EvidenceProf Blog

Under One Condition: Eastern District Of Pennsylvania Finds Evidence Of Doctor's Alcoholism Conditionally Relevant

Back in January, Joseph J. Kubacki, the former chair of the Temple University School of Medicine Ophthalmology Department, was charged with fraud and making false statements in health-care matters in a 144-count indictment from the United States Department of Justice.

Kubacki, a pediatric eye specialist, is accused of falsely claiming between 2002 and 2007 to have provided more than $1.5 million in services to patients at a clinic run by the ophthalmology department. The indictment says Kubacki, who had an office at Temple University Hospital, made notations in the charts of patients, seen by other doctors, indicating that he also had seen and evaluated those patients – when he hadn’t. In some cases, he wasn’t even in town when the patients were seen.

Recently, the government sought to introduce evidence relating to Dr. Kubacki's alcohol abuse when at the Ophthalmology Department. And as the United States District Court for the Eastern District of Pennsylvania noted in its recent opinion in United States v. Kubacki, 2011 WL 3627317 (E.D. Pa. 2011), the admissibility of this evidence required a finding of conditional relevance.

In Kubacki, the government claimed that Dr. Kubacki's alcohol abuse made it more probable that Defendant committed health care fraud. As the Eastern District of Pennsylvania correctly noted, however, Dr. Kubacki's "alcohol abuse [wa]s only relevant to [his] commission of the crimes in question if the Government can establish that this alcohol abuse caused [him] to see a lower volume of patients. In other words, the alcohol evidence was only admissible if the government sufficiently satisfied Federal Rule of Evidence 104(b), which provides that

When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

In other words, here is a diagram of the relevancy of the alcohol evidence in Kubacki:

-evidence of Dr. Kubacki's alcohol abuse (fact)

-seeing a lower volume of patients (conditional fact)

-motive to commit health care fraud (relevance)

Thus, the evidence of Dr. Kubacki's alcohol abuse was only relevant to prove his motive to commit health care fraud if a reasonable juror could find the conditional fact -- seeing a lower volume of patients -- by a preponderance of the evidence.

And, according to the court,

The Government intends to prove the impact of Defendant's alcohol use via residents and other physicians who worked with Defendant. These witnesses will testify to the fact that Defendant drank frequently while at TUH and, when he drank, he did not attend to patients because he was in the conference room or his office. Also, the resident physicians will testify that, at times, when they saw Defendant at TUH they perceived him as being impaired and because of this did not seek out his assistance with patients. Rather, these resident physicians turned to other physicians for help thus increasing the volume of patients other physicians saw. Based upon this testimony, the jury could reasonably find that Defendant was seeing a low volume of patients due to his alcohol use. Because the Government has proffered evidence that, if accepted by the jury, would establish that Defendant's alcohol abuse caused a decline in the amount of patients he saw, this evidence will be deemed relevant.

-CM

3 For 1: Supreme Court Of South Carolina Opinion Addresses 3 Important Evidentiary Issues, Including 2 Errors

South Carolina Rule of Evidence 106, the "rule of completeness," provides that

When a writing, or recorded statement, or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Meanwhile, South Carolina Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Finally, South Carolina Code section 16–3–659.1(1), South Carolina's rape shield rule, provides that

Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct is not admissible in prosecutions under Sections 16-3-615 and 16-3-652 to 16-3-656; however, evidence of the victim's sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease about which evidence has been introduced previously at trial is admissible if the judge finds that such evidence is relevant to a material fact and issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Evidence of specific instances of sexual activity which would constitute adultery and would be admissible under rules of evidence to impeach the credibility of the witness may not be excluded.

If you want a pretty discussion of some of the relevant features of each of these rules, you need look no further than the recent opinion of the Supreme Court of South Carolina in State v. Tennant, 2011 WL 3568527 (S.C. 2011).

