EvidenceProf Blog

Wait For The DVD: Court Of Appeals Of Arkansas Finds Drug Sale DVDs Properly Authenticated

Like its federal counterpart, Arkansas Rule of Evidence 901(b)(1) provides that a party can authenticate evidence through the "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." And, like its federal counterpart, Arkansas Rule of Evidence 901(b)(9) provides that a party can authenticate evidence through "[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result." And, as the recent opinion of the Court of Appeals of Arkansas in Williams v. State, 2011 WL 4067412 (Ark.App. 2011), makes clear, if the prosecution seeks to introduce DVDs containing video recordings of a defendant selling drugs to a confidential informant, it can authenticate the DVDs by satisfying both rules.

In Williams, Jimmy Lee Williams was charged with two counts of delivery of a controlled substance (marijuana), two counts of delivery of a controlled substance (cocaine), possession of drug paraphernalia, and possession of marijuana. At trial, the prosecution tried to introduce DVDs containing hidden-camera video recordings of Williams selling drugs to a confidential informant on four occasions. The trial court initially deemed these DVDs inadmissible because the prosecution failed to lay a proper foundation.

The prosecution then recalled Cameron Owens, the officer who made the DVDs from the hidden-camera recordings and who testified in part as follows:

WITNESS: Yesterday we talked about my video recordings on the undercover recorder. There was a video made on the undercover recorder. After I stop the recorder, and I've—It's a little digital recorder, a computer generated video file, there's a, it's on a card inside that recorder. I take it to the computer and by a USB cable I download that file onto the hard drive of the computer which makes an exact copy of that file. And then at that time I make another digital, exact digital copy and I put it on the disk. Those are the disks that I have in front of me. The disk from January 5 is the disk that I reviewed with the informant.

Thereafter, "both Officer Owens and the confidential informant testified that the recordings on the DVDs were true and accurate depictions of what transpired during the drug transactions with appellant." Ultimately, the trial court allowed the prosecution to admit the DVDs, and WIlliams was convicted.

Williams thereafter appealed, claiming that the prosecution failed to properly authenticate the DVDs. The Court of Appeals of Arkansas disagreed, concluding that the

Appellant's argument is without merit because the State offered testimony from two witnesses with knowledge of the DVDs and transactions, as well as testimony describing the process used to create the DVDs. Officer Owens and the informant testified that they did not tamper with the camera or recordings, that they reviewed each DVD, and that the DVDs were fair and accurate depictions of what transpired during the drug buys. See Ark. R. Evid. 901(b)(1). Moreover, Officer Owens identified the DVDs in court as the ones that he had specifically made from the recordings. He testified about the process of placing the recordings on the DVDs. His testimony was sufficient to authenticate the DVDs and establish that they were accurate copies of the recordings of appellant's drug transactions. See Ark. R. Evid. 901(b)(9). Further, Officer Owens testified that he reviewed the videos with the informant, and the informant testified that he reviewed the DVDs that were before the court. Because Rule 901(b)(1) and (9) were satisfied, the trial court did not abuse its discretion in admitting the evidence.

-CM

Source Code: 1st Circuit Finds Plaintiff Couldn't Satisfy Best Evidence Rule In Aircraft Tracking Software Appeal

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.

Federal Rule of Evidence 1004, however, provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if [one of four situations apply]....

If however, a party seeks to prove the content of a writing and cannot satisfy one of the Rule 1004 factors (or produce a duplicate), it will be unsuccessful as was the case in the recent opinion of the First Circuit in Airframe Systems, Inc. v. L-3 Communications Corp., 2011 WL 4058676 (1st Cir. 2011).

In Airframe Systems,

In 1979, Airframe began developing proprietary aircraft maintenance tracking software known as the Airline Resource Management System ("ARMS"). Since that time, Airframe has continually modified and expanded the source code of its ARMS software to create updated versions of the program. "Source code" is the original version of a computer program that is written in human-readable words and symbols. Source code must be compiled into machine-readable "object code" before a computer can read and execute the software. A program in source code format can be modified by a computer programmer, whereas a program in object code format cannot be easily modified.

In July 2003, Airframe registered and deposited with the United States Copyright Office copies of four versions of its ARMS source code....

