Saturday, September 10, 2011
Keep On Truckin': Central District Of Illinois Allows Testimony About Destroyed Log Books Under Rule 1004(1)
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.
That said, Federal Rule of Evidence 1004(1) provides that
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if--
(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith....
So, let's say that an individual driving a minivan is injured in a car crash with a semi truck and trailer. And let's say that the minivan driver later pleads guilty to driving under the influence. Finally, let's say that the driver of the semi truck and trailer keeps log books but that neither he nor his employer are under any obligation to preserve the log books for more than six months. Of the log books are destroyed after the individual pleads guilty to DUI and before she sues the truck driver and his employer for negligence, should the court find that the log books were destroyed in bad faith? According to the recent opinion of the United States District Court for the Central District of Illinois in Campbell v. RAP Trucking Inc., 2011 WL 3924157 (C.D.Ill. 2011), the answer is "no."
Friday, September 9, 2011
In my last entry, Post-Bryant Case Law Confirms Scalia’s Fears, I discussed the ease in which the primary purpose test can be manipulated to reach desired outcomes. This post addresses the test’s inability to determine the testimonial or non-testimonial nature of interrogations involving multiple concurrent purposes.
The inability of the primary purpose test to account for multiple concurrent purposes was one source of contention in Bryant. In that case, the majority rightly noted that police and victims of violent crime often act with more than one purpose. See Michigan v. Bryant, 131 S.Ct. 1143, 1161 (2011). Moreover, it would be rare for a person involved in such a volatile situation to announce his intent before speaking. Thus, a test that asks a court to divine the “primary purpose” of a hypothetical similarly-situated individual from among potentially several unstated purposes is nothing but “an exercise in fiction.” Id. at 1167 (Thomas, J., concurring).
Despite the difficulties inherent in determining an individual’s “primary purpose,” the Bryant majority confidently concluded that the responding officers’ sole purpose was to assess the alleged “ongoing emergency” that existed at the time, despite no direct evidence of that intent. See id. at 1165-66. But this is just part of the analysis, as Bryant also requires courts to consider the declarant’s purpose, which promises to compound the analytical difficulty. See id. at 1170 (Scalia, J., dissenting) (“Now courts will have to sort through two sets of [potentially] mixed motives to determine the primary purpose of an interrogation;” moreover, “[Bryant] creates a mixed-motive problem . . . where the police and the declarant each have one motive, but those motives conflict.”).
By analogy, courts considering forfeiture-by-wrongdoing arguments have recognized that people often commit acts with multiple motives. For example, in United States v. Martinez, the United States Court of Appeal for the District of Columbia rejected the defendant’s claim that a would-be witness was killed in retaliation for his involvement with the police, rather than to prevent his future trial testimony. 476 F.3d 961 (D.C. Cir. 2007). According to the court, defendant’s “argument is based on a false either-or dichotomy,” as “intending both to exact revenge and to prevent the informant from disclosing further information and testifying” are purposes that “often go hand-in-glove.” Id. at 966. See also State v. Alvarez-Lopez, 98 P.3d 699, 704-05 (N.M. 2004) (“The State ‘need not . . . show that [defendant’s] sole motivation was to procure the declarant’s absence; rather, it need only show that the defendant ‘was motivated in part by a desire to silence the witness.’”); United States v. Dhinsa, 243 F.3d 635, 654 (2d Cir. 2001) (same); Vasquez v. People, 173 P.3d 1099, 1104-05 (Colo. 2007) (en banc) (same).
As in the forfeiture-by-wrongdoing cases, lower courts applying the primary purpose test have recognized the possibility of multiple concurrent purposes. An Oregon case, State v. S.P., 215 P.3d 847 (Ore. 2009) (en banc), is particularly instructive.
In S.P., the Oregon Supreme Court examined hearsay statements of a three year-old sexual abuse victim, N, made to staff members at a local “Child Abuse and Response Service” (“CARES”). The CARES evaluation team consisted of a pediatrician, a social worker, two Department of Human Services workers, and a Sheriff’s Deputy. As the Deputy observed the evaluation through a one-way mirror, a social worker elicited information from N that implicated defendant Youth in various crimes.