In Tennant, Roy Tennant was convicted of criminal sexual conduct in the first degree, kidnapping, and assault and battery of a high and aggravated nature based upon acts allegedly committed against his ex-wife. At trial, the victim testified that she received three letters from Tennant after he sexually assaulted her: (1) the first letter discussed Tennant's belief in God and his desire to be the victim's friend; (2) the second letter was a response to the victim's letter expressing incredulity that he mentioned God after what he had done; and (3) the third letter was an alleged suicide note (which obviously didn't lead to an actual suicide). At trial, the prosecution introduced the second letter, which stated in relevant part

Hey you just can't imagine how happy I was to get your letter. I understand exactly what you [meant] and in response to your letter, I want you to know that I am very deeply sorry for everything that happened back in November and I pray desperately each night that the Lord will help you forgive me and put this behind us an[d] ease your pain. All I can do right now is pray. And its [sic] very important to me that you accept my apology.... [Y]ou will find that the spirit of the Lord will convict you to forgive me for what happened. There are a lot of things that I want to openly express my fe[e]lings about you and the heart of all of this confu[sion]. But to write you a letter explaining fe [e]lings and emotions would may well do more harm than good. Thats [sic] why I haven't done it [al]ready.... [Victim] I need you to forgive me for more than one reason but two. One is because I am real[l]y and tru[ly] sorry for what happened and unless I fe[e]l that you have forgiven me it will be hard for me to be at peace with myself. And the second reason is because I want to do what God expects me to do.... 

The trial court, however, precluded Tennant from introducing his alleged suicide note into evidence, and the Court of Appeals of South Carolina later affirmed, finding that it was inadmissible under the rule of completeness because it was not written contemporaneously with, or in response to, the first letter. The trial court also precluded Tennant from presenting evidence of prior consensual sexual acts between the victim and him, and the Court of Appeals of South Carolina later affirmed this ruling.

Tennant's appeal of his convictions eventually reached the Supreme Court of South Carolina, which affirmed despite two errors made by the Court of Appeals. First, with regard to the letter, the court noted that

Rule 106 does not require that the writings at issue be written contemporaneously. Rather, the temporal element of Rule 106 concerns the order of proof.... Moreover, Rule 106 does not require that the writings at issue be "responsive to one another." The plain language of the rule permits introduction of "any other part or any other writing...which ought in fairness to be considered contemporaneously." (Emphasis added). The standard here is "fairness," not responsiveness....In sum, the court of appeals erred to the extent it upheld the trial court's exclusion of the purported suicide note on the ground that the note was not written contemporaneously with, or in response to, the apologetic letter introduced by the State.

That said, the South Carolina Supremes found that the suicide letter was properly precluded because "Tennant's note disclaiming responsibility for the alleged crime, while relevant, was not so inextricably connected to the letter introduced by the State that its omission was patently unfair."

The court also found that the letter did not qualify for admission under South Carolina Rule of Evidence 803(3), the state of mind exception to the rule against hearsay. This was because 

In the purported suicide note, Tennant recounted that the victim consented to their sexual encounter.... The note was [thus] properly excluded according to the plain language of Rule 803(3) because it was "a statement of memory or belief [offered] to prove the fact remembered or believed."

Finally, with regard to the evidence excluded under the rape shield rule, the Supreme Court of South Carolina concluded that the Court of Appeales misinterpreted the exception(s) to that rule. As noted, under South Carolina Code section 16–3–659.1(1), there is an exception to the rape shield rule for

evidence of the victim's sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease....

Somehow, the Court of Appeals interpreted this exception to mean that evidence of prior sexual acts between the alleged victim and the defendant are only admissible to "show source or origin of semen, pregnancy, or disease." Of course, this makes no sense. The whole point of the "semen, pregnancy, or disease" exception to the rape shield rule is to allow the defendant to prove that the semen found on the victim, the victim's pregnancy, and/or the disease contracted by the victim came from another sexual partner and not the defendant. And, as the South Carolina Supremes correctly noted, this exception is a separate exception from the "sexual conduct with the defendant" exception, which is used to prove that the sexual act between the victim and the defendant was consensual. In other words, the exception(s) in South Carolina Code section 16–3–659.1(1) cover(s):

-evidence of the victim's sexual conduct with the defendant; or

-evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease....

That said, the court found that the evidence that Tennant sought to admit with inadmissible under either of these exceptions and thus affirmed his convictions.

