October 15, 2011
The Number 23: Eastern District Of Virginia Finds 23 Year-Old Conviction Admissible To Impeach Plaintiff
Federal Rule of Evidence 609(b) provides that
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
Furthermore, the Advisory Committee's Note to Rule 609(b) provides that
Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.
In its recent opinion in Salmons, Inc. v. First Citizens Bank & Trust Co., 2011 WL 4828838 (E.D.Va. 2011), the United States District Court for the Eastern District of Virginia found that the defendant could use the plaintiff's 23 year-old criminal fraud conviction to impeach him. So, what were the exceptional circumstances?In Salmons, Salmons, Inc., a grain dealer, brought claims
against First Citizens Bank & Trust, Co., for violations of North Carolina's Unfair and Deceptive Trade Practices Act ("UDTPA") arising out of a loan that Defendant made to Plaintiff in January 2008. Between 2004–2008, Defendant extended more than $3 million in loans to Plaintiff through a series of seventeen separate transactions. Plaintiff claim[ed] that it was damaged by Defendant's taking of a "blanket lien" on its equipment, which prevented Plaintiff from obtaining funding from alternative lenders in order to satisfy its margin calls in February and March 2008.
Previously, in 1988, Jim Salmons (the Salmons in Salmons, Inc.), "was convicted of bank fraud stemming from his submission of false inventory reports to one of his lenders. Related to his conviction, Salmons filed for bankruptcy in 1987." The defendant sought to impeach Salmons through evidence of this conviction at trial, and Salmons filed a motion in limine to exclude this evidence.
The Eastern District of Virginia noted that if Salmons' conviction were not more than 10 years old, it would have been automatically admissible under Federal Rule of Evidence 609(a)(2), which provides that
For the purpose of attacking the character for truthfulness of a witness,...
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
But because Salmons' conviction was 23 years old, it was only admissible if, inter alia, its probative value substantially outweighed its prejudicial effect. According to the defendant, this balancing test was satisfied because
Plaintiff's claim depends on its ability to prove that Salmons had oral conversations with Defendant that contradicted the express language of the Loan Commitment, and thus...Salmons' credibility or lack thereof is a critical issue in this case. Specifically, Defendant claims that because Plaintiff has alleged that Defendant engaged in intentional deception, Plaintiff's claim "hinges on whether the jury believes Jim Salmons' testimony as to his dealings with the lender or the testimony of First Citizens' witnesses."
The Eastern District of Virginia agreed, concluding that
Where a witness' credibility is "highly relevant" to disputed issues in the case, courts have been more willing to admit stale convictions....Moreover, some courts have determined that the risk of unfair prejudice is lower in a civil case than in a criminal case.
Although Salmons' conviction is twenty-three years old, and although there is always a risk of prejudice involved with admitting a prior conviction, we find that Salmons' testimony and credibility are essential to Plaintiff's ability to prove its case. This case presents a rare circumstance in which the probative value of admitting a stale conviction substantially outweighs the potential for unfair prejudice. We thus hold that evidence of Salmons' prior conviction and bankruptcy is admissible for the purposes of impeachment.
October 14, 2011
In Context: 5th Circuit Finds Specific Ground For Rule 404(b) Objection Was Apparent From The Context
Federal Rule of Evidence 103(a)(1) provides that
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....
You don't find many cases in which an appellate court finds that the specific ground of an objection is "apparent from the context...." The recent opinion of the Fifth Circuit in United States v. Mireles, 2011 WL 4584763 (5th Cir. 2011), is an exception.In Mireles, Merlin Mireles was convicted of transporting illegal aliens and harboring illegal aliens. At trial, defense counsel objected to the prosecution's attempt to introduce the testimony of several of Mireles' coworkers, and the prosecution countered that the testimony was relevant
because [Mireles's Attorney had] argued to the jury in his opening statement that it didn't make sense, and that's a quote, for him to have harbored an illegal, but when you look at his work record, he violated on repeated occasions, like, the code of conduct. There was an instance where he actually solicited, asked for a date of a woman coming across the border.
