are over. By my count, there are now 36 online law review supplements, including (according to U.S. News), online law review supplements at:

∙7 of the top 10 schools;

∙15 of the top 20 schools;

∙18 of the top 30 schools;

∙19 of the top 40 schools; and

∙21 of the top 50 schools

In the near future, it will be 23 of the top 50 law schools as Notre Dame and Florida are set to add online supplements this year. You can download a copy of the Submission Guide For Online Law Review Supplements, Version 5.0 by clicking here. The new additions for Version 5.0 are:

∙The Docket (Buffalo);

∙The Circuit (California Berkeley);

∙DULR Online (Denver);

∙Hastings Law Journal Voir Dire;

∙HLRe (Houston);

∙Iowa Law Review Bulletin;

∙Kentucky Law Journal Online;

∙Louisiana Law Review Forum;

∙The Bulletin (Nebraska);

∙Addendum (North Carolina);

∙Just EnRICHment (Richmond);

∙Online Forum (Temple);

∙Discourse (UCLA); and

∙The Forum (Wake Forest)

-CM

Independence Day, Take 4: NJ Court Upholds Admission Of Expert Testimony Based on Report By Non-Testifying Analyst

Back in June, the Supreme Court decided Bullcoming v. New Mexico, holding in a 5-4 opinion 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 forecasted. As I noted in a previous post,

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 turned out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provided a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman. At the end of my post, I concluded that lower courts would use Justice Sotomayor's concurrence to allow expert testimony in the tougher case. The first court (I believe) to deal with the tougher case in the wake of Bullcoming was the Superior Court of New Jersey, Appellate Division in its recent opinion in State v. Roach, 2011 WL 3241467 (N.J.Super.A.D. 2011). And, unsurprisingly, the court used Justice Sotomayor's concurrence to uphold the admission of expert testimony in the tougher case.

In Roach, Reginald Roach, an African-American man, was convicted of two counts of first-degree aggravated sexual assault, second-degree sexual assault, second-degree burglary, and third-degree possession of a weapon for an unlawful purpose.

DNA collected from the victim was initially analyzed by Lydia Schiffner, a forensic scientist in the State Police laboratory. Schiffner was able to create a full DNA profile of the person who had left his sperm on the victim. She wrote a report detailing her findings and the DNA profile. Thereafter, Schiffner relocated to Wisconsin. Another State Police analyst, Jennifer Banaag, took over responsibility for the case.

Thereafter,

Banaag analyzed the DNA specimen taken from defendant and compared it with the DNA profile previously generated from the victim. Based on her expert analysis, Banaag concluded that the defendant's DNA matched the DNA taken from the victim. In particular, she found that the probabilities of such a "sperm-cell fraction" match were one in 1.3 quintillion African–Americans, and the probabilities for a "non-sperm cell fraction" match were one in 15.7 billion African–Americans. Banaag later acknowledged at trial that one of the sperm-cell fraction tests..., excluded defendant as the DNA contributor, because it was the victim who had contributed the DNA on that particular sample.

At trial, defense counsel objected

to Banaag's testimony insofar as it referred to the analytic work performed earlier by Schiffner, who did not testify. Defense counsel argued that allowing Banaag to refer to Schiffner's work without having an opportunity to cross-examine Schiffner violated defendant's rights under the Confrontation Clause. The trial judge overruled the objection, discerning no constitutional deprivation.

After he was convicted, Roach appealed, claiming, inter alia, that the trial court erred by permitting the prosecution to allow Banaag to offer opinion testimony based upon results obtained by Schiffner. The Superior Court of New Jersey, Appellate Divsion, noted the holding in Bullcoming, but it also referenced, inter alia, an important qualification contained in Justice Sotomayor's concurrence:

[M]ost importantly for the present case, Justice Sotomayor made clear that the Court's holding in Bullcoming did not necessarily extend to a situation "in which an expert witness was asked for his [or her] independent opinion about underlying testimonial reports that were not themselves admitted into evidence."...In this regard, Justice Sotomayor's concurrence alluded to Federal Rule of Evidence 703, which permits the discussion of "facts or data" that are not admitted into evidence, on certain conditions, by a testifying expert witness.

The court then took the ball from Justice Sotomayor's concurrence and ran with it, concluding that there was no Confrontation Clause conundrum becuase

Several things [we]re apparent from Banaag's testimony. First, she was qualified to offer opinions as an expert witness pursuant to N.J.R.E. 702. Under a companion provision, N.J.R.E. 703, “[t]he 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.” (Emphasis added). Rule 703 adds that if the facts or data are "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."...Banaag established this requirement of reasonable reliance upon Schiffner's work, as a matter of customary practice.

It is also clear that although Banaag did not "rerun" the tests conducted by Schiffner, she carefully reviewed them and found no basis to question their reliability.