-CM

It's Too Late: Court Of Appeals Of Ohio Finds No Error In Exclusion Of Alleged Prior Consistent Statement

Like its federal counterpart, Ohio Rule of Evidence 801(d)(1)(b) provides that

A statement is not hearsay if...[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive....

As the recent opinion of the Court of Appeals of Ohio, First District, in State v. Strutz, 2011 WL 3111983 (Ohio App. 1 Dist. 2011), (sort of) makes clear, however, a statement can only qualify as a prior consistent statement under this rule if it was made before any motive to lie arose.

In Strutz, John Strutz was convicted of two counts of tampering with evidence, murder, and abuse of a corpse after he allegedly killed and dismembered his wife. After Strutz's wife "disappeared," Strutz was interrogated by Detective Macaluso, and this interrogation was recorded and transcribed.  At trial,

Strutz testified in his own defense. During his direct examination, Strutz admitted that he had reviewed the transcripts of his recorded conversations with Detective Macaluso and that the transcripts were "pretty accurate." He then moved to admit the recordings of those conversations into evidence to rebut testimony from police officers that Strutz had acted disinterested in the fact that his wife was missing. Strutz argued that his prior statements were not hearsay because they were not being offered to prove the truth of the matter asserted but to show his state of mind: that he was concerned about his missing wife. The state argued that Strutz's statements were hearsay and that he was only trying to admit them as a way to bolster his trial testimony.

After he was convicted, Strutz appealed, claiming, inter alia, the the trial court should have admitted the recordings as prior consistent statements under Ohio Rule of Evidence 801(d)(1)(b) or to prove his state of mind. In response, the Court of Appeals of Ohio, First District, preliminarily noted that Ohio courts have interpreted Rule 801(d)(1)(b)

to apply only to those prior consistent statements that have preceded prior inconsistent statements or that have been made before any motive to falsify testimony has arisen. Normally, Evid.R. 801(D)(1)(b) is used by the state to rebut the charge of "recent fabrication" raised by defense counsel during the cross-examination of a state's witness. If there has been sufficient impeachment of a witness to amount to a charge of recent fabrication at trial, then the state may be allowed to, introduce prior out-of-court consistent statements that would otherwise be considered hearsay. In determining whether to admit a prior consistent statement, a trial court should take a "generous view" of the "the entire trial setting to determine if there was sufficient impeachment to amount to a charge of fabrication or improper influence or motivation." 

Applying these standards to the case before it, the court concluded

that the trial court properly held that the recorded conversations between Strutz and Detective Macaluso were inadmissible under Evid.R. 801(D)(1)(b). First, Strutz had not yet been cross-examined regarding his statement to Detective Macaluso or the other officers. At that point, offering the recorded conversations into evidence could only be construed as an attempt to bolster Strutz's credibility, which made the recorded conversations hearsay because they were being offered for the truth of the matter asserted. Second, if Strutz wanted to offer these recordings to show his state of mind—that he had been concerned about the disappearance of his wife—he could have simply testified to that fact. Finally, we are not convinced that the other officers' testimony that Strutz seemed disinterested in the disappearance of his wife amounted to a charge of recent fabrication. Strutz had not changed his story from the time his wife had disappeared to the end of his trial.

All of these points are fine, but I feel like the Court of Appeals of Ohio missed the big picture. The key point is that Strutz was interrogated by Detective Macaluso after his wife disappeared and presumably after he killed his wife. Therefore, his statements during that interrogation were not made before any motive to lie arose. Therefore, regardless of what happened at trial, the recorded interrogation could not have been admissible as a prior consistent statement.

-CM

A Private Matter?: Military Court Opinion Reveals Problem With Military Rape Shield Rule

