EvidenceProf Blog

In Need Of A Refresher: Court Of Appeals Of Louisiana Finds Trial Court Erred In Precluding Refreshment Of Recollection

Similar to Federal Rule of Evidence 612, La. C.E. art. 612(b) provides that

In a criminal case, any writing, recording, or object may be used by a witness to refresh his memory while testifying.  If a witness asserts that his memory is refreshed he must then testify from memory independent of the writing, recording, or object.  If while testifying a witness uses a writing, recording, or object to refresh his memory an adverse party is entitled, subject to Paragraph C, to inspect it, to examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

And, as the recent opinion of the Court of Appeal of Louisiana, Fourth Circuit in State v. McElveen, 2011 WL 4486054 (La.App. 4 Cir. 2011), makes clear, the refreshing writing, recording, or object can be prepared by anyone, not just the testifing witness.

In McElveen, co-defendants/brothers, Thatcher McElveen and Terry McElveen were both convicted of second-degree murder and sentenced to life imprisonment. After they were convicted, the defendants appealed, claiming, inter alia, that the trial court erred in prohibiting defense counsel from using a crime scene report to refresh a detective's memory as to whether he sent blood samples from the crime scene to a criminalist. Specifically, the defendants contended that this ruling impeded them from establishing that the criminalist had custody of the victim's blood in his serology lab, which would gave bolstered the defense theory that the criminalist planted the victim's blood on a shirt found in the McElveen residence.

At trial, the prosecution objected to the use of the report to refresh the detective's recollection, claiming that " report authored by another person could not be used to refresh a witness' recollection. In addressing the defendant's appeal, the Court of Appeal of Louisiana, Fourth Circuit found that "[t]he trial court erroneously sustained the prosecution's objection on that ground." In reaching this conclusion, the court pointed out that Note (a) of Comments under C.E. art. 612 states: 

This Article follows former R.S. 15:279 in permitting a witness to refresh his memory by examining a writing, recording or object regardless of when and by whom it was prepared. This Article is based on Federal Rule of Evidence 612.

Nonetheless, the appellate court found that based upon the overwhelming other evidence of the defendants' guilt, the trial court's error was harmless and affirmed the defendants' convictions.

-CM

Going Unnoticed: Court Of Appeals Of Texas Finds Lack Of Notice of Character Evidence Doesn't Support Reversal

Texas Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction. (emphasis added)

Meanwhile, Article 37.07, section 3(a) of the Texas Code of Criminal Procedure provides in relevant part that

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including...evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

Finally, Article 37.07, section 3(g) of the Texas Code of Criminal Procedure provides that

On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.

But what happens if the State violates Article 37.07, but the trial court still allows it to admit character evidence against the defendant at sentencing? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Waco, in its recent opinion in Wham v. State, 2011 WL 4413745 (Tex.App.-Waco 2011).

In Wham, Aaron Clark Wham appealed his 365–day jail sentence assessed by the trial court after a jury convicted him of committing assault-family violence. Before trial, Wham had filed a pretrial request for notice of the State's intent to introduce against him "evidence of an extraneous crime or bad act at the punishment phase of trial." Thereafter, at sentencing, the State asked the complainant about an alleged (unrelated) assault that Wham committed against her in August 2009. Over Wham's objection that the State had not provided pre-trial notice of this evidence, the trial court permitted the complainant to offer a detailed answer to this question.

In addressing Wham's appeal, the Court of Appeals of Texas, Waco found that there was improper notice and that the trial court clearly erred because while "Article 37.07, section 3(g) does not discuss the consequences of the State's failure to provide the required notice,...'[t]he logical and proper consequence of violations of section 3(g) is that the evidence is inadmissible.'" So, where did that leave Wham?

According to Wham, there needed to be a new sentencing hearing because

the trial court's punishment decision was "substantially swayed" by the "erroneous admission into evidence, and subsequent consideration of, the testimony elicited by the State concerning Defendant's alleged commission of extraneous acts of violence against [the complainant]."

The Court of Appeals noted, however, that 

"focusing on the degree of prejudice created by the erroneous admission of the evidence is a different harm analysis employed for violations of the rules of evidence concerning relevancy, and is not appropriate here where our inquiry is limited to the harm caused by the State's inadequate notice.

Instead, the court focused upon "how the notice deficiency affected the appellant's ability to prepare for the evidence." And, in that regard, the court found that the answer was "not very much." Why? Separate charges were brought against Wham based upon the August assault, and defense counsel himself acknowledged "to the trial court that he was 'well aware of the charges' but that he was 'not aware of the State's intent to use that in Punishment.'" 

Thus, the appellate court found that the trial court's error was harmless and affirmed Wham's sentence.