At Youth’s trial, the juvenile court ruled that most of N’s statements were non-testimonial, thus admissible in the absence of confrontation. Id. at 850. The Court of Appeals reversed, and declared N’s statements testimonial. State v. S.P., 178 P.3d 318 (Ore. Ct. App. 2008). According to the intermediate appeals court, the CARES interview served two “primary” purposes: to obtain information for a medical diagnosis and to preserve evidence for prosecution. Id. at 329-330.
Like the lower court, the en banc Oregon Supreme Court viewed the case as one involving the “concurrent and coequal” primary purposes of medical diagnosis and preservation of criminal evidence. S.P., 215 P.3d at 864. As a result, the court resolved the case by examining “whether the declarant’s statements were the equivalent of ‘testimony.’” Id. Examining “all the circumstances,” including “the knowledge and intentions of all persons involved in the interrogation,” id. at 865 (a standard arguably consistent with Bryant), the court reasoned that “N made his statements in a formal setting, in response to structured questions about past events with potential serious consequences for [Y]outh.” Id. at 864. According to the court, “witnesses do go into court to describe past sexual misconduct, and that is exactly what N did at CARES.” Id. Thus, “[f]rom a functional standpoint, N’s examination was similar to the ex parte examinations condemned in Crawford,” in that “N acted as a witness; he bore testimony against [Y]outh.” Id.
Cases involving multiple concurrent purposes raise several important and unresolved issues, including (1) whether more than one “primary” purpose is possible under the Bryant test; (2) if not, how to determine whether a forensic or medical diagnosis purpose is the “primary” one; and (3) more broadly, how to resolve interrogations conducted by non-police actors. See Bryant, 131 S.Ct. at 1155 n.3 (“Davis explicitly reserved the question of ‘whether and when statements made to someone other than law enforcement personnel are ‘testimonial’ We have no need to decide that question in this case either . . . .”). These are each significant issues that are already creating splits among the courts.
Marc C. McAllister
Thursday, September 8, 2011
Texas 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
So, let's say that a trial involves the question of whether a defendant breached a fiduciary duty. And let's say that jurors use dictionaries to look up the terms "fiduciary" and fiduciary duty." Jurors can testify about these acts consistent with Rule 606(b), but does this jury misconduct warrant a new trial? According to the recent opinion of the Court of Appeals of Texas, Dallas, in Holland v. Lovelace, 2011 WL 3805519 (Tex.App-Dallas 2011), the answer is "no."
Wednesday, September 7, 2011
A Taxing Matter, Take 2: 11th Circuit Affirms District Court's Ruling Denying Wesley Snipes' Motion For A New Trial
Yesterday, the Eleventh Circuit decided United States v. Snipes, 2011 WL 3890354 (11th Cir. 2011). In the opinion, the court affirmed the opinion of the United States District Court for the Middle District of Florida, which had denied actor Wesley Snipes' motion for a new trial and his related motions for leave to interview jurors. Snipes filed these motions after he was convicted of three counts of willfully failing to file tax returns. In this post, I will explain why I think that the Eleventh Circuit got it wrong.
Tuesday, September 6, 2011
Fried Shrimp: 11th Circuit Finds No Problem With Lay Testimony On Standard Practices Of Truck Drivers
Federal Rule of Evidence 701 provides that
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
So, let's say that a truck driver and several other defendants are charged with stealing two containers of frozen shrimp from a shipping container yard. And let's say that the prosecution has several lay witnesses testify concerning the standard practice of truck drivers. Is this proper lay testimony? According to the recent opinion of the Eleventh Circuit in United States v. Collado, 2011 WL 3821997 (11th CIr. 2011), the answer is "yes."