Federal Rule of Evidence 412(a), the federal Rape Shield Rule, provides that evidence of an alleged victim's sexual predisposition or other sexual behavior is inadmissible to establish her propensity to consent to sexual acts and her conformity with that propensity, and thus consent, at the time of the alleged rape or sexual assault. In turn,Federal Rule of Evidence 412(b)(1)(A)-(C) set forth exceptions to the Rape Shield Rule when such evidence is offered for other purposes at criminal trials, as long as the evidence is "otherwise admissible" pursuant to Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Meanwhile, Federal Rule of Evidence 412(b)(2) sets forth a general exception to the Rape Shield Rule when such evidence is offered for other purposes at civil trials, but only "if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." A comparison between the language in Federal Rule of Evidence 403 and Federal Rule of Evidence 412(b)(2) reveals at least a few key differences. Under Rule 403, evidence will be admissible unless its probative value is substantially outweighed by one of several dangers. Conversely, Rule 412(b)(2) flips that balancing test, with evidence only being admissible if its probative value substantially outweighs two dangers. Second, Rule 403 asks judges to consider the danger of unfair prejudice (and several other dangers never really raised in Rape Shield cases) while Rule 412(b)(2) asks judges to consider the danger of unfair prejudice "to any party" and "the danger of harm to any victim," the latter not being a danger listed in Rule 403. As the recent opinion of the United States Court of Appeals for the Armed Forces in United States v. Gaddis, 70 M.J. 248 (U.S. Armed Forces 2011), makes clear, the military rape shield partially incorrectly conflates these two tests. But are these tests as different as the court asserts, and does that difference have a Constitutional component?

In Gaddis, "[a] panel of officer and enlisted members sitting as a general court-martial convicted [Troy Gaddis], contrary to his pleas, of one specification of sodomy with a child under the age of twelve and four specifications of indecent acts with a child." On Gaddis' appeal, the United States Army Court of Criminal Appeals dismissed one specification of indecent acts with a child but otherwise affirmed.

Gaddis then appealed to the United States Court of Appeals for the Armed Forces, with the gravamen of his appeal being that the military judge at his court-martial violated his right to present a defense by deeming certain evidence inadmissible under Military Rule of Evidence 412(a), the military rape shield rule. According to the alleged victim, she told her mother that she was raped by Gaddis after learning that a physical examination was required for her to try out for the cheerleading team at her new school; "she did not want the examination because it would show that she had been raped by" Gaddis.

Gaddis in turn had wanted to present evidence that the alleged victim told her mother that she was raped by Gaddis after her mother discovered e-mails implying that she was otherwise sexually active, leading her to believe that her mother would force her to undergo a physical examination. The military judge did not categorically exclude such evidence, but, based upon the rape shield rule, he held that

You will not refer, Defense Counsel, to the prior sexual activity of the victim or the fact that the e-mails contained rumors of prior sexual activity. That would also confuse the panel. You may, however, refer to the mother's discovery of e-mails generically, and based upon those e-mails, the victim's mother wanted to take the victim to a gynecologist and that the alleged victim then made the allegations against the accused shortly thereafter. But you may not refer to the contents of the e-mails substantively or describe them as e-mails relating to sexual activity. Of course, both parties may argue permissible inferences from this evidence.

In his appeal to the United States Court of Appeals for the Armed Forces, Gaddis claimed that the balancing test prescribed by Military Rule of Evidence 412(c)(3) facially violated his right to present a defense. As is the case under the federal Rape Shield Rule, the military rape shield rule allows for a defendant to present evidence of an alleged victim's other sexual behavior for certain purposes subject to a balancing test. And, under the balancing test of Military Rule of Evidence 412(c)(3), such evidence is admissible if "the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy...."

The court did not agree that Military Rule of Evidence 412(c)(3)'s balancing test facially violates the Constitution but noted that there are some issues with it, holding that:

The M.R.E. 412(c)(3) "balancing test"...is anything but simple to understand or apply, but it is not facially unconstitutional. There is no question that even considering the privacy interest of the victim will yield a constitutionally valid result (1) when applied to evidence that is both constitutionally required and whose probative value outweighs the danger of unfair prejudice, as well as (2) when applied to evidence that is not constitutionally required and whose probative value does not outweigh the danger of unfair prejudice. The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim's privacy. In those circumstances, the test would be unconstitutional as applied. 

So, what does the court mean? Well, as the court noted in Gaddis,

the term “unfair prejudice” in the context of M.R.E. 403 "speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged."....M.R.E. 403 addresses prejudice to the integrity of the trial process, not prejudice to a particular party or witness.

