EvidenceProf Blog

Unadulterated?: Court Of Appeals Of Mississippi Case Touches On The Crime Of Adultery & Spousal Privilege

Mississippi Annotated Code Section 97-29-1 (still) provides that

If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.

In other words, adultery is still apparently a crime in Mississippi. So, how did Section 97-29-1 and Mississippi Rule of Evidence 504, Mississippi's husband-wife privilege (kind of) come into play in the recent opinion of the Court of Appeals of Mississippi in McDonald v. McDonald, 2011 WL 3570011 (Miss.App. 2011)?

In McDonald, 

Edgar L. McDonald Jr. (Ed) unsuccessfully attempted to divorce his wife, Cynthia Jean Guess McDonald (Cindy). Instead, the Clay County Chancery Court granted Cindy's request for separate maintenance. Less than two weeks later, Ed attempted to terminate his separate-maintenance obligation, but the chancery court denied Ed's motion. Ed then attempted to terminate his separate-maintenance obligation again—this time via his motion to alter or amend the order denying his motion to terminate separate maintenance. Cindy responded by requesting that Ed be held in contempt for failing to pay her separate maintenance. The chancellor denied Ed's motion to alter or amend his previous order and granted Cindy's request that Ed be held in contempt. Accordingly, the chancellor awarded Cindy a judgment of $6,000. The chancellor also awarded Cindy $1,000 in attorney's fees.

According to Ed, he sought to terminate his separate-maintenance obligation because he wanted to return to the marital home with the "primary purpose...[of] cohabit[ing] with Cindy as required by law." In denying Ed's motion to terminate his separate-maintenance obligation, the chancellor found that

The question of whether ... Ed's effort was one of good faith and honest is of a factual nature and must be decided by this Court on the basis of the facts as developed in the courtroom. At no time has there been any testimony that in any way could be construed that Cindy would not welcome Ed back or resume the marital relationship and bed. Her only request in the testimony is that Ed make a clean breast of his past relationships, if any. Ed has never denied any relationship under oath, but [he] has asserted his Fifth Amendment right against self-incrimination. Ed did testify that he wanted to move on and did not want to discuss the past. The Court can certainly understand Ed's desire not to address the past for obvious reasons. However, to resume a relationship after thirty (30) plus years of marriage, as this one is, there has to be a foundation of complete trust. A marriage which has never lost the trust factor may be strong because there has never been any reason to doubt. A marriage which has lost the trust factor must be repaired and shored up with an extraordinary amount of reassurance, openness, and certainly frankness.

Ed's reluctance to engage in such discussions cast doubt in the Court's mind as to whether he will ever make the effort necessary to resume a proper marital relationship. As in Day, ... Ed never once expressed regret or repentance, nor were there promises made to be a proper husband if allowed to return. This combined with Ed's reluctance to do what it took to satisfy Cindy leads the Court to the only conclusion possible; that is, Ed's motivation is solely to avoid making the [c]ourt[-]ordered payments and not to truly resume a normal and healthy marital relationship. The Court also would state that the filing of the motion so soon after the entrance of the order of separate maintenance ... and his return to the marital home on the eve of the hearing may have been premature. A few days is hardly enough time to restore a thirty (30) year marriage. The Court only had evidence that Ed dropped off his bags and that was basically it. Without more, the Court cannot grant the motion by law.

Ed appealed this denial to the Court of Appeals of Mississippi, which noted that

According to Ed, he refused to tell Cindy the names of any women with whom he had had affairs because "[t]here is...no requirement that either party waive his or her Fifth Amendment rights in order to restart the relationship." Ed based his refusal to disclose the names of his "alleged paramours" on the concept that "adultery is still a punishable crime in Mississippi." 

The Court of Appeals found that it did not need to resolve these issues to uphold the chancellor's ruling, instead relegating its analysis to the following footnote:

[FN2] We decline to address the question of whether Ed could have successfully been prosecuted for adultery pursuant to Mississippi Annotated Code Section 97-29-1....