Airframe later brought a copyright infringement action against L-3, alleging that L-3 copied the ARMS source code to create a replacement aircraft maintenance program titled "M3." In support of its action, Airframe submitted the declaration of its President, Gordon S. Rosen, who compared the ARMS source code with M3. L-3 thereafter moved for summary judgment claiming that the declaration

was insufficient because the ARMS source code version which Rosen compared to the M3 program—and which was the only version that Airframe produced during discovery—was an updated version of the ARMS program created in 2009. L–3 contended that the updated 2009 version of the ARMS source code was not registered and was insufficient to establish the content of the prior source code versions covered by Airframe's copyright registrations (including the 1981 IBM version, the 1984 PC version, the 1988 UNIX version, and the 2003 version). As such, L–3 argued, Airframe could not prove there was "substantial similarity" between the M3 source code and the registered source code that was allegedly infringed.

The district court agreed and granted L-3's motion for summary judgment. The First Circuit later agreed, finding that the case before it was similar to Bridgmon v. Array Sys. Corp., 325 F.3d 572 (5th Cir. 2003), in which the Fifth Circuit found that the plaintiff could not present a reconstruction of its source code consistent with the Best Evidence Rule. The First Circuit found that the same reasoning applied in Airframe Systems because Airframe did not satisfy Federal Rule of Evidence 1004; instead, "Airframe....made no effort to satisfy the requirements of the Best Evidence Rule here."

-CM

Judicial Notice: 5th Circuit Finds Failure To Disclose FBI Interview Not A Brady Violation In Judicial Sexual Favor Appeal

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. That said, the Fifth Circuit has determined that evidence turned over to the defense during trial has not been "suppressed" within the meaning of Brady so long as "the evidence is received in time for its effective use at trial." And that was a problem for the defendant in United States v. Barraza, 2011 WL 3925675 (5th Cir. 2011).

In Barraza, 

Manuel Barraza was a state court judge and former criminal defense attorney in El Paso, Texas. A jury found Barraza guilty of two counts of wire fraud and one count of making false statements, stemming from Barraza's use of his position as a state judge to obtain money and sexual favors in exchange for assisting a criminal defendant.

The case against Barazza centered

on promises Barraza made to a former client, Diana Rivas Valencia, who was facing drug charges in El Paso. Rivas was arrested in September 2008, and in December, Rivas conveyed to a friend that she was unhappy with her current attorney and wished to speak with Barraza. Later that day, Barraza went to the jail to visit Rivas. At the time, Barraza had won election to the state bench but had not yet been sworn in. Rivas testified that Barraza promised to help her "get rid of the charges" once he assumed office as a state judge. In exchange, Barraza indicated he wanted money and a "buffet" of women.

Thereafter,

By mid-January 2009, the FBI had recruited Rivas's sister, Sarait, and a friend to assist with their investigation. Sarait and an undercover FBI agent, posing as a woman who would provide sexual favors, met with Barraza on January 21. There, Barraza stated that he would try to move Rivas's case to his court and that he wished to replace Rivas's court-appointed attorney with someone he trusted. On January 23, Sarait met Barraza at the courthouse and paid him $1,300. The same day, a transfer order appeared, trying to transfer Rivas's case to Barraza's courtroom, but the court coordinator stopped the transfer after discovering that Barraza had previously represented Rivas.

After the transfer failed,

Barraza continued seeking money and sex from Rivas's family and friends in exchange for his assistance. In February 2009, Barraza asked Sarait for the FBI undercover agent's email address and began soliciting her. On February 24, Sarait and the undercover agent met with Barraza, who detailed the failed transfer order. Barraza stated that he was trying to find other ways to remove the current judge in Rivas's case, but he would need more money. Three days later, Sarait met Barraza at the courthouse and paid him an additional $3,800.

After he was convicted, Barraza appealed, claiming, inter alia, that there was a Brady violation because

During her original FBI interview, Sarait did not say that Barraza had agreed to help Rivas in his capacity as a judge. Rather, Sarait simply said he had agreed to help Rivas, conceivably as her former attorney. 

At trial, however, "Sarait asserted that Barraza had promised to help Rivas using his position as a judge." After Sarait testified, the prosecution disclosed the original FBI interview to defense counsel. On Barraza's appeal, the State claimed that its failure to disclose the FBI interview was not a  Brady violation because it was merely supplementary and not contradictory, meaning that it was not impeachment evidence.