Banaag was not a mere "conduit" of Schiffner's analysis. Rather, as a qualified DNA expert, she reviewed that analysis and determined that it was appropriate to use the DNA profile created by Schiffner and compare it to the profile generated by defendant's buccal swab. Banaag was subjected to vigorous cross examination on these points, including her use of the prior analyst's DNA profile.

The court did acknowledge that the United States Supreme Court recently granted cert in Williams v. Illinois, 939 N.E.2d 268 (Ill. 2010), a case with facts very similar to the facts in Roach (you can read my analysis of Williams by clicking here). But the court then stated that it had no problem affirming because "[u]nless the Court's forthcoming opinion in Williams v. Illinois during the coming term dramatically expands the Crawford doctrine, there is nothing in the Court's present jurisprudence that compels a reversal in this case." And I agree. As I noted in a previous post, based upon her Bullcoming concurrence, I fully expect Justice Sotomayor to side with the four dissenters from Bullcoming and uphold the admission of expert testimony in the "tougher case." But with the Confrontation Clause, you just never know.

-CM

Strength Of His Convictions: 9th Circuit Upholds Admission Of Prior Conviction Evidence Under Rule 703

Federal Rule of Evidence 703 provides 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. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

Usually, courts find that the balancing test set forth in Rule 703 is not satisfied and that otherwise inadmissible evidence underlying expert opinion testimony remains inadmissible. That was not the case, however, with the Ninth Circuit in its recent opinion in United States v. Smith, 2011 WL 2877819 (9th Cir. 2011).

In Smith, Curtis Dewayne Smith was convicted of bank robbery. Smith admitted that he robbed the bank but raised an insanity defense at trial, and the prosecution's expert testified "that Smith suffers from antisocial personality disorder (not otherwise specified), as listed in the American Psychiatric Association's Diagnostic and Statistical Manual." The district court then allowed the prosecution to introduce evidence of Smith's prior convictions.

After he was convicted, Smith appealed, claiming, inter alia, that the district court erred by allowing the prosecution to introduce evidence of his prior convictions. The Ninth Circuit disagreed, concluding that

Admission of the remainder of Smith's criminal history was permissible under Fed.R.Evid. 703, which provides for the introduction of otherwise inadmissible evidence if its "probative value in assisting the jury to evaluate the expert's opinion substantially outweighs [its] prejudicial effect." Here, the government's expert's opinion was based in part on her understanding of Smith's prior convictions, so it was helpful to the jury in evaluating her diagnosis. In addition, the district court gave the jurors a thorough limiting instruction that made clear that they were "not to take [the criminal history references] as substantive evidence of what [Smith] really has done or not done in the past but merely as the factors relied upon by this witness in reaching her assessment" of Smith's mental condition....And given that the ultimate issue at trial was Smith's mental condition, and he admitted that he actually robbed the bank, the district court properly discounted concerns about "generalizing a defendant's earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged."

Normally, I am skeptical of any court opinion deeming otherwise inadmissible evidence admissible under Federal Rule of Evidence 703, but I agree with the Ninth Circuit. The unfair prejudice associated with prior crime/conviction evidence is the possibility that the jury will use the evidence to conclude, "Once a criminal, always a criminal," or "Once a bank robber, always a bank robber." But when a defendant admits committing the actus reus of a crime and claims insanity, this fear doesn't exist. Indeed, if the court uses the irresistible impulse test, evidence of prior crimes/convictions could support a defendant's insanity defense. And it seems clear that there is some probative value in an expert explaining to the jury how the defendant's prior crimes led her to the conclusion that the defendant suffers from antisocial personality disorder.

-CM

Living With A Hernia: 9th Circuit Finds No Error In Failing To Appoint Expert Under Rule 706(a)

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

As the use of the word "may" in the first sentence of Rule 706(a) makes clear, it is usually within the court's discretion to appoint or not appoint expert witness, and Sanders v. York, 2011 WL 3152814 (9th Cir. 2011), was no exception.

In York, Amando Sanders, a California prisoner, had a hernia operation performed on him by Dr. Penner. According to Sanders, after the operation, the operating doctor's "decisions not to place Sanders in a medical observation room after his surgery and not to give him new dressings resulted in him being denied pain medication, clean clothes, and showers, and being forced to sleep in his own blood, urine, and vomit." Sanders also claimed that the doctor's "decisions caused him to get a stomach infection."

Sanders alleged that these decisions amounted to deliberate indifference and thus brought a Section 1983 action against the doctor and various other defendants. The district court granted partial summary judgment to one defendant, and a jury found in favor of the remaining defendants. Sanders thereafter appealed, claiming, inter alia, that the district court erred in refusing to appoint an expert to him pursuant to Federal Rule of Evidence 706(a).

The Ninth Circuit disagreed, initially noting that 

Courts have broad discretion to appoint expert witnesses....A district court may abuse its discretion, however, by declining to appoint experts in actions that involve scientific evidence or complex issues.