Monday, September 5, 2011
In General, Take 2: ND Iowa Allows For Admission Of Expert Testimony About Device Not "Generally Accepted" By Lawnmower Manufacturers
In yesterday's post, I noted the courts in a decent number of cases have allowed for the admission of expert evidence under the Daubert test despite the test/methodology underlying the evidence not having general acceptance in the relevant expert community. This usually happens in cases where the test/methodology is novel and has not yet had a chance to gain general acceptance. That left the question of whether a court has ever allowed for the admission of expert evidence under the Daubert test despite the test/methodology underlying the evidence being rejected by the relevant expert community. Well, the recent opinion of the United States District Court for the Northern District of Iowa in Estate of Bruess ex rel. Bruess v. Blount Intern., Inc., 2011 WL 2680760 (N.D. Iowa 2011), kind of fits that description, but it also kind of doesn't.
The Sixth Amendment’s Confrontation Clause has undergone significant change in the past seven years, particularly as it relates to hearsay statements made in response to police interrogation or its functional equivalent. Prior to Crawford v. Washington, 541 U.S. 36 (2004), the rule of Ohio v. Roberts allowed such statements to be admitted upon a mere showing of reliability. The amorphous nature of the Roberts rule eventually led to its demise; under Roberts, courts frequently attached different meanings to the same reliability factor, and often reached opposite outcomes on virtually identical facts.
In overruling Roberts, Crawford’s stated goals were to curtail judicial discretion and to prevent testimonial evidence from reaching the factfinder without the benefit of adversarial testing. See Crawford, 541 U.S. at 67-68 & 54. Just seven years later, the Court’s more recent rulings in this area, most notably Michigan v. Bryant, 131 S.Ct. 1143 (2011), have revived those very deficiencies. Reminiscent of Roberts, Bryant notes more than ten factors to distinguish “testimonial” from “non-testimonial” statements. Bryant further instructs courts to consider “all relevant information” and to decide each case “in context,” a classic totality-of-circumstances approach bearing striking similarities to the Roberts framework.
Justice Scalia, the author of Crawford, was one of only two dissenters in Bryant. Justice Scalia’s dissent bemoaned the opinion’s overall influence on Confrontation Clause jurisprudence, and particularly noted the ease in which the majority’s standards can be manipulated to reach desired outcomes. See Bryant, 131 S.Ct. at 1170 (Scalia, J., dissenting).
Bryant was decided on February 28, 2011, so there is now more than six months of lower court case law applying Bryant. A comparison of recent cases confirms Justice Scalia’s fears. For example, post-Bryant cases have drawn opposite inferences from the same Bryant factor: the declarant’s dire medical condition. In addition, one post-Bryant case, People v. Clay, 2011 WL 2570701 (N.Y.A.D. 2 Dept. June 28, 2011), distinguished Bryant based upon the precise wording of the questions asked, yet the two factual scenarios were nearly identical in all other respects.
In both Bryant and Clay, police responded to the call of a man having recently been shot. In both cases, police discovered the man in dire medical condition, mortally wounded and lying on the ground. In both cases, the shooting victim died shortly after speaking with the police. Yet, the Clay court distinguished Bryant based upon the nature of the questions asked, ignoring most other factors set forth in Bryant. For example, the Clay court downplayed the informality of the encounter by relegating it to a footnote, a factor the Bryant Court found significant. See id. at *10 n.1. In its attempt to divine the primary purpose of the interrogation, the Clay court reasoned that the officer’s inquiry, “Who shot you? I don’t think you are going to make it. Who shot you?” was more akin to “Tell us who did this to you so that we can arrest and prosecute them,” the testimonial example noted in Bryant, than to a general inquiry beginning with “what happened?” Accordingly, the Clay victim’s response was deemed “purely accusatory,” hence testimonial. Id. at *7.
Clay illustrates how slight changes in an interrogator’s wording can change the Sixth Amendment outcome. Presumably, had the officer simply asked the declarant “a general battery of questions” (even including questions aimed at discovering the identity of the assailant, as in Bryant), the declarant’s response would become magically non-testimonial. Uttering questions such as “what happened?” rather than “who shot you?,” or posing questions about the identity of one’s assailant within “a general battery of questions,” is an incredibly easy distinction for interrogating officers to manipulate. It also makes the Constitution turn on trivialities. Notably, the Clay court had the benefit of a dying declarations argument that had been preserved on appeal. Thus, the Clay court, unlike the Bryant Court, did not need to stretch the concept of “ongoing emergency” to reach the same overall outcome.