Furthermore, we decline to address the question of whether Ed could have privately disclosed any extra-marital affairs to Cindy under the protection of the "Husband–Wife Privilege" set forth in Mississippi Rule of Evidence 504.

Interesting. I wonder how long it has been since Mississippi last prosecuted a person for adultery?Presumably, that would help us to answer the question of whether there was a real and substantial danger that Ed could be prosecuted for adultery, triggering the Fifth Amendment's protections if the court forced him to come clean to his wife. 

And what about Mississippi Rule of Evidence 504? If Ed came clean to his wife and was then charged with adultery, could he prevent his wife from testifying pursuant to the husband-wife privilege? Mississippi Rule of Evidence 504(b) does provide that "[i]n any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse."

That said, Mississippi Rule of Evidence 504(d) provides that

There is no privilege under this rule in civil actions between the spouses or in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child or (2) the person or property of (i) the other spouse, (ii) a person residing in the household of either spouse, or (iii) a third person committed in the course of committing a crime against any of the persons described in (d)(1), or (2) of this rule.

Now, usually, the exception contained in Rule 504(d) applies in cases of spousal or child abuse. But would adultery be considered a crime against the person of the other spouse? Or is it a crime against the state or the institution of marriage? I would guess the former, which would mean that if Ed reasonably feared being prosecuted for adultery, the court could not compel him to disclose his affairs to his wife because the husband-wife privilege would not protect him. Of course, as the Court of Appeals likely correctly held, none of these issues really needed to be resolved to find that the chancellor did not abuse his discretion.

-CM

Free Your Mind: 9th Circuit Finds Harmless Error In Connection With Expert Hypos In Aryan Brotherhood Appeal

It is well established that experts may be asked hypothetical questions on cross-examination, but such questions "must not require the expert to assume facts that are not in evidence." United States v. Stinson, 2011 WL 3374231 (9th Cir. 2011), provides a nice illustration of a prosecutor engaging in misconduct by asking an expert to assume facts not in evidence. It also illustrates the laissez faire approach that the Ninth Circuit has taken with regard to such misconduct on appeal.

In Stinson, John Stinson and Robert Griffin appealed their convictions for RICO conspiracy for operating the Aryan Brotherhood (AB) prison gang, and Stinson appealed his conviction for violent crime in aid of racketeering (VICAR). As noted by the Ninth Circuit,

The AB started in 1964 as a group of white prison inmates who asserted the need to protect themselves and later evolved into an organization designed to traffic narcotics across numerous California and federal prisons. In the early 1980s, the California AB was reorganized such that it was governed by a three-member commission. The commission had final say on AB orders to kill, orders to enforce AB rules, and the AB's business efforts. Griffin was an original member of the commission. By 1990, Stinson had joined Griffin on the commission.

With regard to the charges against Stinson and Griffin,

The RICO count set forth numerous overt acts in furtherance of the conspiracy, including operating the California Commission and 11 murders, attempted murders, or conspiracies to murder. The VICAR counts alleged the murders of Arthur Ruffo and Aaron Marsh for the purpose of maintaining or increasing Griffin and Stinson's positions in the AB.

A key question at trial was whether Griffin had withdrawn from the conspiracy prior to the running of the statute of limitations on August 28, 1997, and, at trial,

Griffin called as an expert witness Robert Ayers, a warden at the Pelican Bay state prison while Griffin was housed there. He testified that, in 1997 or 1998, he read Griffin's confidential file and had an investigation conducted into whether Griffin was still active in the AB. Ayers testified that his opinion from that investigation was that Griffin was no longer active in the AB.

Thereafter,

On cross-examination, the government posed a series of hypotheticals about whether Ayers's opinion would be different if there were more recent evidence in Griffin's confidential file showing AB activity. Some of these hypotheticals concerned matters for which evidence was introduced at trial. Others concerned redacted inmate debriefings not in evidence, though the government later unsuccessfully attempted to introduce them. Others concerned matters that were never introduced in evidence nor even disclosed to Griffin and Stinson.