Then court then held that

With regard to Sanders's allegations against Dr. Penner, the district court assumed, for the purpose of partial summary judgment, that all of Sanders's factual allegations were true. Therefore, expert testimony regarding the facts of Sanders's alleged injuries and treatment would not have given Sanders any benefit regarding his claims against Dr. Penner. With regard to the claims against [other defendants], Sanders has not demonstrated that expert testimony would have been helpful, much less important or necessary to explain complex scientific issues or evidence. Sanders needed to prove that the defendants were deliberately indifferent to his medical needs. Expert testimony about the effects of the defendants' alleged deliberate indifference was not necessary. Thus, it was within the district court's discretion to deny appointment of an expert witness.

-CM

Losing Your Privilege: Supreme Court Of Arkansas Finds Marital Privilege Doesn't Apply In Rape Appeal

Arkansas Rule of Evidence 504, Arkansas' husband-wife privilege, states:

(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.  

(b)  General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.  

(c)  Who May Claim the Privilege. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The authority of the spouse to do so is presumed.  

(d)  Exceptions. There is no privilege under this rule in a proceeding in which one [1] spouse is charged with a crime against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them. 

In Clem v. Hobbs, 2011 WL 3135996 (Ark. 2011), the trial court allowed the defendant's wife to testify regarding confidential communications, but the problem for the defendant was that he was charged with crimes against their children.

In Hobbs, "Joe Edwin Clem was found guilty by a jury in the Craighead County Circuit Court of one count of rape and three counts of accomplice to rape," with the victims being "his son and daughter." After he was convicted, Clem filed a habeas petition, claiming that the trial court erred by allowing his wife to testify at trial concerning confidential communications that the two shared. The Supreme Court of Arkansas disagreed, concluding that "Arkansas Rule of Evidence 504(d)...provides that there is no husband-wife privilege when one spouse is charged with a crime against the other spouse's child or any person residing in the household of either."

So, why is there such an exception to the privilege? Well, the purpose of the privilege is to protect the institution of marriage. The theory is that if spouses know that what they share with their spouses could be exposed in open court, they would hold back and not communicate openly and honestly. Therefore, the privilege deems such communications privileged. At the same time, the State does not have an interest in preserving marriages in which one spouse is abusing the other spouse and/or their children. This is the reason for the exception in Arkansas Rule of Evidence 504(d) and similar exceptions to other states' marital privileges.

-CM

Not Warranted?: 8th Circuit Finds No Problem With Admission Of Arrest Warrant In Civil Action

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

So, under Rule 803(8)B), an arrest warrant could be excluded if offered in a criminal case but not if offered in a civil case, as was the case in Moore v. City of Desloge, Mo., 2011 WL 3189357 (8th Cir. 2011).

In Moore, Jason Moore was arrested by Officer Aaron Malady, who had an arrest warrant for Moore. Moore claimed that he was wrongfully arrested and brought an action against Malady and various other defendants under 42 U.S.C. § 1983 and § 1985, alleging violations of various rights arising under the Fourth, Fifth, and Fourteenth Amendments and state civil conspiracy law. At trial,

Over Moore's objection, the district court received a document purporting to be a warrant for Moore's arrest....Moore made the following objections to the warrant's admissibility, (1) the warrant was not authenticated, (2) there was no foundation for a finding the warrant was issued upon probable cause, (3) there was no foundation the warrant was issued and outstanding on October 4, 2004, (4) the warrant was hearsay, and (5) the warrant was irrelevant because Officer Malady "never had, saw or knew the terms of the alleged arrest warrant prior to the October 9, 2004 seizure of Moore and the...police dispatcher did not offer any evidence of 'probable cause' in this proceeding."

After the court found for the defendants, Moore appealed, renewing his claim that the warrant was improperly admitted. The Eighth Circuit disagreed, concluding that

The district court did not err in admitting the warrant. The warrant is self-authenticating..., both as a public document under seal and as a public document signed by an official (judge, clerk, and sheriff). The warrant states the issuing court found probable cause for arrest and is signed by a judge. As a public record, the warrant is clearly excepted from the hearsay rule. See Fed.R.Evid. 803(8). The warrant is relevant to show the police reasonably believed there was a warrant for Moore's arrest.

My thoughts? First, the Eighth Circuit was correct to conclude that the warrant was admissible under Federal Rule of Evidence 803(8). If Moore were a criminal case, the warrant should have been excluded under Federal Rule of Evidence 803(8)(b), but Moore was a criminal case. Second, however, even if Moore were a criminal case, the warrant could have been admitted. Why? It wasn't being offered to prove the truth of the matter asserted. As the EIghth Circuit noted, "[t]he warrant [wa]s relevant to show the police reasonably believed there was a warrant for Moore's arrest." It was not being admitted to prove the truth of the statements contained in the warrant. Therefore, it was not even hearsay and did not need to meet an exception to the rule against hearsay to be admitted.

-CM