The Fifth Circuit, however, found that it did not need to resolve this issue because

even if Sarait's testimony is considered impeachment evidence, it did not prejudice Barraza. We have previously held that evidence turned over to the defense during trial has not been "suppressed" within the meaning of Brady, so long as "the evidence is received in time for its effective use at trial." Barraza cross-examined both Sarait and the FBI agent who interviewed her regarding this alleged change in testimony, and counsel was able to adequately impeach Sarait using the FBI's witness report. Prior knowledge of the perceived inconsistency would not have affected Barraza's trial strategy; thus, he was not prejudiced by any withholding of information.

-CM

That's A (W)rap: Florida Court Reverses Conviction Based Upon Impeachment Through Rap Sheet

Florida Rule of Evidence 90.610(1) provides that

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

But what proof of the witness' prior convictions must the party possess for impeachment to be permissible? That was the question addressed by the recent opinion of the District Court of Appeal of Florida, Fourth District, in Barcomb v. State, 2011 WL 3903118 (Fla.App. 4 Dist. 2011).

In Barcomb, Kevin Barcomb was convicted of felony driving while license revoked. At trial,

On cross-examination the prosecutor asked Barcomb if he had ever been convicted of a felony. He responded that he was unsure whether he had ever been convicted of a felony. The prosecutor asked no other questions regarding a prior felony.

Barcomb's prior felony conviction was for DUI, and the prosecutor merely obtained a NCIC, or rap sheet, which listed the conviction and did not notify defense counsel of his intent to use it for impeachment purposes until after trial had started. After Barcomb was convicted, he appealed, claiming that the prosecution failed to present sufficient evidence of his prior conviction to allow for impeachment.

The District Court of Appeal of Florida, Fourth District, agreed, finding that ordinarily a party must present a certified copy of the judgment of conviction to permit impeachment. Only if a party engages in a "good faith," but unsuccessful, attempt to procure a certified copy can impeachment be accomplished through a rap sheet. The problem for the prosecution in Barcomb was that it made no such good faith effort:

[T]he prosecutor in this case obtained on the eve of trial only an NCIC sheet indicating a prior DUI conviction in New York. She did not notify defense counsel of her intent to use it until after the trial had started, and she did not have certified copies of the conviction or, as in Peterson, an affidavit from New York attesting to the accuracy of the report. Nor had the prosecutor attempted to secure a certified copy of the conviction, as in Miller. We agree with Peoples that we should not stray so far from the Cummings rationale so as to approve the questioning of the witness without more than an NCIC rap sheet to wave in front of a jury.

The court thus reversed Barcomb's conviction.

-CM

In The Habit?: Central District Of Illinois Deems Safety Rating Evidence Admissible As Habit Evidence

Federal Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

So, let's say that a car driver sues a truck driver and his employer for negligence after a car accident and seeks to present into evidence the employer's safety ratings? Should the court allow for the admission of the evidence pursuant to Federal Rule of Evidence 406? 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 3924177 (C.D.Ill. 2011), the answer is "yes." I agree that the evidence was admissible but don't agree that it was admissible under Rule 406.

I already discussed the facts of Campbell in my prior post, which dealt with the admissibility of evidence of log books under the Best Evidence Rule. In Campbell, the defendants tried to preclude the plaintiffs from presenting evidence of RAP Trucking's (presumably bad) safety ratings. In response, the plaintiff claimed "that evidence of RAP Trucking's safety ratings is admissible pursuant to Federal Rule[] of Evidence 406, as evidence of the habit and routine practice of RAP Trucking." Specifically, the plaintiff asserted "that the relevance of such evidence is that a poor rating of driver fatigue is relevant to the training and supervision by RAP Trucking over its drivers, including Defendant Gross."

The Central District of Illinois agreed with the plaintiff, concluding

that the safety ratings are permissible habit evidence of RAP Trucking under Rule 406 to prove that RAP Trucking might be lacking in its supervision and training of employees....Under Illinois common law, an employer may be liable for injuries resulting to third persons for negligent training or supervision of an employee if the plaintiff can establish "that the employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, having this knowledge, failed to supervise the employee adequately, or take other action to prevent the harm." Doe v. Brouillette, 906 N.E.2d 105, 115-16 (Ill.Appp.Ct. 2009) (internal quotations omitted). Although the Defendant is correct that poor safety ratings do not establish that Defendant Gross himself behaved in a dangerous manner, the poor safety ratings are potentially probative to the issue of whether RAP Trucking supervised their employees adequately or took other action to prevent the harm suffered by the Plaintiff. Nevertheless, unless the Plaintiff can actually present any evidence that RAP Trucking "knew or should have known" that Defendant Gross himself was behaving in a dangerous or incompetent manner, the probative value of the safety ratings have the potential to be substantially outweighed by the danger of misleading the jury.