Subsequently,

The district court told the jury that "if the underlying facts of a hypothetical question are not proved in court then the opinion has no meaning...you are not to assume any of this happened unless it's proved later." In addition to this admonition to the jury during cross-examination, the district court at the close of evidence instructed the jury: "Questions were asked of the witness Robert Ayers on cross-examination about documents he had not seen. In light of the fact that the questions are not evidence, you are to disregard such questions and answers given concerning any documents obviously that he had not read or seen." The court also more generally instructed that "[q]uestions and objections of the lawyers are not evidence."

As noted, Stinson and Griffin were convicted, with the jury returning a special verdict finding that Griffin had not withdrawn from the conspiracy prior to the running of the statute of limitations on August 28, 1997. In addressing their appeal, the Ninth Circuit found that the prosecution engaged in misconduct by posing some of the above hypotheticals, concluding that

All the hypotheticals based on debriefs not admitted in evidence told the jury the substance of inadmissible hearsay. The debriefs were out of court statements offered for their truth—that Griffin had, for example, recently ordered a hit on the so-called Black Dragon Rapist, and therefore had not withdrawn from the AB. The debriefs were not suggested merely to show that documents existed that Ayers had not seen, because the government had already established that Ayers had not seen documents added to Griffin's confidential file after 1998. Nor could the debriefs be disclosed under Fed.R.Evid. 703 or 705, as they were explicitly not the basis of Ayers's opinion. We therefore conclude that it was prosecutorial misconduct to pose questions or hypotheticals to Ayers concerning debriefs that were not admitted in evidence.

That said, the Ninth Circuit found that this error/misconduct was harmless for two reasons: First, the other evidence against the defendants, and specifically Griffin, was strong. I have no problem with this conclusion. Second, 

the district court offered a curative instruction that "you are to disregard such questions and answers given concerning any documents obviously that [Ayers] had not read or seen." The court also instructed that "[q]uestions and objections of the lawyers are not evidence." It further warned the jury during the cross-examination that "you are not to assume any of this happened unless it's proved later." As we have observed, "juries are assumed to follow the court's instructions."

I'm sorry, but I'm not buying this conclusion. The jury had to decide whether Griffin had withdrawn from the AB by August 28, 1997. To defeat this argument, the prosecution engaged in misconduct by telling the jury the substance of inadmissible hearsay, namely that Griffin had, inter alia, ordered a hit on an individual after this date. I know that the presumption is that juries are assumed to follow the court's instructions, but it seems to me that there is no way that a reasonable juror could erase this information from his head. If the Ninth Circuit simply held that there was enough other evidence to convict Griffin, that would have been fine. But I don't see how it could presume that the jurors wiped their minds of such damning evidence.

-CM

Same Sex: 8th Circuit Uses Same Logic To Uphold Rule 414 As It Used To Uphold Rule 413 Against Constitutional Attack

Federal Rule of Evidence 414(a), enacted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, provides in relevant part that

In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

In its opinion in United States v. Mound, 149 F.3d 799 (8th Cir. 1998), the Eight Circuit found that Federal Rule of Evidence 413(a), which allows for the admission of evidence of prior sexual assaults by defendants charged with sexual assault, to be constitutional. And, in its recent opinion in United States v. Coutentos, 2011 WL 3477190 (8th Cir. 2011), the Eighth Circuit reached the same conclusion with regard to Rule 414(a).

In Coutentos, a jury found Jimmie Coutentos guilty of one count of sexual exploitation or attempted sexual exploitation of a minor to produce child pornography and one count of possession or attempted possession of child pornography. After he was convicted, Coutentos appealed, claiming, inter alia, that the district court erred by allowing the alleged victim's older sister to testify regarding acts of child molestation that Coutentos, her grandfather, allegedly committed agains her. According to Coutentos, Federal Rule of Evidence 414(a) "is unconstitutional because it violates Fifth Amendment due process rights."