Now, I think he opened the door to that by suggesting that this guy, that he had no reason, but he continually, he was continually late. He was caught sleeping. This guy just simply, he didn't care about his job, so it made perfect, it made perfect sense for him to do this because there are instances where he didn't, he didn't honor his code. He didn't honor the regulations.
The district court then asked the prosecution if this evidence was "Rule 404(b)" evidence, which the prosecution denied. Defense counsel then reiterated his objection, stating that the proffered evidence was "character assassination. That's all it is. It's just character evidence." The district court, however, overruled this objection as to the majority of the prosecution's proffered evidence.
After Mireles was convicted, he appealed, claiming, inter alia, that the coworkers' testimony was inadmissible character evidence under Federal Rule of Evidence 404(b). The government countered that Mireles did not preserve this issue for appellate review because "Mireles only objected to 'character evidence' under Rule 404(a)."
It therefore argues that this court should review for plain error. See Williams, 620 F.2d at 488–89. We disagree. The Fifth Circuit disagreed, concluding that
To preserve an evidentiary error for review, the movant must make "a timely objection or motion to strike ... stating the specific ground of objection, if the specific ground was not apparent from the context." FED.R.EVID. 103(a)(1). For two reasons, it was apparent from the context that Mireles's attorney was making a Rule 404(b) objection. First, the district court had specifically asked the Government if it was attempting to introduce Rule 404(b) evidence. Second, Mireles's attorney began the colloquy with his concern about "incidents that occurred at work, not crimes that he's ever been convicted of." These statements clearly show that Mireles's attorney was objecting to "other acts"character evidence under Rule 404(b). Mireles properly preserved his objection, and we review the district court's admission of the alleged 404(b) evidence for abuse of discretion.
October 13, 2011
Georgia On My Mind: Supreme Court Of Georgia Looks To New Georgia Rules Of Evidence For Prior Consistent Statement Ruling
As I have previously noted, Georgia recently passed a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence. This new Code will not take effect until 2013, but, as the recent opinion of the Supreme Court of Georgia in Stephens v. State, 2011 WL 4532671 (Ga. 2011), makes clear, this new Code is already having an effect on how Georgia courts interpret the existing Georgia Rules of Evidence.
In Stephens, Bradley Stephens was convicted of incest against his stepdaughter, following sexual abuse that began when the victim was five years old and continued until she was 16, when he impregnated her and took her to get an abortion. At trial, a witness for the prosecution testified, and, after defense counsel claimed that the witness' testimony was a recent fabrication, the trial court allowed the prosecution to admit the witness' prior consistent statement(s). Thereafter, over defense counsel's objection, the trial court gave the following pattern jury instruction on prior consistent statements:
Should you find that any witness has made a statement prior to trial of this case that is consistent with that witness's testimony from the witness stand and such prior consistent statement is material to the case and the witness's testimony, then you are authorized to consider the other statement as substantive evidence.
After he was convicted, Stephens appealed, claiming, inter alia, that the trial court erred in giving this instruction, and the Supreme Court of Georgia agreed (but found harmless error), concluding that
In recent years, the Court of Appeals has repeatedly said that the "better practice" is not to give an instruction on prior consistent statements....We now hold that an instruction on prior consistent statements should no longer be given except where the circumstances of an unusual case suggest that the jury may have the mistaken impression that it cannot consider a prior consistent statement as substantive evidence. For example, the jury might send a note during deliberations asking whether it can consider a prior consistent statement as regular evidence, or an attorney might make an improper statement in closing argument suggesting to the jury that a prior consistent statement is not a valid type of evidence. When a charge on prior consistent statements is needed because of such circumstances, the charge should be adjusted to address the issue that requires it. No such circumstances were present in this case, and so the Court of Appeals correctly determined that the pattern instruction should not have been given.
Importantly, the Georgia Supremes then pointed out that
It is also worth noting that a routine instruction on prior consistent statements is discouraged in federal practice,...and Georgia courts will soon be operating under a prior consistent statements rule that parallels Federal Rule of Evidence 801(d)(1)...