Basically, then, the balancing test in Military Rule of Evidence 412(c)(3) is incorrectly worded. The military rape shield is supposed to be analogous to its federal counterpart, but its federal counterpart contains exceptions in criminal cases as long as the evidence satisfies the traditional Rule 403 balancing test in that it is not unduly prejudicial to the trial process. As the court in Gaddis noted, though, in its prior opinion in United States v. Banker, 60 M.J. 216 (2004), it incorrectly assumed that "unfair prejudice" in the context of former Military Rule of Evidence 412(c)(3) meant something different than "unfair prejudice" as the term is used in Rule 403. This is what led to the present version of Military Rule of Evidence 412(c)(3), which incorrectly conflates the civil and criminal exceptions to the Rape Shield Rule by focusing upon "unfair prejudice to the alleged victim's privacy...."

So what are the takeaways from Gaddis? Well, the first takeaway is that Military Rule of Evidence 412(c)(3) should be amended so that it is consistent with its federal counterpart and only references "unfair prejudice" and not "unfair prejudice to the alleged victim’s privacy...." But if it is not amended, is it such a big deal? I don't think so. In my mind, the biggest difference between the civil and criminal exceptions to the federal Rape Shield Rule is the inverted balancing test, not the nature of the "unfair prejudice" balanced. Why?

Well, it is not as if judges are precluded from protecting witnesses from attacks on their privacy and other harmful interrogation techniques. To wit, Federal Rule of Evidence 611(a) provides that

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Thus, regardless of whether the balancing test for the rape shield rule mentions witness harassment or privacy, judges can still consider such dangers as part of the admissibility calculus. I thus think that the wording of this portion of Military Rule of Evidence 412(c)(3) is less harmful then the Gaddis court intimated.

But wait a minute. If the court is correct that Military Rule of Evidence 412(c)(3) is meant to be modeled after its federal counterpart, isn't there a bigger problem with the rule? Under Federal Rule of Evidence 412(b)(1)(A)-(C), evidence of an alleged victim's sexual history offered for a permissible purpose in a criminal case is admissible as long as its probative value is not substantially outweighed by the danger of unfair prejudice (and other dangers) under Federal Rule of Evidence 403. Under Military Rule of Evidence 412(c)(3), evidence of an alleged victim's sexual history offered for a permissible purpose is admissible only if "the probative value of such evidence outweighs the danger of unfair prejudice to the alleged victim’s privacy...." These balancing tests are clearly different, meaning that if the military rule is to be amended, this portion definitely needs to be amended.

The second takeaway is that I think the court got the Constitutional analysis wrong. Again, according to the court,

The test would only be unconstitutional in circumstances under which a military judge excluded evidence, the exclusion of which would violate the constitutional rights of the accused, because its probative value did not outweigh the danger of unfair prejudice to the alleged victim's privacy. In those circumstances, the test would be unconstitutional as applied.

Why? The court is right that Military Rule of Evidence 412(c)(3) should not mention the alleged victim's privacy if it is supposed to be the equivalent of its federal counterpart. But this is an evidentiary issue, not a Constitutional issue. Similarly, the fact that Rule 611(a) does allow judges to protect witnesses from harassment or undue embarrassment is also an evidentiary issue, not a Constitutional issue.

So, let's look back at Gaddis' Constitutional argument. Gaddis argued that application of the military rape shield rule violated his right to present a defense. As the court responded, "rape-shield statutes like M.R.E. 412 do not violate an accused's right to present a defense unless they are 'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" Is it arbitrary to limit evidence of a young girl's sexual history to protect her privacy and avoid embarrassment? Is it disproportionate to do so based upon the history of rape shield rules and what historically went on in rape and sexual assault cases? I would say that the answer to both questions is "no," but the United States Court of Appeals for the Armed Forces implies that the answer to both questions is a clear "yes."

-CM

The University of Wisconsin Law School Invites Applications For Tenure-Track Faculty Positions

From an e-mail I just received:

THE UNIVERSITY OF WISCONSIN LAW SCHOOL invites applications for one or more tenure-track faculty positions to begin Fall 2012 (negotiable). Applications are welcome across legal fields and at the intersection of law and other academic disciplines. The University of Wisconsin Law School has a strong institutional commitment to diversity of all types, and we encourage applications from those whose backgrounds can further contribute to the diversity of the faculty. Applicants should submit a letter of interest, current résumé (including a list of teaching interests), a research agenda, and references to:

Professor Anuj C. Desai, Chair, Faculty Appointments Committee, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706-1399 (or via e-mail to <acdesai@wis.edu>). The University of Wisconsin-Madison is an affirmative action/equal employment opportunity employer.