According to the Eight Circuit, "[t]o determine whether [Rule 414] fails 'the due process test of fundamental fairness,' we consider whether 'the introduction of this type of evidence is so extremely unfair that its admission violates fundamental conceptions of justice.'" The Eighth Circuit then noted that while it had not previously resolved this issue, (1) "Other circuits have rejected similar facial attacks on the constitutionality of Rule 414 in light of the fact that Rule 414 is subject to the constraints of Rule 403;" and (2) "In Mound, we upheld the constitutionality of Rule 413, stating that we believed 'that it was within Congress's power to create exceptions to the longstanding practice of excluding prior-bad-acts evidence.'" Accordingly, the court used the same reasoning that it used in Mound to "conclude that Rule 414 does not violate the Due Process Clause."

-CM 

In The Public Eye: Court Of Appeals Of Texas Finds Public Records Weren't Self-Authenticating In Negligence Appeal

Texas Rules of Evidence 902(4) & (10) provide that

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:....

(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.....

(10) Business Records Accompanied by Affidavit.

(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.

(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice....

In its recent opinion in Husain v. Petrucciani,  2011 WL 3449497 (Tex.App.-Houston [14 Dist.],2011), the Court of Appeals of Texas, Houston correctly concluded that non-certified copies of public records no accompanied by an affidavit were not self-authenticating under these rules. But couldn't they still have been authenticated under Texas Rule of Evidence 901(b)(7)?

In Petrucciani, 

Russell A. Petrucciani used his 2008 Ford F–150 pick-up truck as a company vehicle for Spectrum [Construction Services, Inc]. On the morning of February 17, 2009, while on his way to work, Petrucciani stopped at a dry cleaning establishment located on FM 1960 in the Spring, Texas area. He parked directly in front of the business, left the keys in the ignition and the vehicle running, and went inside the dry cleaners. While inside waiting for service, Petrucciani looked out the front window and saw a thief sitting in the driver's seat of his pick-up truck. Petrucciani immediately returned to his truck, opened the door, and tried to remove the thief. After a struggle, the thief shifted the truck into reverse and accelerated through the parking lot. Petrucciani hung onto the truck between the open driver's side door and the frame of truck.

The thief then struck a parked car in the parking lot. Petrucciani fell to the ground, severely injured. The thief sped from the parking lot in Petrucciani's truck onto FM 1960. Less than a minute later, the thief struck the Husains' vehicle with Petrucciani's truck.

The Husains thereafter brought an action against Petrucciani and Spectrum, alleging "that Petrucciani was negligent both by leaving his vehicle in a manner in which it could be entered and operated by another person and by engaging in a physical altercation with the thief." Petrucciani and Spectrum responded with a motion for summary judgment dismissing the complaint. In turn, the Husains responded with, inter alia,

voluminous paperwork obtained by the Husains from the Harris County Sheriff's Office produced pursuant to a public information request for the following: [C]opies of selected crime statistics 2008, 2009 for that area generally defined by Tomball Parkway/Hwy 290 to the west, FM 2920 to the north, Kuykendahl Road to the east, and Sam Houston Tollway (Beltway 8) to the south, including any patrol beat or patrol district contained within or partially within such area: 1) All calls for service, or records of any activity by any member of your department, or response or appearance of any member of your department for any complaint relating to or of auto theft, attempted auto theft, unauthorized use of motor vehicle, burglary of motor vehicle, vandalism of a motor vehicle, and/or criminal mischief relating to a motor vehicle w/in any patrol district, patrol beat contained wholly or partially w/in [the area as defined above]; 2) All 911 records, dispatch slip(s), dispatch log reports, and/or any publicly releasable section or portions of any case reports files, calls for service or reports or documents of any sort wherein RUSSELL A. PETRUCCIANI...is identified as either complainant, witness, or suspect, or in any other capacity at any time w/in the 10 years prior to the date of this request, at any location w/in your jurisdiction[.] 