Other courts analyzing interrogations nearly identical to Clay have reached the opposite outcome. For example, in State v. Calhoun, 657 S.E.2d 424 (N.C. Ct. App. 2008), a pre-Bryant case, the court deemed non-testimonial the statements of a shooting victim identifying his assailant. As in Clay, the declarant in Calhoun, who was found motionless after having been shot, was asked just one question: who shot him. In response, the declarant stated it was “Chico” and “Worm.” The victim was then asked to squeeze the interrogator’s hand to confirm that “Chico” and “Worm” were the shooters, and the declarant did so. This was the extent of the interrogation. However, in contrast to Clay, the court deemed the declarant’s statements non-testimonial. The Clay court would presumably disagree, as the officer’s sole question in Clay, “who shot you,” was nearly identical to the sole question posed in Calhoun.
Another recent case, Graure v. United States, 18 A.3d 743 (D.C. Ct. App. 2011), further illustrates the malleability of the Bryant test. In that case, defendant Vasile Graure was prosecuted for having set fire to a strip club. Club employee Djordjevic, the eventual out-of-court declarant, confronted Graure as he entered the club carrying gasoline and a lighter. As the two struggled, Graure was able to pour and ignite the gasoline, and Djordjevic was “completely covered in flames.”
Minutes later, club manager Kathleen Lazorchack saw Djordjevic emerge from the building. According to Lazorchack, Djordjevic was “[c]harred from  head to toe.” Indicating a concern for his own welfare, rather than some hypothetical desire to address an ongoing emergency, Djordjevic told Lazorchack not to touch him. At this point, Lazorchack asked, “how did this happen?” Id. at 752.
Djordjevic responded, “I saw that man coming back with a can and I tried to stop him.” Another club employee, Talebnejad, then asked Djordjevic, “what happened?” Djordjevic explained that “the guy” came back to the club and tried to burn it, and that Djordjevic had tried to stop him. Id. at 751-52. Witnesses later described Djordjevic as “very frantic” and “in shock.” Id. at 755.
Djordjevic was still in the hospital at the time of Graure’s trial, and the trial court introduced the statements Djordjevic made after exiting the club. The United States Court of Appeals for the District of Columbia affirmed. Id. at 755. After noting three Bryant factors – the weapon employed, the victim’s medical condition, and the informality of the situation – the court stated that “all of the factors . . . identified in Bryant support a conclusion that [the] statements were not testimonial.” Id. at 757 (emphasis added). According to the court, “[w]hat had injured the visibly burned Djordjevic was fire, a weapon that could have continued to pose a threat to those in or near the club.” Moreover, “the situation did not involve formal or structured questioning.” Finally, “Djordjevic’s medical condition obviously was grave, making it likely that [the] questions [asked] would not have ‘focused him on the possible future prosecutorial use of his statements.’” Id. at 757-58.
While Graure’s ruling is plausible, the declarant, Djordjevic, likely had no purpose whatsoever in answering the simple questions posed by his superiors. Djordjevic was “in shock” at the time and seemed to be focused on caring for his wounds rather than the danger posed by the defendant. Indeed, it seems that Djordjevic, who acted bravely in attempting to stop the defendant from entering the club, had by this time shifted his focus away from the defendant and toward his own wounds, as would be expected under these circumstances.
One could also question whether Djordjevic’s interrogator’s had any purpose other than to simply understand what had happened. Talebnejad had gone home to his apartment about ten minutes after Graure was kicked out of the club, and returned to the club after he received a call about the fire. Id. at 752 n.7. Moreover, Talebnejad testified that he asked Djordjevic “what happened” simply because he “just wanted to know what happened.” Id. at 758 n.18. It would be natural for Talebnejad, a manager at the club who did not witness the event, to simply wish to know what had occurred. Like a commuter who drives past the scene of an accident, the simple desire to understand what had caused the accident is neither a purpose directed toward future prosecution nor one intended to address an “ongoing emergency.”