Hairy Situation: D.C. Judge Precludes Investigator From Testifying About Defendant's Inability To Grow A Beard

The Felony Calendars is blogging about the murder trial of Gary Dickens and Antwarn Fenner. Here is the blog's inroductory description of the case:

On August 8, 2008, in the late evening hours, Stanley Daniels was shot to death in the 3500 block of Georgia Avenue, Northwest, in Washington, D.C.  Daniels was 48 years old at the time.

Two men are charged with premeditated murder for Daniels' death:  Gary Dickens, now 41; and Antwarn Fenner, now 37. 

The government's theory is that Daniels' killing was a revenge killing.  On July 8, 2008 -- one month to the day before Daniels was killed -- Gary Dickens' estranged wife was stabbed to death.  In the days leading up to the shooting, Dickens and Antwarn Fenner -- Dickens' cousin -- understood that Stanley Daniels was the one who killed the wife.  

And so, the government will say, Dickens and Fenner conspired to kill Daniels.  Documents filed with the court suggest prosecutors will try to prove that both men planned the murder, and then Fenner pulled the trigger.

Fenner and Dickens were both indicted on first-degree murder and conspiracy charges.  Fenner alone faces weapons possession charges.

You can check out The Felony Calendars for detailed descriptions of the daily goings-on in the case, but in this post I wanted to focus on an interesting evidentiary ruling in the case dealing with the (in)admissibility of evidence about Fenner's alleged inability to grow a beard.

When asked about the shooting, an eyewitness held his hands out to either side of his face, apparently indicating a beard, and said the shooter's facial hair was "full." At trial, defense counsel, Michael Satin,

sought permission to introduce evidence that Fenner is physically incapable of growing a full beard.  His plan had two components:  first, Satin's investigator would testify that he's inspected the sides of Fenner's face, and has seen nothing (like stubble) to indicate Fenner can grow hair there.  And second, Fenner would give jurors a close-up of the sides of his face, so they could confirm the investigator's testimony.

The judge, however, reserved ruling on the second issue and precluded the investor from testifying, concluding that the private investigator was not qualified to give an opinion about whether the sides of Fenner's face are able to grow hair but leaving open the possibility for testimony from someone better-qualified. 

The next week, the judge did permit testimony by Fenner's ex-wife, who testified that when they were married, Fenner's 

facial hair was much as it was now:  a mustache and hair on his chin.  The mustache might have been thicker or thinner sometimes, but she has never seen him with hair on his cheeks -- even when he's gone for a few days without shaving.

Thereafter, the prosecutor presented partially contradictory evidence such as Fenner's booking photo, in which "Fenner had a full mustache and patchy tufts of hair along his jawline."

So, was the judge correct to exclude the investigator's testimony about Fenner's alleged inability to grow a beard? I found two cases partially on point.

In the first, People v. Alleyne, 99 Cal.Rptr.2d 737 (Cal.App. 4 Dist. 2000), the Court of Appeal, Fourth District, Division 3, California, affirmed a defendant's conviction for conspiracy to commit murder. In affirming, however, the court noted that

Alleyne's defense at trial focused primarily on Wengert's identification of him as the shooter. Several of his friends testified he did not have a beard, an earring, or sweat suit, all of which Wengert had attributed to the shooter. A dermatologist and a defense investigator provided corroboration Alleyne could not grow a beard.

Interesting. I don't know whether the prosecution objected to this testimony, but the dermatologist presumably provided expert testimony while the investigator presumably provided lay testimony.

Meanwhile, in State v. Jefferson, 516 P.2d 578 (Ariz. 1973), the Supreme Court of Arizona affirmed a defendant's conviction for robbery. At trial, eyewitnesses had testified that the robber had a beard, and the court then allowed an officer to offer his opinion that, at the time of arrest, the defendant had a "[b]eard on the side of the cheeks or jawbone [that] seemed to be about two to four days old."