The trial court deemed this paperwork inadmissible and granted the defendants' motion for summary judgment. The Husains then appealed, claiming, inter alia, that the trial court erred in deeming this evidence inadmissible. The Court of Appeals of Texas, Houston, disagreed, concluding that

The Husains acknowledge that the public information request information does not contain certified copies of this information. Under the Texas Rules of Evidence, "public records" may be self-authenticating, if presented in the form of a certified copy or if accompanied by an affidavit made by a custodian of the records. Tex.R. Evid. 902(4), (10). But these documents were not properly authenticated under this rule because the documents are neither certified copies nor were they accompanied by an affidavit made by the custodian of the records. As such, the trial court did not abuse its discretion in excluding the public information request documents from the summary-judgment record.

I agree with this conclusion, but this merely means that the paperwork was not self-authenticating under Texas Rule of Evidence 902. The Husains, however, still could have properly authenticated the paperwork under Texas Rule of Evidence 901 generally and Texas Rule of Evidence 901(b)(7) specifically. Texas Rule of Evidence 901(b)(7) provides that public records or reports can be authenticated through

Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept.

So, what happened? Did the Husains not argue that the paperwork was admissible under Texas Rule of Evidence 901(b)(7)? Did they fail to present the extrinsic evidence required to authenticate non-self-authenticating writings? The opinion of the Court of Appeals of Texas doesn't answer these questions.

-CM

Is There A Doctor In Your Past?: Supreme Court Of Mississippi Permits Jury Impeachment Regarding Lies During Voir Dire

Similar to its federal counterpart, Mississippi Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

But while jurors may not testify as part of an inquiry into the validity of a verdict, almost all courts have found that jurors can testify to prove that a juror lied during voir dire, with the result being that a verdict is overturned. Most courts find that such testimony simply falls outside the scope of Rule 606(b). But in its recent opinion Merchant v. Forest Family Practice Cliic, P.A., 2011 WL 3505309 (Miss. 2011), the Supreme Court of Mississippi found that when a juror conceals information during voir dire, such information constitutes an improper outside influence, permitting juror testimony under the Rule.

In Merchant,

[Charles] Harris was treated for gout of the left foot by Dr. [John] Lee at the [Forest Family Practice] Clinic on multiple occasions between June 13, 2006, and June 30, 2006. On July 2, 2006, Harris was taken to the emergency room of Mississippi Baptist Medical Center and was diagnosed as septic. As a result of the sepsis, Harris's left leg was amputated. On August 13, 2006, Harris died. On August 6, 2008, the Estate [of Charles Harris] filed a complaint against the Clinic, Dr. Lee, and John Does 1–10, alleging, inter alia, medical negligence, vicarious liability, and wrongful death.

The Estate of Charles Harris also brought a similar lawsuit against another doctor, Dr. Howard Clark, who treated Harris at another clinic.  Before trial in the action against Dr. Lee,

During voir dire, the circuit judge asked the venire, "[w]ith that type of case, a case where a doctor has been sued for malpractice, will that affect your judgment in this case?" The first inquiry posed by counsel for the Estate during voir dire was "[w]ould you raise your hand if any of you have had an occasion to be treated at the [Clinic] by Dr. Lee or any other doctors [?]" Counsel for the Estate later asked the venire, "would you raise your hand if you feel like...you should not sit on this jury because of the knowledge of... Dr. Lee or his [C]linic..., that you feel like you shouldn't sit on this jury because you can't put aside that bias[?]" Finally, counsel for Dr. Lee asked the venire, "you will make your decision based on the actual evidence and the [j]udge's instruction. Are you all aware of that?" During voir dire, the venire members (including [Clyde] Lowden) also responded affirmatively that they "still have an open mind and can receive the evidence and the law of this case and make a fair decision[,]" and that they will "listen to the evidence, listen to the [c]ourt, and...follow the [c]ourt's instructions, even if for some reason you disagree...." 