Bryant, Clay, and Graure each involve statements made by a crime victim within minutes of the criminal event. The victim’s statements in each case were made in direct response to preliminary investigative questions. In all three cases, the court speculated as to the likely purpose of a reasonable victim in the circumstances of the actual victim. In all three cases, it is possible that a similarly-situated declarant would envision prosecution, would be motivated by ending the threat from the assailant, would have multiple motivations, or even no motivation at all. Various scenarios are also possible for the interrogators in each case.
In seeking to uncover which of the above purposes was the primary one, the Bryant Court believed “[t]he questions the [officers] asked – ‘what had happened, who had shot him, and where the shooting occurred,’ – were the exact type of questions necessary to allow the police to ‘assess the [emergency] situation.” Id. at 1165-66. Clay distinguished Bryant despite strong similarities in the overall factual scenarios, reasoning that the officer’s “evident reason” for asking “who shot you” was to give the declarant “his final opportunity to bear witness against his assailants.” 2011 WL 2570701 at *7. Faced with the same type of generalized questions deemed significant in Bryant and highlighted in Clay, the Graure court could have invoked this factor to support its ruling, but it did not. Rather, the Graure court emphasized only three of the Bryant factors, ignoring several others, yet stating that “all of the factors . . . identified in Bryant support a conclusion that Djordjevic’s statements were not testimonial.” Graure, 18 A.3d at 757. This analytical method, where any and all factors might be relevant in any given case, permits a court to reach whatever result it desires.
Judicial manipulation of the Bryant framework is further illustrated by comparing how Bryant, Clay, and Graure treated the dire medical condition of the declarant. On this factor, the Bryant majority believed that “a person in Covington’s situation would [not] have had a ‘primary purpose’ ‘to establish or prove past events potentially relevant to later criminal prosecution.’” Bryant, 131 S.Ct. at 1165. The Graure court agreed, reasoning that the declarant’s “medical condition obviously was grave, making it likely that [the] questions [asked] would not have ‘focused him on the possible future prosecutorial use of his statements.’” Graure, 18 A.3d at 758. The Clay court drew the opposite inference from nearly identical facts. According to Clay, when a declarant’s medical condition is grave, the declarant might instead believe that the situation presents “his final opportunity to bear witness against his assailants.” Clay, 2011 WL 2570701 at *7. Justice Scalia advanced a similar argument in his Bryant dissent, see Bryant, 131 S.Ct. at 1171 (Scalia, J., dissenting). Either inference seems reasonable.
In my view, a test that hinges upon the hidden and empirically unknowable “primary” purposes of hypothetical similarly-situated declarants and interrogators, and one which takes all relevant factors into account in making that determination, is no better than one that requires a judge to determine a statement’s “reliability.” While I am not sure of the most appropriate solution at this time, the natural thought would be to replace Bryant’s multi-factor test with a simpler test, one that would not require courts to examine the potentially mixed motives of declarant and interrogator. I have written an article proposing a bright-line rule to replace Bryant’s factors test. You can download the full article here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1921606
Marc C. McAllister
Associate Professor of Law, Florida Coastal School of Law
Sunday, September 4, 2011
An e-mail on the Evidence Law Professor listserv raises an interesting question. Before 1993, federal courts applied the Frye test to determine whether expert evidence should be admitted. This standard focused solely upon whether the proffered expert evidence was sufficiently established to have general acceptance in the field to which it belonged. In 1993, however, the Supreme Court decided Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), in which it concluded that the Frye test was superceded by the adoption of the Federal Rule of Evidence. In Daubert, the Court replaced the Frye test with the Daubert test, pursuant to which courts determining whether to admit expert evidence may consider several factors, including:
A main goal behind creation of the Daubert test was to exclude "junk" science from the courtroom that might have general acceptance in a relevant "expert" community but lack reliability.
This takes me to the question on the listserv, which was whether a court has ever found that expert evidence that did not have general acceptance within the relevant expert community still satisfied the Daubert test. I think the general consensus is that the answer is "yes" for novel evidence/methodologies that have not yet been sufficiently tested but probably "no" for evidence/methodologies that have already been sufficiently tested and rejected by the relevant expert community. If readers have any examples to the contrary, please feel free to e-mail me or leave them in the comments. In this post, I will highlight the case that I used to show the former point to my Evidence students.