In affirming, the Supreme Court of Arizona noted that while lay opinion might ordinarily not be allowed on this type of issue, there is an exception to the general rule pursuant to which

A witness may state his impression or inference with respect to the appearance of a person, animal, object, or place, if he has had adequate opportunity for observation, the details of such appearance cannot be reproduced before the jury to enable them to draw a correct inference, and he states as much as possible of the constituent facts.

The court then found that

The testimony to which objection was made could be considered as falling under the exception to the opinion rule, and the most rational means of describing the length of the beard was in terms of days' growth. Obviously the officer's estimate of a two- to four-day growth was not to be considered an exact statement; it was an estimate. The trial judge's ruling permitting the testimony to be admitted was not an abuse of his discretion; hence not error.

Both of these cases would seem to point to the conclusion that the judge in the trial of Dickens and Fenner should have allowed the investigator to testify. That said, D.C. courts apply a weird test for when lay opinion testimony can be admitted and when expert testimony is required. Very weird. In fact, I would say that the test sticks out like a sore thumb compared to the tests applied by all other jurisdictions. In fact, I recently completed an essay on the topic that I will soon be posting here and on SSRN. And, under the test, I can see why the judge excluded the testimony. More details to come.

-CM

No (P)reservations: 7th Circuit Finds Plaintiff Failed To Preserve Impeachment Issue In Section 1983 Appeal

Federal Rule of Evidence 103(a)(2) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...

(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

When, at trial, the court prevents the admission of evidence and there was no prior definitive ruling, the adverse party must make an offer of proof in compliance with Rule 103(a)(2). And that was a problem for the plaintiffs in Duran v. Town of Cicero, 2011 WL 3444353 (7th Cir. 2011).

In Duran, 

scores of individual plaintiffs against 17 police officers and the Town of Cicero, Illinois, alleging federal civil-rights violations and various state-law torts. The claims arose out of an ugly confrontation between officers of the Cicero police force and nearly 100 partygoers—most of Mexican descent—who were celebrating a baptism at a Town of Cicero home. Responding to neighborhood complaints about the party, officers arrived on the scene and first attempted to quiet and later to disperse the crowd. Some of the revelers objected to these efforts, and after a period of escalating tension between police and the party guests, a full-blown melee ensued. By night's end many people—officers and civilians alike—were injured, and seven people were placed under arrest.

Thereafter,

78 of the partygoers filed suit against 17 officers and the Town alleging a raft of federal and state causes of action, including claims under 42 U.S.C. § 1983 for use of excessive force, false arrest, and deprivation of equal protection, and state-law tort claims for battery, malicious prosecution, hate crimes, and evidence spoliation.

After the jury returned a verdict in favor of 23 of the plaintiffs against 6 of the officer and the town, both sides cross-appealed. Part of the basis for the plaintiffs' cross-appeal was that the district court erred by precluding them from impeaching one of the officers, William Peslak, through his conviction for an unrelated civil-rights conviction under 18 U.S.C. § 242.

Before trial, Peslak moved in limine to exclude evidence of this conviction at trial, and the plaintiffs countered that it was admissible under Federal Rule of Evidence 609(a), which provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Ultimately,

 

The district court granted Peslak's motion to exclude his civil-rights conviction in an omnibus order that covered many other evidentiary issues. The judge made it clear, however, that this ruling was tentative. The order specifically explained that "[d]uring the course of the trial, the parties may move to reconsider any of these rulings if they believe the evidence warrants reconsideration."

 

And, indeed, the plaintiffs did move for reconsideration at trial, but they only claimed that the conviction was admissible under Federal Rule of Evidence 609(a)(2), not under Federal Rule of Evidence 609(a)(1). According to the Seventh Circuit, this meant that the plaintiffs failed to preserve the issue of whether the conviction was admissible under Federal Rule of Evidence 609(a)(1). According to the court,

We have held that where the district court makes a tentative or conditional evidentiary ruling before trial, the adversely affected party must renew its objection at trial in order to preserve the issue for appeal....The plaintiffs did raise the issue of Peslak's conviction at trial, but only argued that it was admissible as a crime of dishonesty. Any argument that Peslak's conviction was admissible under Rule 609(a)(1) is therefore forfeited. The district court properly excluded evidence of Peslak's conviction under Rule 609(a)(2) because the elements of his crime did not include acts of dishonesty or false statements. 