At the end of trial, the jury returned a verdict in favor of Dr. Lee and the Clinic. Thereafter, the Estate filed a "Motion to Investigate Juror Misconduct, to Set Aside or Void Jury Verdict, to Void or Set Aside Final Judgment, for New Trial, and to Change Venue." In support of the juror misconduct portion of the motion, the Estate attached the affidavit of Juror Maria Lopez, which stated that juror Clyde Lowden told other jurors

[t]hat he had been a patient of both Dr. Lee and Dr. Clark. That both were good doctors and that we the [j]ury could not "let those attorneys keep taking money from our doctors." [Another juror] and I reminded [Lowden] that the [c]ourt had instructed us to disregard the comment about a lawsuit against Dr. Clark. [Lowden] nonetheless continued to refer to that lawsuit in an attempt to persuade his fellow jurors to vote in favor of Dr. Lee.

The court denied the motion, and the Estate's appeal eventually reached the Supreme Court of Mississippi. The court concluded that

Lopez's affidavit and subsequent testimony offered unrebutted evidence that Lowden "failed to truthfully answer questions during voir dire[,]" which implicated an "'outside influence' contemplated by Rule 606(b)."  

The court then found that this improper outside influence was sufficient to require a new trial because "Lowden's failure to respond to the aforementioned questions amounted to withholding 'substantial information' which 'would have provided a valid basis for challenge for cause....'"

-CM

Mommie Dearest: 10th Circuit Finds District Court Erred In Excluding Testimony Of Mother Who Ignored Sequestration Order

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

So, let's say that a trial court enters an order of sequestration pursuant to Rule 615, but a witness remains in the courtroom during other testimony. But let's say that the witness does this without the knowledge of the party calling her. Should the court allow the witness testify? According to the recent opinion of the Tenth Circuit in United States v. Washington, 2011 WL 3455826 (10th Cir. 2011), the answer is "yes."

In Washington, Deandre Laron Washington was convicted of one count of witness tampering. That "conviction stemmed from Mr. Washington's alleged part in a murder-for-hire scheme wherein he was hired by Ronald Irving to kill a local law enforcement officer prior to that officer testifying in a drug case against Mr. Irving."

At the outset of the trial, the district court invoked the Rule of Sequestration, ordering that "anyone who is in the courtroom, except the parties, who [is] going to be a witness in the case or potentially be a witness must excuse themselves now." themselves now."

Thereafter, Sean Warrior testified as a defense witness. Subsequently,

On cross-examination, the government tried to discredit Sean Warrior's testimony by suggesting that it may have been the product of witness intimidation. In particular, the government asked whether his mother, Ms. Warrior, had been threatened at gunpoint during a home invasion roughly a month prior to trial, implying that he may have been coerced into testifying favorably for the defense.

Terry Warrior, Sean's mother, was in the courtroom for this testimony. Defense counsel was apparently unaware that Terry Warrior was in the courtroom during her son's testimony, and he later tried to call her to "testify to the fact that no threat was made during the robbery, which would serve to undermine the government's suggestion that Sean Warrior's testimony was coerced." The district court, however, precluded her from testifying because she violated the order of sequestration entered pursuant to Federal Rule of Evidence 615.

After he was convicted, Washington appealed, claiming, inter alia, that this ruling was erroneous. In addressing this issue, the Tenth Circuit initially noted that

When a violation of the Rule of Sequestration occurs,..."this alone does not render the witness' [s] testimony inadmissible."....Rather, when a sequestration order is disregarded, "it is within the district court's discretion to admit or exclude the witness's testimony."...However, "[e]xclusion of a witness'[s] testimony is 'an extreme remedy' that 'impinges upon the right to present a defense,' and thus should be employed sparingly."

Some of our sister circuits have indicated that exclusion is appropriate primarily where the witness has remained in court with the "consent, connivance, procurement or knowledge" of the party seeking his testimony,...i.e., where such a party has knowingly or intentionally effectuated a violation of the order.