-CM

Unimpeachable: 7th Circuit Finds Evidence That Sauna Was Used As Place Of Prostitution Inadmissible Under Rape Shield Rule

Like all states, Wisconsin has a rape shield rule. Under Wisconsin's rule, WIS. STAT. Section 972.11(2)(b), in civil and criminal cases involving alleged sex crimes,

any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury....

The general purpose of rape shield rules is two-fold: (1) preventing a defendant from presenting evidence of an alleged victim's sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with that propensity, and thus consent, at the time of the crime charge; and (2) preventing a defendant from using such evidence to prove that the alleged victim is a liar.

Rape shield rules, of course, are subject to exceptions, including an exception for when the exclusion of evidence would violate the Constitutional rights of the accused. As noted, a main purpose of rape shield rules is to prevent impeachment of alleged victims of sexual crimes. But what if the defendant wants to impeach a witness other than the alleged victim through evidence of the alleged victim's sexual behavior? That was the unique question recently addressed by the Seventh Circuit in its recent opinion in Jardine v. Dittman, 2011 WL 4056677 (7th Cir. 2011).

In Dittman,  a Wisconsin jury convicted Jardine of sexually assaulting and attempting to kill Laurie Grandhagen, a masseuse at Kady's Sauna. After he was convicted, Jardine combined his direct appeal with an unsuccessful motion for a new trial. After losing on appeal, Jardine petitioned the Supreme Court of Wisconsin for review. While this petition was pending, the trial court received a letter from a police detective who admitted doctoring the crime scene in some manner to hide evidence of prostitution at Kady's. Jardine then filed another new-trial motion, but the trial court denied the motion, and the Supreme Court of Wisconsin ultimately denied review.

Jardine thereafter filed a petition in federal district court under 28 U.S.C. § 2254, claiming, inter alia, that evidence that Kady's Sauna was used as a house of prostitution was material exculpatory information that was unconstitutionally suppressed pursuant to Brady v. Maryland, 373 U.S. 83 (1963). The district court summarily dismissed the petition, leading to Jardine's appeal to the Seventh Circuit.

According to the Seventh Circuit, one central problem with Jardine's petition was that the suppressed evidence would have been inadmissible under Wisconsin's rape shield rule if offered against Grandhagen. Moreover, the court found that the exclusion of such evidence would not have violated the Constitution because "evidence that a sexual-assault complainant often consented to sex with other men is archetypally prejudicial and not highly probative of consent in a particular case; precisely that concern underlies rape-shield statutes."

That said, Jardine argued that the evidence alternatively could have been offered to impeach another witness for the prosecution. Denise McKay, another masseuse at Kady's Sauna testified at trial and denied "generally that prostitution took place at the parlor and specifically that Jardine had once purchased her sexual services."

The Seventh Circuit disagreed, finding that even if this evidence was not excluded under the rape shield rule, it was properly excluded because it would have run "afoul of the state's rule against impeachment through extrinsic evidence of collateral acts." Moreover, the court found that it was "hard to see how the Wisconsin courts would be unreasonable in concluding that Jardine had no constitutional right to impeach McKay rather than Grandhagen with evidence of prostitution—unless the Wisconsin courts were gravely mistaken in twice characterizing McKay's role in the trial as inconsequential."

-CM

A Family Matter: Supreme Court Of Vermont Finds Inadmissible Hearsay Improperly Admitted Under Rule 703

Like its federal counterpart, Vermont Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. (emphasis added)

As the last sentence of Rule 703 makes clear, while inadmissible evidence can sometimes form the basis for an expert witness' conclusion, that inadmissible evidence itself almost always remains inadmissible. This was a distinction recently missed by a Vermont family court as is made clear by the recent opinion of the Supreme Court of Vermont in Chickanosky v. Chicakanosky, 2011 WL 4389396 (Vt. 2011).

In Chickanosky, Margaret Chickanosky appealed from a family court order granting her ex-husband, Michael Chickanosky, sole physical and legal rights and responsibilities of their child. What precipitated this order was her ex-husband's petition to

the family court for primary physical responsibility of daughter because of a planned relocation to Missouri. He asserted that the relocation was a real, substantial, and material change in circumstances warranting a change in the award of physical rights and responsibilities. Father further asserted that it would be in daughter's best interest that he be awarded primary physical responsibility so that she could move with him and his wife to Missouri and that mother be awarded reasonable parent-child contact. Mother contended that it would be in daughter's best interest to remain with her in Vermont.

Thereafter,

Following a four-day hearing, the court issued a written decision in July 2010. The court made extensive findings, relying on a court-ordered forensic evaluation by Dr. Joseph Hasazi, its January 2009 order and related findings and conclusions of law, and the testimony of multiple witnesses. The court found that father's primary motivation for moving to Missouri was to be closer to his wife's family. Other factors influencing father's decision to move included Missouri's lower cost of living, the tense situation with mother and its impact on daughter, and the cost of the ongoing litigation regarding their daughter.

