EvidenceProf Blog

Pretty Intimidating: Tenth Circuit Denies Appealability Petition In Jury Intimidation Case

Similar to its federal counterpart, Colorado 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

In its recent opinion in Selectman v. Zavaras, 2011 WL 3805614 (10th Cir. 2011), the Tenth Circuit denied a petition for a Certificate of Appealability to challenge the district court's denial of the petitioner's petition for writ of habeas corpus. And while I don't disagree with the court's conclusion, I wonder why the Colorado appellate courts did not previously award the petitioner a new trial based upon jury impeachment that was admissible under an exception to Rule 606(b).

In Selectman, Christopher Selectman,

who was sixteen years old at the time, and two other individuals telephoned McKinley Dixon to purchase marijuana and arranged to meet Dixon in person to complete the transaction....While the precise events that transpired during the meeting were "disputed at trial," several witnesses testified that Selectman "pull[ed] a gun."...At some point during the encounter, Dixon was shot and killed.

After a jury trial, Selectman was convicted of murder in the first degree (felony murder), murder in the second degree, and attempt to commit aggravated robbery. Thereafter,

Selectman filed a motion for new trial....In his motion, Selectman "assert[ed] that the jury's verdict must be vacated because there was a reasonable possibility that extraneous influences and extraneous information affected the verdict."...The motion identified that "[Juror H] was confronted and cursed at by a member of the victim's family," that another juror "had come into contact [in a courthouse elevator] with a group of individuals [from] the prosecution side of the courtroom during the trial" making "negative comments regarding the proceedings," and that "most, if not all, members of the jury were advised [of these contacts] prior to...deliberations."...Further, the motion indicated that jurors "considered extraneous and prejudicial information regarding gang tattoos and speculated as to possible gang overtones connected to the case."...After a hearing, the trial court denied the motion....On May 6, 1996, the trial court sentenced Selectman to life in prison without parole.

After he was convicted, Selectman appealed, and the Court of Appeals denied his appeal and the Supreme Court of Colorado denied certiorari review, prompting Selectman's petition for writ of habeas corpus. By the time Selectman's case reached the Tenth Circuit, the court was merely deciding whether Selectman received the ineffective assistance of counsel in connection with his jury claims, and the court found that he did not:

With regard to Selectman's claim that his counsel failed to obtain thorough statements from certain jurors—Juror M, Juror H, and Juror T—regarding the intimidating incidents, the state court record indicates that counsel investigated the events, submitted a motion for new trial based on the investigation, and supported the motion with affidavits from certain jurors and the defense investigator that interviewed the jurors. In fact, counsel supported the motion with affidavits from Juror M, Juror H, and Juror T....These affidavits documented that a member of the victim's family "swear[ed] at" Juror H in a parking lot and that the jurors discussed this incident, that another juror came into contact in a courthouse elevator with a "group of people from the prosecution side of the court room [who were]...making negative comments about the case" and that this was discussed among the jurors, and that jurors discussed a gang related tattoo they observed on the victim's arm in photographs presented at trial....These affidavits further indicated that "[s]ome of the jurors were intimidated by this information."...Thus, although Selectman contends that counsel failed to obtain the precise statements made to the jurors or the context in which these contacts occurred, the CCA reasonably concluded that counsel's performance was constitutionally adequate.

As I noted above, I agree with the Tenth Circuit's conclusion, and the reason I agree is that it seems as if Selectman's counsel performed adequately. My question is why the Court of Appeals of Colorado reversed and the Supreme Court of Colorado denied cert.

The evidence clearly indicates that there were improper outside influences upon the jurors and that the jurors who were subjected to these influences were intimidated by them and discussed them with other jurors. I'm not sure that the gang tattoo ws extraneous prejudicial information because the photograph was properly introduced at trial, but the photo and the ensuing discussion merely seems to corroborate the claim that jurors were deliberating in a state of fear and intimidation. Now, maybe the evidence against Selectman was so overwhelming that none of this mattered, and, unfortunately, I don't have access to any substantive discussion of Selectman's case in the Colorado courts. That said, based upon what transpired, it certainly seems to me that a new trial esily could have been warranted for Selectman.

-CM

Wrong Turn?: Supreme Court Of Montana Finds Placement Of Sign At Intersection After Accident Not Admissible To Impeach Under Rule 407

Like its federal counterpart, Montana Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, evidence of subsequent remedial measures are not admissible to probve negligence, but it is admissible to impeach a witness. So, let's say that a witness testified concerning the (lack of) dangerousness in the intersection in which an accident occurred. Can the plaintiff then present evidence of a "no left turn" sign placed at the intersection after the accident, not to prove negligence, but to impeach the witness' testimony? According to the recent opinion of the Supreme Court of Montana in United Tool Rental, Inc. v. Riverside Contracting, Inc., 2011 WL 2011 WL 3847217 (Mont. 2011), the answer is "no."