The Tenth Circuit then noted that "[a]lthough we may not have formally adopted this rule, our precedent indicates that a party's culpability in the violation of a sequestration order is a significant factor in determining whether admission or exclusion of the witness is the proper remedy for the violation." Moreover, it noted that "our circuit has made clear that '[p]robable prejudice should be shown for such exclusion to occur."

Applying these standards to the case before it, the Tenth Circuit thus found that the district court erred in precluding Terry Warrior from testifying because

Although Ms. Warrior was unquestionably present for the testimony of her son, and, as the district court noted, this was the only testimony that would have had any relevance to her own statements, this does not in-and-of-itself warrant exclusion....In this case, the record is devoid of any of the factors noted above that justify exclusion of a witness. There are no indicia of "consent, connivance, procurement or knowledge" of Ms. Warrior's violation by defense counsel,...and the district court never paused to conduct even a semblance of a "probable prejudice" inquiry....Consequently, we agree with Mr. Washington that the district court abused its discretion by "mechanistically exclud[ing] the testimony upon finding a violation of the Rule." 

That said, the court found that this error was harmless and thus affirmed Washington's conviction.

-CM

Self Preservation Instinct: 3rd Circuit Finds Defendant's Failure To Testify Precludes Review Of Cross-X Ruling

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant under Federal Rule of Evidence 609 through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. Meanwhile, Federal Rule of Evidence 611(b) states generally that

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

So, let's say that a defendant files a motion in limine before trial, seeking generally to restrict the scope of the prosecution's cross-examination of him in the event that he testifies at trial. If the court denies that motion, and the defendant thereafter declines to testify, is his appeal foreclosed by the logic of Luce? According to the recent opinion of the Third Circuit in United States v. Ferrer, 2011 WL 3468319 (3rd Cir. 2011), the answer is "yes."

In Ferrer, Ramon Ferrer was convicted, along with two of his three co-defendants, of (i) attempt and conspiracy to distribute or to possess with intent to distribute more than 500 grams of methamphetamine and (ii) interstate travel in facilitation of attempted drug trafficking.

The gist of the criminal conduct was a plot to transport 23 pounds of methamphetamine from Georgia to Pennsylvania for sale to one Antonio Pagan, who turned out to be a government informant. Although the substance delivered to the informant initially field-tested positive for methamphetamine, later lab tests revealed that it in fact contained no narcotics.

After he was convicted, Ferrer appealed, claiming, inter alia, 

that the District Court should not have denied his motion in limine to restrict the scope of his cross-examination. Ferrer says that he would have liked to testify at trial, but that he was dissuaded from doing so by the possibility that the prosecution would use the opportunity to cross-examine him about issues outside the subject matter about which he would have testified.

But according to the Third Circuit,

Unfortunately for Ferrer, his decision not to testify precludes us from reviewing the District Court's ruling. In Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that denial of a motion in limine under Fed.R.Evid. 609(a) was not reviewable where the defendant did not testify. The Court noted that a court cannot assess the balance of probative value against prejudicial effect without knowing the precise content of the testimony in question. In addition, any harm resulting from denial of the motion is speculative: an in limine ruling may be altered; the government might decide not to use the evidence that was the subject of the motion after all; and the defendant's decision not to testify might actually have been motivated by something other than the motion's denial. Moreover, there is no way to assess whether an error is harmless if its effect on the defendant's case is not known, and a rule allowing review where the defendant did not testify would allow him to "plant" error in a trial by making dubious motions and then declining to testify. 

The Third Circuit did acknowledge that Luce merely dealt with the issue of preservation in the Rule 609 context, but it held that "[e]ach of these rationales is equally applicable to a motion under Rule 611(b), and our sister circuits have extended Luce beyond the Rule 609(a) context." Accordingly, the court concluded there was "no reason why Luce should not control" and refused to "entertain [Ferrer's] appeal of the District Court's denial of his motion in limine." 

-CM