In awarding sole physical and legal rights and responsibilities of their child to Michael Chickanosky, the family court relied not only on Dr. Hasazi's conclusions in his evaluation but also inadmissible hearsay statements which Dr. Hasazi relied upon in reaching those conclusions.

In appealing the family court's order, Margaret Chickanosky claimed that the court improperly relied upon this underlying inadmissible hearsay in reaching its determination. The Supreme Court of Vermont agreed, finding that

Contrary to the family court's analysis, the admission of Dr. Hasazi's report does not render substantively admissible the facts forming the basis of his opinions that are not otherwise admissible or admitted into evidence. It is true that in writing his report, Dr. Hasazi could rely on facts not admissible or admitted as evidence as long as the facts are of a type reasonably relied on by experts in the field....

Dr. Hasazi's use of inadmissible hearsay evidence as a basis for his expert opinion as expressed in his report does not make that hearsay suddenly admissible for its substance. Id.Rather, as we clarified in Recor:

[u]nder Rule 703, if an expert relies on the out-of-court statements of another in forming his or her opinion and if such statements are of a type reasonably relied on by experts in the particular field, then the statements—even if not independently admissible for their substance—will be admissible for the limited purpose of demonstrating the basis for the expert's opinion....

We emphasized there that Vermont Rule of Evidence 70 "is not to be treated as either an auxiliary hearsay exception, or as a backdoor to an expansive reading of existing hearsay exceptions."...In the case at hand, the family court's justification for using otherwise inadmissible statements contained within the report was based on the fact that Dr. Hasazi's report was entered into evidence by stipulation and, according to the court, "without any restrictions." This does not overcome the limits of the rule and statute governing the report's admission.

That said, the Supreme Court of Vermont still affirmed the family court's order because "independent evidence in the record support[ed] the court's finding that mother d[id] not foster independence in daughter."

-CM 

A Civil Action: 7th Circuit Finds Ohler Preservation Rule Applies In Civil As Well As Criminal Cases

When a court authorizes the impeachment of a criminal defendant, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's impeachment ruling by using such a technique.  So, does the same hold with prior convictions of a plaintiff in a civil trial? According to the recent opinion of the Seventh Circuit in Clarett v. Roberts, 2011 WL 4424790 (7th Cir. 2011), the answer is "yes."

In Roberts,

Police officers went to Patricia Clarett's home in Lansing, Illinois, early one morning to question her sons about a burglary that had occurred overnight in nearby Lynwood, Illinois. A confrontation ensued and escalated quickly. One of the officers Tasered Clarett three times, and the officers arrested her for obstruction and resisting arrest. Those charges were subsequently dropped, and Clarett sued the officers under 42 U.S.C. § 1983 alleging use of excessive force and false arrest in violation of the Fourth Amendment, and various state-law claims.

Before trial, the district court entered a ruling in limine that two of Clarett's criminal convictions—for misdemeanor retail theft and obstructing a police officer—could be admitted at trial in the event that she testified. Thereafter, Clarett's attorney questioned Clarett about her convictions on direct examination.

After the jury returned a verdict for the officers, Clarett appealed, claiming, inter alia, that the district court erred in deeming the convictions admissible to impeach her. In response, the Seventh Circuit initially noted that "[w]e have never addressed whether the Ohler principle applies in civil cases." It then acknowledged Clarett's argument "against applying Ohler in the civil context, noting that criminal defendants have the right not to testify in their defense, while civil plaintiffs generally must do so in order to prove their claim."

That said, the court rejected the argument, concluding that

This distinction is immaterial in light of Ohler's reasoning. The Court noted that even after a criminal defendant chooses to take the stand, she "has a further choice to make.... The defendant must choose whether to introduce the conviction on direct examination and remove the sting or to take her chances with the prosecutor's possible elicitation of the conviction on cross-examination."...The same choice is present in civil cases....

The logic of Ohler applies with equal force in both criminal and civil cases. The tactical nature of each party's decisions is the same; indeed, the stakes are higher in a criminal case, and still the Supreme Court found waiver. We note that every circuit [the 3rd, 6th, 8th, and 9th] to have addressed the question has applied Ohler in civil cases.

-CM

Resource Of Interest: Law 101: A Legal Guide for the Forensic Expert By NCSTL

I've written before (see here and here) about the terrific work being done by the National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law. I now write to inform you that

Law 101:  A Legal Guide for the Forensic Expert, produced by the National Clearinghouse for Science, Technology, and the Law (NCSTL) at http://www.ncstl.org, went live in August.  It is free and it is located at:  https://law101.dna.gov.   Anyone serving as an expert witness will benefit from learning the legal procedures, expectations, and principles presented in this course. There is also a text version of the Legal Guide, which is located at: https://law101.dna.gov/rawmedia_repository/9af62ee8_fd43_4041_b977_1982154535cf?document.pdf.