This analysis reveals two important things: (1) Georgia courts apparently will look to the Comprehensive Revised Evidence Code in reaching evidentiary conclusions even before that new Code takes effect; and (2) Georgia courts apparently will look to federal law in determining how to apply the Comprehensive Revised Evidence Code based upon its similarity to the Federal Rules of Evidence.
October 12, 2011
Anything Resembling Furtherance?: Court Of Appeals Of Iowa Finds Trial Court Erred In Admitting Co-Conspirator Admissions
The statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
As the language of the Rule makes clear, it is not enough for a statement to be made during the course of a conspiracy. Instead, for a statement to qualify as a co-conspirator admission, the statement must have been made during the course of and in furtherance of the conspiracy. And this latter fact was something that the prosecution did not sufficiently in State v. Dayton, 2011 WL 4578505 (Iowa App. 2011), according to the recent opinion of the Court of Appeals of Iowa.
In Dayton, Jessica Dayton was convicted of first-degree murder. According to the prosecution, Dayton conspired with Denise “Dee” Frei and Frei's son, Jacob Hilgendorf, to kill Curtis Bailey. At trial, the prosecution allowed for the admission of statements by Frei to Elisha Runyan, who was not part of the conspiracy, before the murder was committed. Specifically, Frei told Runyan that
(1) "her and Jess [Dayton] were going to try again on Saturday," (2) Frei "was going to start drinking so then she had a reliable reason for Jess to drive her home," (3) they were "going to overdose Curt," and (4) "Jacob [Hilgendorf] and Jess were going to get $5000 apiece if they helped...[k]ill Curt."
The trial court also allowed Runyan to testify that (1) Frei asked her to come to a café "because she wanted to tell me what they all had planned and that...everything was going to go well," and that Frei told her that "they were going to try to overdose" Bailey.
After she was convicted, Dayton appealed, claiming, inter alia, that the trial court improperly allowed for the admission of these statements as co-conspirator admissions under Iowa Rule of Evidence 5.801(d)(2)(E). The Court of Appeals of Iowa agreed, initially noting that some examples of statements made in furtherance of a conspiracy
include comments designed to assist in recruiting potential members, to inform other members about the progress of the conspiracy, to control damage to or detection of the conspiracy, to hide the criminal objectives of the conspiracy, or to instill confidence and prevent the desertion of other members.
The court then pointed out that
"'The statement need not have been made exclusively, or even primarily, to further the conspiracy.'"...Instead, the "record need only contain some reasonable basis for concluding that the statement in question furthered the conspiracy in some respect."
That said, the court could not find even such a reasonable basis, concluding that
There is not much, if any evidence, to support this assertion. While it is true Frei told Runyan that "everything was going to go well" and that she was going to pay Dayton and Hilgendorf $5000 each for their assistance, there is no indication she made these statements in an attempt to elicit Runyan's cooperation or assistance....Rather, she simply seemed to be relating the plan to a trusted friend, who played no role in the murder....Thus, the statements do not appear to have been made in furtherance of the conspiracy.
Thus, the Court of Appeals of Iowa found that the trial court erred in admitting these statement but deemed the error harmless and thus affirmed Dayton's conviction.
October 11, 2011
The New SCOTUSblog "Community" Feature & Florence v. Board of Chosen Freeholders of Burlington County, et al.
SCOTUSblog recently launched a cool new online "community" feature where folks can join up and discuss key issues having to do with the Supreme Court (http://www.scotusblog.com/community). Today's discussion centered around the upcoming case of Florence v. Board of Chosen Freeholders of Burlington County, et al., which deals with the question of whether the government can conduct suspcionless strip searches of every person admitted to jail. The entire discussion can be found here. Below is the comment that I contrbibuted:
If a man's home is his castle and a man's body is his temple, then perhaps the Supreme Court should consider its opinion in Buie v. Maryland, 494 U.S. 325 (1990), in deciding whether the government can conduct suspiconless strip searches of every person admitted to jail. In Buie, the Supreme Court held that as an incident to a lawful home arrest, police officers can, "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." The Court cautioned, however, that for officers to conduct a "protective sweep" beyond these spaces, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."