In Riverside Contracting, on July 13, 2007, Lynn Paulsen, an employee of United Tool Rental (UTR),

was driving a work truck southbound through a construction zone on Highway 93. Ahead of Paulsen, a minivan and two other vehicles were stopped at the intersection of Highway 93 and Old Highway 93, while the lead vehicle attempted to make a left-hand turn onto Old Highway 93. Paulsen rear-ended the minivan and then veered into the northbound lane and collided with a vehicle driven by Ann Marie Matt....

In the months leading up to the crash, construction barricades had been placed at the intersection of Old Highway 93 and Highway 93 to prevent vehicles from negotiating left-hand turns from southbound Highway 93 onto Old Highway 93. The barricades were removed on or around June 11, 2007.

Thereafter, "[f]our days after the crash, the DOT replaced the construction barricades at the intersection, citing concerns from the Montana Highway Patrol (MHP) and an increase in summer traffic." Moreover,

Six days after the crash, Trooper Michael Gehl, the investigating MHP officer, authored a memorandum regarding his concerns about Highway 93. Trooper Gehl expressed concern that (1) the grade of the roadway created a substantial blind spot for motorists; (2) the limited area of roadway between guardrails prevented vehicles from avoiding collision; (3) the location of the Old Highway 93 intersection posed an imminent hazard; and (4) insufficient signage existed indicating the presence of a construction zone and a "no left turn" sign was necessary. A short time later, the DOT erected a "no left turn" sign at the intersection of Old Highway 93 and Highway 93.

Matt eventually sued UTR and Paulsen, and the UTR and Paulsen in turn sought contribution from the State of Montana DOT, Riverside Contracting, Inc., Highway Technologies, Inc., and Carter & Burgess, Inc. (collectively the "Construction Parties"), alleging that their negligent design, construction, and maintenance of Highway 93 contributed to the crash. UTR and Paulsen subsequently settled with Matt and proceeded to trial against the Construction Parties, with the jury ultimately finding UTR and Paulsen were one hundred percent at fault for the crash.

UTR and Paulen then appealed, claiming, inter alia, that the trial court erred by precluding them from impeaching the testimony of the Construction Parties' witnesses regarding the dangerousness of the intersection where the crash occurred through evidence of the placement of the "not left turn" sign after the accident. In addressing this argument, the Supreme Court of Montana initially acknowledged that evidence of subsequent remedial measures can be admissible unde Montana Rule of Evidence 407 for impeachment purposes. That said, the court then noted that "'evidence of subsequent remedial measures...is not admissible for impeachment where the sole value of the impeachment rests on [the] same impermissible inference of prior negligence.'"

Accordingly, subsequent remedial measures are admissible for impeachment purposes "where the defendant goes beyond stating that the original condition was safe or adequate[] and attempts to make exaggerated claims that the condition was the safest possible...." To admit "such evidence when it does not directly impeach a witness's testimony or other evidence offered by a defendant contravenes the general rule that such evidence is inadmissible to prove negligence."

The Montana Supremes then found that it had not previously directly addressed the breadth of the impeachment exception to Rule 407," "a review of our subsequent remedial measures jurisprudence supports a narrow interpretation of the impeachment exception." Moreover, the court concluded that

Narrowly applying the impeachment exception here does not conflict with our Rule 407 jurisprudence and supports the general mandate that subsequent remedial measures are not admissible to prove negligence. The Construction Parties merely claimed their design, construction, and maintenance of Highway 93 were adequate. Because their defense did not go beyond denying negligence, as opposed to making exaggerated claims that their design, construction, and maintenance of Highway 93 were the safest or best, impeachment was not at issue here. The District Court did not abuse its broad discretion in excluding evidence of the post-crash placement of the "no left turn" sign.

-CM

Rule 609 and the Frustratingly Unkillable Five-Factor Mahone Framework

Thanks Colin for inviting me to be a guest blogger!  I wanted to start my stint with a somewhat technical critique of the courts’ application of Evidence Rule 609 – I see this as one of the lowest hanging fruits in terms of things I would love to change in modern evidence jurisprudence, and a fairly important one for criminal trial practice.

Every few weeks, an American court publishes an opinion that explains why a defendant’s criminal conviction was admissible to impeach his credibility under Federal Rule of Evidence 609, or a state analogue.  See Federal Rule Evidence of 609 (permitting prosecution to impeach a defendant with prior convictions “if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused”).  The opinion inevitably contains an argument along these lines:  the defendant’s testimony, in which he claimed to be innocent, was “important” and his credibility “central” to the case and therefore impeachment was necessary to allow the jury to render a proper verdict.

Here is a recent example:

“The court agrees with the government that the . . . Defendant’s testimony will conflict with that of the government's witnesses, making Defendant’s credibility central to the case.  As Defendant’s testimony and credibility will be of great importance, the court believes 99–CF–491 may be used as impeachment evidence should Defendant elect to testify.”

U.S. v. Sutton, No. 10–CR–20048, 2011 WL 2671355, 5 (C.D.Ill. July 8, 2011)

This reasoning reflects a misunderstanding of the applicable legal standard – a misunderstanding that is now so common that it seems almost futile to try to correct it. 