I had a chance to peruse the Guide this weekend, and I can say that it is a terrific resource for not only expert witnesses and attorneys working with expert witnesses but also for professors teaching a class in Evidence.

The Guide is broken down into 13 modules:

1. Sources of Scientific Evidence

2. Report Writing and Supporting Documentation

3. Importance of Case Preparation

4. Subpoenas vs. Promises to Appear

5. Affidavits

6. Being a Court-Appointed Expert

7. Discovery

8. General Testifying Tips

9. Depositions

10. Pretrial

11. Trial

12. Post-Trial, Pre-Sentencing

13. Ethics for Experts

Each of these modules is chock-full of useful information for expert witnesses, attorneys, and professors/students. For instance, in "Sources of Scientific Evidence, there is the following chain of custody checklist:

1. The field location of the item. The geographical location where the item was found or observed, including a careful log entry and, if necessary, a photograph of the location.

2. How the item was preserved. Evidence items must be bagged, packaged or otherwise handled in such a fashion that the evidentiary value is not destroyed. Appropriate containers should bear complete ID tags and labels.

3. Who was part of the chain of physical custody. Each person who handles the item should make a log entry and receipt of the fact that they handled the evidence. As the item passes from person to person, ultimately to a laboratory or storage area, a chain of receipts should be created. No question should ever exist at trial or a hearing that concerns missing items, mishandling or contamination of items, mislabeling of items, destruction of items (other than in special circumstances where destructive tests are required), or breaks in the chain of custody that might jeopardize evidence admissibility.

Meanwhile, in "Affidavits," there is a list of five circumstances in which affidavits may be used instead of a witness's in-court testimony:

1. To support an arrest warrant.

2. To present evidence to a grand jury.

3. In preliminary hearings or probable cause hearings.

4. By agreement or stipulation of the parties in a trial.

5. To provide impeachment material of the affiant, who later testifies in person.

So, if you want to build a better expert witness, attorney, or law student, by all means check out the excellent Law 101: A Legal Guide for the Forensic Expert.

-CM

Call Me: 10th Circuit Finds Officer Properly Authenticated Defendant's Voice On Recorded Conversations

Federal Rule of Evidence 901(b)(5) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:....

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

So, how well must a witness know a voice before he can authenticate it consistent with Rule 901(b)(5)? According to the recent opinion of the Tenth Circuit in United States v. McDaniel, 2011 WL 4396976 (10th Cir. 2011), the answer is "not very."

In McDaniel, 

Keith McDaniel was charged, along with twenty-three other individuals, with one count of conspiracy to manufacture, possess with intent to distribute, and to distribute fifty grams or more of cocaine base and to possess with intent to distribute and to distribute five kilograms or more of cocaine....At trial, the district court admitted into evidence multiple recorded telephone conversations between the conspirators which investigating officers had intercepted through wiretaps. Seven of these conversations involved Mr. McDaniel.

After he was convicted, McDaniel appealed, claiming that the prosecution failed to properly authenticate his voice on the telephone conversations. The prosecution authenticated McDaniel's voice through the testimony of Officer Eric Jones:

[OFFICER JONES]: I have spoken with Mr. McDaniel, as well as Mr. McDaniel, for instance, is one that we didn't positively identify until almost the end of our intercepts, and towards the end of the investigation we had an idea that it was him. We just didn't—we couldn't positively say initially that it was him until other aspects kind of came into play through surveillance and some other incidences later.

[PROSECUTOR]: As a result of talking to him and conducting surveillance, you're able to identify phone calls associated or between [codefendant] Monterial Wesley and Mr. McDaniel?

[OFFICER JONES]: Yes.

On appeal, McDaniel claimed that

Officer Jones's testimony was not specific enough to establish minimal familiarity because it is unclear when Officer Jones and Mr. McDaniel spoke, for how long they spoke, where they spoke, or how much Mr. McDaniel said during their conversation. Indeed, Mr. McDaniel asserts that "[f]or all that can be gleaned from Officer Jones's testimony, it may have been an entirely one-sided conversation, with Mr. McDaniel saying virtually nothing."

The Tenth Circuit disagreed, concluding that

Rule 901 only requires that the witness have heard the voice "at any time under circumstances connecting it with the alleged speaker." Here, Officer Jones testified that he had "spoken with Mr. McDaniel," and through "surveillance and some other incidences later," he was able to identify Mr. McDaniel's voice on the recordings....

We are satisfied that the district court did not abuse its discretion in ruling that the admission of the intercepted calls was supported by sufficient evidence to satisfy Rule 901.

-CM