An analogy can be drawn to station house searches of arrestees. Pursuant to Illinois v. Lafayette, 462 U.S. 640 (1983), as an incident to the lawful booking and jailing of a suspect, police officers can, as a precautionary matter and without probable cause or reasonable suspicion, conduct an inventory or booking search. If, however, officers want to further invade the privacy of the arrestee and search the recesses of his body, then, like officers seeking to search the recesses of an arrestee's home during a protective sweep, there must be at least reasonable suspicion. Indeed, this was the precise argument made by the Eleventh Circuit in Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005). According to the Eleventh Circuit, "[w]hen we balance the need for investigative strip searches for evidence that might be hidden on the arrestee's body against the intrusiveness inherent in a strip search, we believe Buie, 494 U.S.at 325...provides the analytical framework that, at a minimum, would apply to strip searches for evidence." And, under that framework, "an officer must have at least a reasonable suspicion that the strip search is necessary for evidentiary reasons."
More on the Impeachment of Criminal Defendants
I previously blogged (here) about the courts’ flawed application of federal evidence rule 609 (and state variants) – a rule that purports to restrict impeachment of testifying criminal defendants with past crimes.
The courts’ failure to meaningfully restrict this type of impeachment is significant in numerous ways, but perhaps the most compelling is its effect on innocent defendants. Professor John Blume’s fascinating empirical study of defendants cleared through post-conviction DNA testing provides powerful empirical evidence to support the widespread intuition that prior conviction impeachment stops even innocent defendants from testifying. See John Blume, The Dilemma of the Criminal Defendant with a Prior Record - Lessons from the Wrongfully Convicted, Journal of Empirical Legal Studies (2008) (concluding that “the current legal regime discourages defendants, even factually innocent defendants from telling their story at trial”) (available here).
One can imagine jurors in the cases Prof. Blume studied wondering why an innocent defendant would not testify, and proclaim his or her innocence to the jury. Well, as Professor Blume found, the likelihood of impeachment with prior convictions – something the jury will rarely contemplate – is often the answer.
Given the power of this type of impeachment to keep even innocent defendants off the stand, one would hope that courts would be wary of permitting it. As noted in my earlier post, the opposite is true.
Recent blog posts (here, here and here) discussing the constitutional implications of enhancing the punishment for assault crimes based on the genders of the offender/victim bring to mind a further example of courts expanding the already too large universe of prior conviction impeachment.
Texas criminal law once paralleled the states referenced in the blog posts in defining as “aggravated” any assault “[w]hen committed by an adult male upon the person of a female.” Satterfield v. Texas Dept. of Public Safety 221 S.W.3d 909, 911 -912 (Tex.App.–Beaumont 2007). The aggravating factor was eliminated by the Texas legislature in 1973. The current Texas Penal Code does not differentiate assaults based on the respective genders of the perpetrator and victim. See Tex. Pen. Code § 22.01.
Yet pre-1973 Texas criminal law still resonates in the state’s evidence law regarding the impeachment of witnesses. In Texas, a witness’s credibility can be impeached with a conviction for misdemeanor assault, so long as the assault was “by a man against a woman.” Hardeman v. State 868 S.W.2d 404, 405 (Tex.App.-Austin,1993). This rule arises from a judicial interpretation of Texas Rule of Evidence 609, which permits witness impeachment with non-felony convictions only if a conviction is for a crime of “moral turpitude.” Consistent with the general view, Texas courts do not consider misdemeanor assault to be a crime of “moral turpitude.” The Texas courts, however, carve out an exception if the perpetrator is male and the victim is female. Note that the Texas courts here go, without explaining this interpretive quirk, beyond the modern legislative definition of the misdemeanor assault offense to define subsets of the crime, and thus preserve an unfortunately vast number of offenses for use as impeachment.