At the same time, the flaw in the reasoning described above is so obvious it is difficult to understand its persistence.  Every time a defendant testifies, his testimony will be “important” (if believed) and therefore his credibility will be “central to the case.”  How can these factors – which will always be present in this form – be determinants of whether to allow impeachment under Rule 609?

The surprising answer is that this analysis flows directly from a flawed, five-factor balancing test – a test that was distilled from a pre-Rules case (Gordon v. United States, 383 F.2d 936, 939 (D.C. Cir. 1967)) by United States v. Mahone, 537 F.2d 922, 929 (7^th Cir. 1976).  The Mahone factors, explicitly intended to govern Rule 609 decisions, have spread like a plague through state and federal courts.  They are:

"(1) The impeachment value of the prior crime.

(2) The point in time of the conviction and the witness’ subsequent history.

(3) The similarity between the past crime and the charged crime.

(4) The importance of the defendant’s testimony.

(5) The centrality of the credibility issue."  Mahone, at 929.

I declared war (academically speaking, of course) upon this framework in an article entitled Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis Law Rev. 289 (2008).  So far the framework is winning.  But today, thanks to EvidenceProf Blog, I open up a new front:

The fourth and fifth factors are the obvious culprits in the reasoning described above.  Interestingly, though, if you trace these factors back to Gordon from whence they came, it is clear that the fourth factor was actually intended to protect defendants from impeachment.  The idea was that if the impeachment is allowed, a defendant will decline to testify, and as a result the jury will be deprived of his testimony.   Gordon at 940.  If that testimony is “important,”  then, the trial court should be reluctant to allow impeachment.  Id.

It is less clear what the Mahone court intended by the fifth factor; the court likely was thinking of the portion of Gordon where the D.C. Circuit emphasized that the case “had narrowed to the credibility of two persons, the accused and his accuser” creating a critical need for additional information that might shed light on which witness to believe.  Gordon at 941.  (In Gordon, the defendant had also impeached the accuser with a prior conviction.  Id. at 938-39.)

In their original incarnation, the fourth and fifth Mahone factors were always in tension.  When the defendant had something important to tell the jury – e.g., “I am not guilty because . . . ” – the fourth factor suggested that impeachment should be prohibited, while the fifth factor arguably suggested that impeachment should be allowed.  If faithfully interpreted, these factors would, for the most part, cancel each other out.  This is not how things have played out.

Over the past decades and continuing to the present, the courts have steadily lost sight of the meaning of the fourth factor and, without explanation, gradually transformed it.  In modern application, as illustrated in the excerpt above, the fourth factor is reversed and generally combined with the fifth factor to create a mega, pro-impeachment factor (“the importance of the defendant’s credibility”).

Make no mistake, the federal District Court quoted above is just following the lead of its appellate court.  Here is the Seventh Circuit recently making the same mistake:

“Here, [the defendant-] Toliver’s testimony and credibility were central to the case: either he was lying or [the govt. witness] was lying. Thus, although the similarity of [Toliver’s] two crimes increased the risk of prejudice, the importance of Toliver’s credibility weighed in favor of admissibility.”

U.S. v. Toliver, 374 Fed.Appx. 655, 658, 2010 WL 882840, 3 (7^th Cir. 2010) (italics added).

 The Minnesota appellate courts make no effort to obscure their conflation of the two factors, explaining in an oft-quoted passage:

 “If credibility is a central issue in the case, the fourth and fifth . . . factors weigh in favor of admission of the prior convictions.”  

State v. Odeneal, 2011 WL 1833018, 4 (Minn.App. 2011) (quoting Swanson, 707 N.W.2d at 655) (itals added).

Here is a recent decision from Maryland:

“One of the critical considerations the jury had to contemplate was the question of whom to believe—[the defendant-]Cure or the identifying detective.  Cure’s testimony, which amounted to the bulk of his defense, made ‘credibility ... the central issue’ in the case, and, therefore, factors four and five weigh heavily in favor of admissibility.”

Cure v. State, --- A.3d ----, 2011 WL 3568839, 15 (Md. Aug. 16 2011)

At its core, this frustratingly common interpretive error is just a misunderstanding of the meaning of the fourth Mahone factor.  Courts are simply applying it backwards.  This is clear in a recent Texas case where the court erroneously says that the fact that the defendant’s testimony was not important (because others testified to the same effect) “militate[s] against admissibility.”  Phelps v. State, No. 07–10–00443–CR, 2011 WL 2582810, 3 (Tex.App. 2011)  The Texas court nevertheless ruled that impeachment was still proper because “the credibility of appellant's testimony was critical” – although how that could be true if his testimony was not important is left unexplained.  Id.