As I said in the introduction, I think that the Central District of Illinois correctly concluded that this evidence was (potentially) admissible, but I don't think that it was admissible under Rule 406. Indeed, the court iteself noted that this evidence was only admissible if RAP Trucking "knew or should have known" that Defendant Gross himself was behaving in a dangerous or incompetent manner. That's because the evidence was admissible if at all to prove knowledge under Federal Rule of Evidence 404(b). Evidence that a defendant is "unsafe" us either inadmissible propensity character evidence or admissible under Rule 404(b). I don't see how evidence of safety ratings could be specific enough to qualify as habit evidence under Rule 406.

-CM

The Evidentiary Significance of “Tweets,” Texts and Status Updates (starring Justin Bieber)

Internet blogs recently lit up with reports of a minor traffic collision involving a Honda Civic and a Ferrari driven by pop sensation Justin Bieber (see, e.g., here).  The next day, bloggers reported an interesting development (see, e.g., here):  according to these blogs, another celebrity – “Everlast” – sent out the following electronic message (i.e., “tweet”) on Twitter “moments before the crash”:

OGEverlast  I just raced @justinbieber down Ventura in his Ferrari I won but a fedex truck got in his way . . . .                                                                                          30 Aug

What is particularly interesting about this sequence of events from an evidentiary perspective is the potential admissibility of Everlast’s “tweet” in any subsequent litigation.

Of course the tweet, if offered for its truth, is hearsay.  At the same time, as with many tweets (which are intended to communicate “what’s happening” at any given moment, see twitter.com), Everlast’s tweet may fall within the hearsay exception for present sense impressions.

 Under Federal Rule of Evidence 803:

“The following are not excluded by the hearsay rule, even though the declarant is available as a witness:  (1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.”

Everlast’s tweet describes an event Everlast perceived (according to Everlast) and was uttered, it appears, “just” after he perceived it.  Interestingly, California is one of the few jurisdictions that does not recognize a present sense impression exception along the lines of Rule 803(1) and so Bieber will escape the evidentiary force of the tweet so long as any litigation takes place in state, not federal court.

Even if Bieber is out of the woods, the evidentiary implications of electronic present sense impressions (e-PSIs as I call them) are potentially ground shaking.  Tweets, electronic text messages, Facebook status updates and the like are increasingly becoming a dominant form of communication – particularly among the younger generation.  Twitter claims that 200 million tweets are sent out every day.  Facebook has 750 million users.  Text messaging is ubiquitous (ykwim, LOL!).  If even a small portion of these communications are admissible as present sense impressions, their impact on the judicial system will be significant.

A more serious case that demonstrates how litigants can use the present sense impression exception to admit e-PSIs is State v. Damper, 225 P.3d 1148 (Ariz.App. 2010), where a victim used her cellphone to text a friend just prior to her murder:  “Can you come over? Me and Marcus are fighting and I have no gas.”  An Arizona appeals court upheld the admission of the text, which suggested a motive for the killing (by Marcus), as a present sense impression.  Id. at 1150, 1153.  The court also ruled that the text message was “nontestimonial” and thus not barred by the Confrontation Clause.  Id. at 1151.

One might interject that these tweets and texts are not particularly reliable (see, for example, damnyouautocorrect.com) and thus not the kind of evidence that should be admitted without the declarant’s testimony (or even any showing of the declarant’s unavailability).  In fact, initial reports of the Bieber collision do not seem to fit with any suggestion that it resulted from street racing (see here).   Further, the Evidence scholars who originally advocated for the adoption of the present sense impression hearsay exception almost certainly never intended for it to apply to statements like the ones described above.  But new technologies and social mores have rendered the assumptions of these scholars obsolete, and the modern present sense impression exception seems tailor-made for the admission of e-PSIs like those described above, with potentially disastrous results. 