This meant that the Seventh Circuit could only reverse for plain error, and it refused to do so because "[t]he plaintiffs d[id] not advance a plain-error argument on this point."

-CM

Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Impeachment Of Reluctant Witness Fine Under Rule 607

North Carolina Rule of Evidence 607 provides that "The credibility of a witness may be attacked by any party, including the party calling him." That said,  courts have consistently ruled that such impeachment is impermissible where it is used as a mere subterfuge to present evidence to the jury that is otherwise inadmissible. So, let's say that the prosecution knows that it has a reluctant witness who is only testifying because he was subpoenaed and advised that he would be arrested if he failed to appear at trial. Can the prosecution call this witness and then impeach him with statements that incriminate the defendant? According to the recent opinion of the Court of Appeals of North Carolina in State v. Austin, 2011 WL 3570111 (N.C.App. 2011), the answer is "yes," at least based upon the facts before it.

In Austin, James Austin was convicted of first degree murder and attempted armed robbery based upon a shooting outside of a Busy Mini Mart on December 6, 2006. At trial,

The State called defendant's friend, Rodney Morrison, who stated that he had seen defendant at the Busy Mini Mart on 6 December 2006. Morrison was asked whether defendant had a gun that evening, if defendant discussed robbing anyone, and whether he found a shell casing at the Busy Mini Mart after the shooting. Morrison generally said he did not remember or did not recall the answers to any of these questions. The trial court then conducted a voir dire of Morrison. Morrison testified that he did not remember talking to police on 13 December 2006, and he refused to say whether the voice played on a recording from that meeting was his. Morrison further testified during the voir dire that he did not remember being in the prosecutor's office and pointing out the spot on a map where he found a shell casing. He also testified that he did not remember receiving threats from individuals who did not want him to testify against defendant. 

The State then presented voir dire testimony from Detective C.M. Hopkins, who interviewed Morrison on December 13, 2006.

Detective Hopkins testified that Morrison told her that he saw defendant at the Busy Mini Mart on the day of the shooting, that defendant showed him a handgun, and that defendant told him that he was going to rob someone. She also testified that Morrison gave her a shell casing that he found behind the Busy Mini Mart.

Based upon the testimony by Hopkins and another witness, the trial court determined that Austin could be-recalled and impeached through prior inconsistent statements that he made during the prior interview. Thus, the State impeached Morrison with his prior statement when he

was again questioned in front of the jury following the voir dire proceedings. He testified that he, defendant, and Dwayne Stowe were all at the Busy Mini Mart on the day of the shooting, but he could not remember whether defendant had a gun or mentioned a plan to rob anyone. He also testified that he could not remember finding the shell casing, nor could he remember if defendant was wearing a camouflage jacket. Morrison claimed that he did not remember meeting or giving a statement to Detective Hopkins prior to the trial. Throughout his testimony, Morrison said that he was not necessarily denying that he made those statements to police, just that he did not remember making them. Specifically, Morrison stated: "I'm not saying I didn't say it. I don't remember saying it."

After he was convicted, Austin appealed, claiming that the impeachment of Morrison was mere subterfuge to get his prior inconsistent statements before the jurors in the hope that they would use them as substantive evidence of Austin's guilt rather than merely as impeachment evidence. The Court of Appeals of North Carolina disagreed, finding that

the State subpoenaed Morrison to appear in court and knew that he was reluctant to testify, but, as the State argues, there is no evidence suggesting that he would suddenly claim to have no knowledge concerning the events of 6 December 2006. In fact, when Morrison met with Detective Vinson in March 2010, just a month before trial, he gave no indication that he had trouble remembering what happened on 6 December 2006. During the interview, Morrison remembered where he found the shell casing and that he told defendant not to rob anyone.

Based on these facts, we hold that the trial court did not abuse its discretion when it ruled that "based on the voir dire,...Mr. Morrison's testimony is obviously other than what the State had a reason to expect ... and that the State has a right to impeach him." 

-CM