What to do?  It would be best if courts would simply stop applying the hopelessly flawed five-factor framework (and particularly the 4^th and 5^th factors) and focus instead on the familiar concepts of unfair “prejudice” and “probative value” invoked by Rule 609.  At a minimum, however, if the courts are going to continue to apply this multi-factor framework, they must apply it correctly, recognizing that the fourth factor is not the same as the fifth factor – but is, more accurately, its opposite.  If an opinion emphasizes that the defendant’s testimony is important, then that is a factor that supports exclusion, not admission, of the defendant’s criminal record.  See Gordon at 941 n.11 (explaining that the trial judge should “consider whether the defendant’s testimony is so important that he should not be forced to elect between staying silent-risking prejudice due to the jury’s going without one version of the facts- and testifying- risking prejudice through exposure of his criminal past”).

Jeff Bellin

(Not To) Burst Your Bubble: 3rd Circuit Finds District Court Erred In Applying Rule 301 In Mortgage Cancelling Appeal

Federal Rule of Evidence 301 provides that

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

So, what does it take for a party to to detroy the presumption prescribed by Rule 301? According to the recent opinion of the Third Circuit in Cappuccio v. Prime Capital Funding LLC, 2011 WL 3584323 (3rd Cir. 2011), the answer is "not much."

In Cappuccio, 

Appellant Karen Cappuccio appeal[d] an unfavorable jury verdict on her complaint under the Truth In Lending Act (“TILA”), 15 U.S.C § 1601 et seq., against Appellee E*Trade for its failure to properly notify her of her right to cancel her home mortgage. Cappuccio challenge[d] various aspects of the jury instructions, including the District Court's directive that because her signature was on the notice of right to cancel, "something more than just [her] testimony...[wa]s needed to rebut the presumption that she received" the notice. 

Specifically,

Cappuccio sought to prove that she did not receive the notices of her right cancel at the closing, and further, that to the extent she did receive the notices in the mail after the closing, they were not clear and conspicuous because they listed the wrong final rescission date and because they were received only after the loan funds had been disbursed, thus triggering a three-year extension of her right to rescind the mortgages.

As noted, though, the district court instructed the jury that "[i]n a TILA case, something more than just the testimony of the borrower is needed to rebut the presumption that she received two copies of the Notice."

In addressing Cappuccio's appeal, the Third Circuit cited the aforementioned language of Federal Rule of Evidence 301 and determined that it stood for the proposition that "unless Congress or the Rules of Evidence provide otherwise, 'a presumption in a civil case imposes the burden of production on the party against whom it is directed, but does not shift the burden of persuasion.'" And, "[u]nder this theory, called the 'ThayerWigmore 'bursting bubble' theory of presumptions[,]...'the introduction of evidence to rebut a presumption destroys that presumption, leaving only that evidence and its inferences to be judged against the competing evidence and its inferences to determine the ultimate question at issue.'"

Moreover,

the quantum of evidence needed to "burst" the presumption's "bubble" under Rule 301 is also minimal, given that "the presumption's only effect is to require the party [contesting it] to produce enough evidence substantiating [the presumed fact's absence] to withstand a motion for summary judgment or judgment as a matter of law on the issue."....We have previously held that a single, non-conclusory affidavit or witness's testimony, when based on personal knowledge and directed at a material issue, is sufficient to defeat summary judgment or judgment as a matter of law....This remains true even if the affidavit is "self-serving" in the sense of supporting the affiant's own legal claim or interests....Here, Cappuccio's testimony related directly to a material issue in her TILA claim: whether she received two copies of a notice of the right to rescind her First Magnus loan when she left Krajczar's house on the night of the closing. Her testimony was also obviously based on her personal knowledge and was in no way conclusory.

Thus, the Third Circuit had no problem concluding that "under Rule 301, [Cappuccio]'s testimony would appear to be sufficient to burst the presumption's bubble, leaving the decision of whether to credit her testimony, or that of E*Trade's witnesses, to the jury." Finally, because Congress did not through any Act "otherwise provide[]" for a stronger burden than the one provided by Rule 301, the court could conclude "that the testimony of a borrower alone is sufficient to overcome TILA's presumption of receipt." 

-CM

Please Welcome Guest Blogger Jeffrey Bellin

Please welcome Jeffrey Bellin as a guest blogger for the months of September and October. Professor Bellin is an Assistant Professor at the SMU Dedman School of Law, where he teaches Evidence, Criminal Law, and Criminal Procedure. Before joining SMU, Professor Bellin was a prosecutor with the United States Attorney’s Office in Washington, D.C, an associate at the San Diego office of Latham & Watkins, and a Senior Attorney for the California Courts of Appeal. His articles include:

•Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, 160 UNIVERSITY OF PENNSYLVANIA LAW REVIEW (forthcoming 2011-2012);

•Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 CORNELL LAW REVIEW 1075 (2011) (with Junichi P. Semitsu);

•Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, 71 OHIO STATE LAW JOURNAL 229 (2010) (reviewed here); and

•Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS LAW REVIEW 289 (2008).