The disconnect between the historical rationale for the present sense impression exception and the modern admission of e-PSIs may be the most fascinating piece of this analysis, but that story is long, complex, and does not involve Justin Bieber, Everlast or, for that matter, anyone flashier than Edmund Morgan.  So I will stop here for today so as not to lose my Bieber-related readership.  But for those interested, this topic – which I believe will become an increasingly important one – is covered in detail in a forthcoming article, Facebook, Twitter, and the Uncertain Future of Present Sense Impressions (starring Justin Bieber)*

* actually that last bit is not part of the title . . .

Jeff Bellin

In General, Take 3: DRI Finds Testimony About Hernia Patch Admissible Despite Lack Of General Acceptance

Last week, I noted that someone on the Evidence professor listserv posed the question of 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. A follow-up e-mail asked the question of "What is the 'thing' that must be generally accepted?" This was the question addressed by the United States District Court for the District of Rhode Island in its recent opinion in Thorpe v. Davol, Inc., 2011 WL 470613 (D.R.I. 2011), with the court noting that it is the expert's principles and methodology, not the conclusions that they generate, that must be generally accepted.

In Thorpe, Christopher Thorpe and his wife Laura brought an action against several defendants, including Davol, Inc., which manufactures the CK patch used to repair his hernia. Generally, their complaint alleged that Christopher

was injured because the CK Patch used to repair his hernia was "inherently dangerous" for its intended use; that it was sold in a defective condition; that, as designed and manufactured by Davol, the CK Patch was unsafe; and that Davol failed to implement a safe and effective memory recoil ring that would interact with the CK Patch mesh in such a way as to withstand foreseeable stresses in the intraabdominal space intraabdominal space. 

After the jury found for the plaintiffs, Davol filed a motion for judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(b), claiming, inter alia, that the court erred by allowing the plaintiffs to present the testimony of Dr. Paul Ducheyne that scar contracture could have pulled apart the memory recoil rings on the CK patch. Specifically,

Dr. Ducheyne explained in detail how he had arrived at the conclusion that the ring in Thorpe's patch had broken at the weld by pointing out that the piece of one ring still in the patch showed a break in the molded material by which the two parts of the ring were originally connected, and that one of the pieces removed from Thorpe showed a corresponding break in the weld....With respect to his testimony on scar contracture and tissue responses to medical devices implanted in the body, Dr. Ducheyne explained that he had published extensively on tissue reactions and forces and stresses in tissues....His observations regarding the properties of polypropylene, including its intended function to become part of the surrounding tissue were supported by other testimony and not generally disputed. Moreover, the phenomenon of naturally occurring scar contracture generally, and in connection with medical devices, such as henia patches, specifically, is well known; it was explained in detail by Davol's own witness, Vice President of Research and Development, Roger Darois...; and Davol itself conducted various animal studies to investigate the contracture of ringed and ringless mesh inside the body.

The District of Rhode Island noted that the admissibility of Dr. Ducheyne's testimony was governed by Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) and Federal Rule of Evidence 702. And, according to the court,

While Daubert sets forth various factors to assist the Court in evaluating the principles and methodology relied upon by an expert witness to arrive at his ultimate conclusion, the factors are neither definitive nor exhaustive and may not be applicable in a particular case. Here, plaintiffs' expert acknowledged that there was no general acceptance of a general "scar contracture causes ring breaks" hypothesis, nor had such a theory been subjected to peer review or scientific investigation. However, Daubert does not require that every ultimate conclusion by an expert witness meet such standards; rather, the focus of a Daubert inquiry is on "principles and methodology, not on the conclusions that they generate."....Nor does Daubert require that an expert witness have conducted his own research regarding his specific conclusion or that such conclusion is supported by peer-reviewed literature. Further, the expert is "permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation."

Applying Daubert, the District of Rhode Island concluded that

It is clear that Dr. Ducheyne's ultimate conclusion would have carried more weight, had it been supported by general acceptance or peer reviewed literature. However, the reasoning and methodology by which he arrived at his ultimate conclusion were sufficiently grounded in scientific knowledge and supported by factual evidence, thus making his testimony admissible. Moreover,...Dr. Ducheyne was subjected to rigorous and competent cross examination that challenged both his conclusions and the sources from which he derived his conclusions, leaving it up to the jury to "decide among the conflicting views of different experts."...For these reasons, the Court is of the opinion that Dr. Ducheyne's testimony was properly admitted and that Davol's motion to strike such testimony must be denied.

-CM