As the Texas courts explain in justifying their ruling, an “assault by a man against a woman is generally regarded by the members of our society as more morally culpable,” 868 S.W.2d at 405. Polling would likely support that intuition. But that is also the very reason that permitting such crimes as “impeachment” will keep defendants off the stand. Given the expectation that jurors will more readily convict a defendant if they learn that, on a previous occasion, he assaulted a woman, one expects that defense counsel will be extremely hesitant to allow a jury to hear about it. And since it is likely that the guilt-phase jury will only learn of the past conviction (via impeachment) if the defendant testifies (see, e.g., 868 S.W.2d 404, 405), the predictable consequence of the Texas doctrine, will be that more defendants – whether guilty or innocent – will decline to testify in their own defense.
October 10, 2011
Murder For Hire: 6th Circuit Finds Statements Made After Murder In Murder For Hire Qualify As Co-Conspirator Admissions
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
If a defendant is charged with conspiracy to commit murder, the conspiracy typically ends with the murder (or its immediate aftermath), meaning that later statements cannot qualify as co-conspirator admissions because they were not made during the course of the conspiracy. But if the defendant is charged with conspiracy to commit murder for hire...well, then you have a case like United States v. Johnson, 2011 WL 4585234 (6th Cir. 2011).In Johnson,
Martha Johnson was beaten to death in her trailer-home on 22 July 1999. On 23 January 2007, her son Billy Johnson was indicted on murder for hire charges in her death. An eleven-count Redacted Superseding Indictment was returned on 14 August 2008 in which the Defendant was charged with conspiracy to use interstate commerce facilities in the commission of murder for hire,...with traveling in interstate commerce with the intent to commit murder for hire and aiding and abetting,...and with use of the mail in the commission of murder for hire....
At trial, the court allowed the prosecution to admit statements made by Billy Johnson's co-conspirator, Danny Winberry, concerning Billy Johnson's failure to pay him $45,000 from life insurance proceeds on a policy on Martha Johnson's life.
After Billy Johnson was convicted, he appealed, claiming, inter alia, that the district court erred by deeming this statement a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E) because the conspiracy ended with Martha Johnson's death. The Sixth Circuit disagreed, concluding that Billy Johnson
misconstrue[d] the parameters of the charge of murder for hire in this case. The objectives of the conspiracy, as argued by the government, did not consist solely of the murder of Martha Johnson, but also, integrally, included the post-murder payment of $45,000 to Winberry from the Defendant garnered from Ms. Johnson's life insurance proceeds. The duration of the murder for hire conspiracy, so construed, spanned from July 1999 until payment was made to Winberry. As Winberry noted at trial, he never received that balance of payment. Further, Winberry's statements to Haynes Johnson and Ricky Elrod nurtured the conspiracy by concealing it from the investigation of law enforcement.
October 9, 2011
That's Ancient History: Court Of Appeals Of Kentucky Finds Old Newspaper Articles Admissible As Ancient Documents
Statements in a document in existence twenty (20) years or more the authenticity of which is established.
And, as the recent opinion of the Court of Appeals of Kentucky in Rehm v. Ford Motor Co., 2011 WL 4632924 (Ky.App. 2011), makes clear, if you are seeking to admit newspaper articles that are 20 years old or older, Rule 803(16) is your go-to rule.
In Rehm, James Rehm was an employee of Rapid Installations, which performed work at Ford Motor Company's Louisville Assembly Plant (LAP). After Rehm was diagnosed with malignant mesothelioma, his wife, children, and he brought an action against several defendants, including Ford. According to the plaintiffs, James Rehm contracted his disease while performing changeover work at LAP after June 1981. In response, Ford introduced
two newspaper articles that reported that the last [Ford] LTD manufactured in Louisville rolled off the line in June of 1981. Therefore, Ford contended that James could not have been involved in the changeover work that occurred after June 1981.
After the court found for Ford, the plaintiffs appealed, claiming, inter alia, that the court erred in allowing Ford to admit the two newspaper articles. The Court of Appeals of Kentucky disagreed, finding that the articles were admissible under Rule 803(16) as ancient documents because they were more than 20 years old. Moreover, the court concluded that the articles were self-authenticating under Kentucky Rule of Evidence 902(4) (alternatively, the court court have found that the articles met the requirements for the authentication of ancient documents under Kentucky Rule of Evidence 901(b)(8)).