-CM

Please Welcome Guest Blogger Marc C. McAllister

Please welcome Marc C. McAllister as a guest blogger for the month of September. Professor McAllister is a Professor at the Florida Coastal School of Law, where his teaching and scholary interests are in the fields of Criminal Law, Criminal Procedure, Evidence, Constitutional Law, Administrative Law, and Comparative Law. His specific areas of expertise are in Confrontation Clause jurisprudence and the use of emerging technologies in criminal investigation, enforcement, and adjudication. Before coming to Florida Coastal, he was a judicial clerk for Judge Charles R. Wilson, Eleventh Circuit Court of Appeals and the Director of Legal Research and Writing at the Western State University College of Law. His articles include:

•Evading Controntation: From One Amorphous Standard to Another (anticipated publication spring 2012);

•The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L. Rev. 481 (2010) (reviewed here);

•Down But Not Out: Why Giles Leaves Forfeiture by Wrongdoing Still Standing, 59 Case W. Res. L. Rev. 393 (2009); and

•Two-Way Video Trial Testimony and the Confrontation Clause: Fashioning a Better Craig Test in Light of Crawford, 34 Florida State University Law Review 835 (2007).

-CM

Unspecified Error, Tale 2: Supreme Court Of Minnesota Reverses Prior Precedent, Allows For Impeachment Through Unspecified Prior Convictions

About two years ago, I posted an entry about the opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009). In Utter, the defendant was on trial for violating a harassment restraining order, and the prosecution sought to impeach him through his prior conviction for violating an order of protection. The trial court ruled that the prosecution could impeach Utter by asking him whether he had a prior conviction but could not ask him any questions concerning the crime leading to that conviction or the circumstances surrounding that conviction. This is what is known as impeachment through an unspecified prior conviction.

After he was convicted, Utter appealed, claiming that impeachment through unspecified convictions is improper, and the Court of Appeals of Minnesota agreed, concluding that

The court's solution substantially reduced the risk of admitting a prior conviction to impeach that is identical or similar to the current conviction, namely that the jury may conclude that because the defendant “did it before, he most likely has done it again.” But the court's solution also discarded the measure by which the jury could assess the impeachment value of the prior conviction. The impeachment value of the prior crime varies with the nature of the offense....By shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had.

In its recent opinion in State v. Hill, 2011 WL 3687535 (Minn. 2011), however, the Supreme Court of Minnesota overruled Utter and endorsed the idea of impeachment through unspecified prior convictions.

In Hill, Ronald Hill was charged with first-degree premeditated murder.  Previously, Hill was convicted of felony robbery in Illinois in 2008, and the trial

court weighed the probative impeachment value against the potential prejudicial effect in admitting the 2008 Illinois robbery conviction. The court concluded that, because of the similarity between the 2008 conviction and the aggravated robbery count in this case, the State could only present evidence that Hill was convicted of an unspecified felony in September 2008. The court prohibited the State from "referenc[ing] what the conviction was for" because of the potential prejudicial effect of the evidence.

After he was convicted, Hill appealed, claiming that the trial court erred by permitting the prosecution to impeach him through evidence that he had an unspecified prior conviction. His appeal eventually reached the Supreme Court of Minnesota, which held that the issue was governed by Minnesota Rule of Evidence 609(a), which provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

And, according to the Minnesota Supremes, once the requirements of Rule 609(a) have

been satisfied, the rule does not further require the impeaching party to offer evidence about the details or nature of the conviction at the time of impeachment at trial. In other words, the nature of the prior conviction—whether it is a felony or crime of dishonesty—is relevant only to a court's preliminary determination of admissibility. The rule, therefore, does not prohibit impeachment through an unspecified felony conviction so long as the impeaching party can make a threshold showing that the underlying conviction falls into one of the two categories of admissible convictions under Rule 609(a).

The court then noted there used to be the common law doctrine of disqualification by infamy, under which convicted felons could not even testify and held that

Under both our approach to Rule 609(a) and the common law tradition, it is the general lack of respect for the law, rather than the specific nature of the conviction, that informs the fact-finder about a witness's credibility, at least with respect to convictions other than those involving dishonesty or false statements. In other words, any felony conviction is probative of a witness's credibility, and the mere fact that a witness is a convicted felon holds impeachment value.

The Supreme Court of Minnesota thus overruled Utter and concluded that its new approach was consisent with the approach in many jurisdictions:

Our research reveals that a number of other jurisdictions have addressed the admissibility of unspecified felony convictions for impeachment purposes. Fifteen jurisdictions grant trial courts discretion about whether to admit unspecified felony convictions as impeachment evidence: the First Circuit (United States v. Powell, 50 F.3d 94, 102 (1st Cir.1995)); the Tenth Circuit (United States v. Howell, 285 F.3d 1263, 1268–69 (10th Cir.2002)); Alaska (City of Fairbanks v. Johnson,723 P.2d 79, 84 (Alaska 1986)); Connecticut (State v. Geyer, 194 Conn.1, 480 A.2d 489, 498 (Conn.1984)); the District of Columbia (Goodwine v. United States, 990 A.2d 965, 968 (D.C.2010)); Florida (Fulton v. State, 335 So.2d 280, 284 (Fla.1976)); Idaho (State v. Shepherd, 94 Idaho 227, 486 P.2d 82, 84–85 (Idaho 1971)); Massachusetts (Commonwealth v. Ioannides, 41 Mass.App.Ct.904, 668 N.E.2d 845, 846 (Mass.App.Ct.1996)); Nevada (Plunkett v. State, 84 Nev.145, 437 P.2d 92, 93–94 (Nev.1968)); New Jersey (State v. Brunson, 132 N.J.377, 625 A.2d 1085, 1092–93 (N.J.1993)); New Mexico (State v. Williams, 76 N.M.578, 417 P.2d 62, 65 (N.M.1966)); New York (People v. Hayes, 97 N.Y.2d 203, 738 N.Y.S.2d 663, 764 N.E.2d 963, 966 (N.Y.2002)); Oregon (State v. Sims, 298 Or.360, 692 P.2d 575, 577 (Or.1984)); South Dakota ( State v. Means, 363 N.W.2d 565, 569 (S.D.1985)); and Washington (State v. Gomez,75 Wash.App. 648, 880 P.2d 65, 69–70 (Wash.Ct.App.1994)).

Four jurisdictions have gone as far as creating a per se rule confining impeachment to the mere fact of conviction and prohibiting the admissibility of any details about a prior conviction: Kentucky (Sebastian v. Commonwealth, 436 S.W.2d 66, 69 (Ky.1968)); Nebraska (State v. Olsan, 231 Neb.214, 436 N.W.2d 128, 136 (Neb.1989)); Wisconsin (Voith v. Buser, 83 Wis.2d 540, 266 N.W.2d 304, 306–07 (Wis.1978)); and Virginia (Harmon v. Commonwealth, 212 Va.442, 185 S.E.2d 48, 51 (Va.1971)).

Conversely, only

six jurisdictions prohibit impeachment by unspecified felony convictions: the Second Circuit (United States v. Estrada, 430 F.3d 606, 614–16 (2d Cir.2005); Illinois (People v. Cox, 195 Ill.2d 378, 254 Ill.Dec.720, 748 N.E.2d 166, 171 (Ill.2001)); Tennessee (State v. Galmore, 994 S.W.2d 120, 122 (Tenn.1999)); Maryland (Bells v. State, 134 Md.App. 299, 759 A.2d 1149, 1155 (Md.Ct.Spec.App.2000)); Michigan (People v. Van Dorsten, 409 Mich.942, 298 N.W.2d 421, 421 (Mich.1980)); and Utah (State v. Crawford, 60 Utah 6, 206 P. 717, 719 (Utah 1922)).

-CM

Emergency Urgent: District Of Oregon Seemingly Errs In Deeming Testimony Concerning E-Mails Beyond Scope of Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

So, let's say that a party wants to introduce testimony concerning e-mails but does not produce those e-mails. Can the party get around the Best Evidence Rule by claiming that it is not proving the contents of those e-mails and is instead merely proving the witness' opinions/impressions of the content of the e-mails? According to the recent opinion of the United States District Court for the District of Oregon in HTI Holdings, Inc. v. Hartford Cas. Ins. Co., 2011 WL 3704821 (D.Or. 2011), the answer is "yes." I disagree.

In HTI Holdings, 

Defendant Hartford Insurance Company insured plaintiff HTI Holdings, Inc. During the coverage period, HTI suffered a loss and made a claim. After disagreement about the manner in which the claim was handled, HTI filed this action alleging breach of contract, negligence, breach of the implied covenant of good faith and fair dealing and tortious interference with prospective economic advantage claims. Hartford brought counterclaims for declaratory judgment and breach of contract.

Specifically, HTI manufactures water purification products which utilize a patented “forward osmosis” system, and

In early 2007, HTI sent a letter to its shareholders reporting a net loss for 2006 and that short term borrowing exceeded cash and receivables. The letter reported that the company was in trouble due to the National Guard's decision not to order its products, but the company expected to generate between five and seven million dollars in revenue in 2007 due to pushes into the military, disaster relief, and retail markets. About a month later, on March 17, 2007, a fire at HTI's manufacturing plant completely destroyed its production equipment. HTI made a claim for the loss.

While Hartford paid HTI $621,000 for personal business property losses and $150,000 in business interruption proceeds, HTI claimed that the payment for business interruption proceeds was too low while Hartford countered that HTI was in worse financial shape than it claimed.

This led to the aforementioned deposition testimony concerning e-mails. Here is what Robert Salter, the former Chairman and Chief Executive Officer of HTI, said about e-mails in his declaration:

Similarly, Hartford also misrepresented facts that it had discovered during its "investigation" of our business interruption claim. For example, I was one of several participants in a conference call in which Hartford's accountants interviewed the General Manager of one of our primary customers. The General Manager unequivocally stated that she anticipated that her company would have purchased 98,000 water filtration devices from us during the first year of our contract if the fire had not destroyed our plant. Despite contemporaneous emails confirming her anticipated purchase of 98,000 units, Hartford's accountants denied that the General Manager ever made any such statement. Hartford's refusal to acknowledge this projected purchase resulted in a reduction of more than $1 million in business interruption proceeds owed to HTI.

Now, I don't have the deposition testimony from Salter or Linda Lemer, who worked for HTI's vendor, but here is what the District of Oregon had to say about their testimony in response to HTI's Best Evidence objection:

HTI seeks to strike exhibit K (Lemer's deposition) and pages 162–168 of exhibit P (Robert Salter's deposition) on the grounds that the cited testimony in each violates FRE 1002, the "best evidence" rule. A review of the exhibits reveals that although both deponents are generally testifying about emails, they are not attempting to recount the content of the documents in their testimony. Instead, each discusses their opinions/impressions of the content of the emails. For example, Salter states that he does not recall other discussions, aside from those in an email, with public adjusters and whether there is a sense of urgency communicated in various emails. The best evidence rule does not preclude these exhibits.

Now, it is difficult to tell from the court's opinion the exact nature of the deposition testimony by Salter and Lemer concerning the e-mails. Presumably, though, this testimony dealt with the proposed purchase and the interactions between Salter/HTI and public adjusters. And Salter apparently testified concerning the content of those e-mails, the fact that those e-mails were the only communications with public adjusters, and his opinion on whether those e-mails conveyed a sense of urgency. In other words, Salter (and presumably Lemer) were trying to convey not only what the e-mails said, but what they interpreted as the tone of those e-mails.

The way I see it, such testimony violated the Best Evidence Rule even more than classic testimony about the content of a document such as an e-mail. The whole point of the Best Evidence Rule is that a witness might be lying and/or mistaken about the content of a writing, which is why a party trying to prove the content of that writing must produce the original writing or account for its nonproduction. When a witness, however, goes beyond the content of a writing and tries to convey the tone of that writing (whether the e-mail conveyed a sense of urgency), the possibility of a mistake greatly increases. Thus, I can't agree with the District of Oregon that there was no Best Evidence Rule violation.

-CM

Can You Hear Me?: Court Of Appeals Of Texas Finds Failure To Hold In Camera Rape Shield Hearing Isn't Reversible Error

Similar to its federal counterpart, Texas Rule of Evidence 412(c) provides that if a criminal defendant is trying to present evidence under an exception to the rape shield rule,

the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible....The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.

So, let's say that the defendant informs the court of his intention to present evidence under an exception to the rape shield rule. And let's say that the court hears arguments from both sides before deeming the evidence inadmissible but does not hold an in camera hearing. Is this evidentiary error that could form the basis for a new trial? Or is the requirement of an in camera hearing a requirement put in place to protect the alleged victim, meaning that the failure to hold one should not lead to reversal? For the answer, let's look at the recent opinion of the Court of Appeals of Texas, Houston, in Nevelow v. State, 2011 WL 2899377 (Tex.App.-Houston [14 Dist. 2011]).

In Nevelow, Phillip Andrew Nevelow was charged with sexual assault of a child. Before trial, Nevelow notified the court of his intention to introduce evidence of the alleged victim's other sexual behavior, and the court subsequently granted the State's oral motion in limine, which sought to exclude evidence of  "any prior sexual history of the victim." At trial, before the alleged victim testified, the court re-visited the issue and, after hearing arguments from both sides, upheld its prior ruling. Defense counsel argued that evidence of the alleged victim's other sexual behavior was admissible based upon the belief that she was using the allegations against Nevelow "to hide who it is that she is actually having sexual relationships with," but the court found that the evidence was lacking in relevance/probative value.

After he was convicted, Nevelow appealed, claiming, inter alia, that the trial court committed reversible error by failing to hold an in camera hearing to determine the admissibility of evidence of the alleged victim's other sexual behavior. In addressing this issue, the Court of Appeals of Texas, Houston, held that

The Court of Criminal Appeals has held that abatement is the proper remedy when a trial court's failure to conduct an in camera hearing prevents the proper presentation of a rule 412 issue to the appellate court. See LaPointe v. State, 255 S.W.3d 513, 520-21 (Tex.Crim.App. 2007)....However, in another case, the court held that a trial court's failure to conduct a hearing was not material because the record was sufficient to support appellate review of the rule 412 issue. See Young v. State, 547 S.W.2d 23, 25 (Tex.Crim.App. 1977).

Although we conclude the trial court erred by failing to conduct an in camera hearing, we determine the record is sufficient for resolution appellant's rule 412 issue. Specifically, appellant explained to the trial court several times why the excluded evidence was necessary, made an offer of proof, and attached an affidavit to his motion for new trial in which he averred that the complainant had told him she was sexually active with other individuals. Because we firmly understand the basis for appellant's presentation of the excluded evidence, we dispose of his rule 412 complaint without a record of an in camera hearing.

I agree with the court's conclusion, but I'm kind of disturbed by its (lack of) reasoning. The court listed two cases which ostensibly were on point and reached opposite conclusions and then reached a conclusion without addressing the (de)merits of each case. By looking at these 2 cases, though, we can see that there wasn't actually a conflict.

Despite what the court said, the problem in LaPointe was not that the trial court failed to hold an in camera hearing; instead, the problem was that the court did hold an in camerahearing but excluded the defendant and his attorney from that hearing. The court thus abated the defendant's appeal and remanded so that an adversarial proceeding could be held based upon its conclusion "that the in camera proceeding contemplated by Rule 412 is an adversarial hearing at which the parties are present and the attorneys are permitted to question witnesses." On the other hand, Young was what the court said it was: The court didn't hold an adversarial hearing, but it did hear arguments from the defendant and allowed him, "through a bill of exception, to preserve error on" the admissibility of evidence of other sexual behavior of the victim.

Therefore, there was no conflict between LaPointe and Young, and the court did not need to explain why it was choosing one opinion over the other in reaching its conclusion. And, as I noted above, I think that the court's conclusion was correct.

Although the court could have been clearer, I think implicit in its analysis is the following dichotomy. Rule 412(c) is partially intended to protect the alleged victim. The requirement of an in camera hearing is designed to protect the alleged victim from harassment and an invasion of privacy. On the other hand, Rule 412(c) is partially designed to protect the defendant. The requirement that the hearing be recorded by the court reporter is designed to ensure that the record is sufficient for appellate review of the rape shield ruling. Thus, when an in camera hearing is not held, but the defendant is allowed to make arguments regarding admissibility and the record is sufficient for appellate review, as in Nevelow, there are not grounds for abatement/reversal.

-CM

 

Tattoo You: Court Of Appeals Of Texas, Dallas, Finds Evidence Of Defendant's "187" Tattoo Admissible

Like its federal counterpart, Texas Rule of Evidence 403 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, or needless presentation of cumulative evidence.

So, let's say that a defendant is charged with murder and claims that he acted in self-defense. And let's say that after the killing the defendant gets "187" tattooed on his hand. Should the prosecution be able to present evidence of this tattoo at trial? According to the recent opinion of the Court of Appeals of Texas, Dallas, in Salazar v. State, 2011 WL 3770297 (Tex.App.-Dallas 2011), the answer is "yes."

In Salazar, the facts were as stated above, with the prosecution presenting evidence that the defendant had "187" tattooed on his right hand. Moreover, at trial,

Dallas police officer Germaine Walls testified he saw appellant at the police station on the night of the shooting, and appellant did not have "187" tattooed on his hand at that time. Walls testified that, based on his training and experience, "187" represents the California penal code section for murder, and a person puts such a tattoo on his body to proclaim that he has committed murder. Additionally, Walls testified "it's been used in quite a few rap songs to advertise the fact that they have committed murder." At trial, appellant objected to this testimony and argued there was no dispute appellant killed someone and that the tattoo was more prejudicial than probative. The prosecutor argued the "187" tattoo, clearly visible on appellant's hand, was admissible as an admission by a party opponent. Further, the prosecutor argued the tattoo showed appellant's state of mind and disproved his theory of self-defense because he was proud of the murder. The trial court overruled appellant's objection.

After he was convicted, the defendant appealed, claiming, inter alia, that evidence of his tattoo was inadmissible hearsay and should have been excluded under Texas Rule of Evidence 403. The Court of Appeals of Texas, Dallas, disagreed, concluding that

The record shows appellant did not have a "187" tattoo on the night of the shooting, and the tattoo was placed on him after he was in jail in connection with the underlying murder charge. The fact that appellant got a tattoo marking him as a murderer goes to show his state of mind at the time of the shooting and clarifies the circumstances surrounding the shooting. It is also clear from the placement of this tattoo on his hand that it was an open and obvious statement that he wanted everyone to see. This evidence directly contradicts appellant's defensive theory that he acted in self defense and was not likely to impress the jury in some irrational but nevertheless indelible way....We conclude the trial court did not abuse its discretion in admitting evidence of the "187" tattoo as a statement that appellant committed murder. See TEX.R.EVID. 801(e)(2)(A).

I agree that there was no abuse of discretion, but I disagree with the court's hearsay analysis. Texas Rule of Evidence 801(e)(2)(A) provides that "[a] statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement in either an individual or representative capacity...." So, if the defendant tattooed himself, the tattoo could have qualified as a party-admission under Rule 801(e)(2)(A), but I'm guessing that someone else tattooed him. And, if that was the case, if the tattoo were an admission, it could not have been a party-admission under Rule 801(e)(2)(A) and could only have been an adoptive admission under Texas Rule of Evidence 801(e)(2)(B) (Of course, it also could have been admitted under Texas Rule of Evidence 803(3), the state of mind exception to the rule against hearsay).

-CM