EvidenceProf Blog

Can I Get A Summary?: 1st Circuit Finds No Obligation To Produce Summaries Before Trial Under Rule 1006

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

So, the proponent of a summary under Rule 1006 must make the originals or duplicates that are summarized available for examination and/or copying by other parties at a reasonable place and time. But what about the summary itself? Mist that also be made available? According to the recent opinion of the First Circuit in Colon-Fontanez v. Municipality of San Juan, 2011 WL 4823189 (1st Cir. 2011), the answer is "no." I disagree.

In Colon-Fontanez, Nitza I. Colón–Fontánez appealed a district court's award of summary judgment to ger employer, the Municipality of San Juan, on her claims of disability discrimination and retaliation in violation of the Americans with Disabilities Act and retaliation in violation of Title VII of the Civil Rights Act. One of the grounds for Colón–Fontánez's appeal was that the district court erred in allowing the Municipality to admit summary charts and graphs that consisted of a condensed presentation of her extensive record of work attendance over her near two-decade period of employment.

According to the First Circuit,

the charts served as an appropriate presentation of "voluminous writings" that "cannot conveniently be examined in court," as required by Rule 1006. Further, the underlying materials on which the summary evidence was based were admissible in evidence pursuant to Fed.R.Evid. 803(6), as they consisted of attendance records kept in the course of the Municipality's regularly conducted business, according to a regular procedure, and for a routine business purpose.

Colón–Fontánez, however, claimed that the district court erred in admitting the summary charts and graphs because, inter alia, they were never produced to Colón during the discovery process. The First CIrcuit disagreed, concluding that

Rule 1006 provides that only the underlying documents, not the summaries themselves, must be produced to the opposing party. See Fed.R.Evid. 1006 ("The originals [of the contents of the writings], or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place."). The circuits recognize this well-settled principle. Air Safety, Inc. v. Roman Catholic Archbishop of Boston, 94 F.3d 1, 7 & n.14 (1st Cir. 1996); see also United States v. Bakker, 925 F.2d 728, 736 (4th Cir. 1991) ("The language of [Rule 1006]...simply requires that the [original voluminous] material be made available to the other party."); Coates v. Johnson & Johnson, 756 F.2d 524, 550 (7th Cir. 1985) (Rule 1006 requires that"“only the underlying documents, and not the summaries, must be made available to the opposing party"). Thus, Colón's first argument as to the summary charts is incorrect: the Municipality had no obligation to provide the charts to Colón.

Now, technically I agree with these courts that there is nothing explicitly in the language of Rule 1006 that forces the proponent of a summary to make the summary available for examination and/or copying before trial. But shouldn't such an obligation be inferred from the purpose of the Rule? The purpose of Rule 1006 is to allow the proponent to be able to present a concise summary of voluminous writings, recordings, or photographs at trial where it wouldn't be practicable to lug in and use all of those originals at trial. 

But if we don't force a proponent to make such a summary available to the opposing party before trial, then aren't we shifting that burden to the opposing party? If the opposing party is claiming that the summary is inaccurate/unrepresentative, wouldn't that opposing party now need to lug all the originals into court and sift through them at trial so that it can support its argument? Why shouldn't courts instead force proponents to produce summaries to opposing parties before trial so that this comparison can be made before trial?

-CM

The Hound Baskerville: 3rd Circuit Finds District Court Didn't Err In Failing To Hold Forfeiture By Wrongdoing Hearing

Federa Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for 

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

So, let's say that the prosecution files a motion in limine seeking to introduce statements under this forfeiture by wrongdoing exception. Does the trial court need to hold a pretrial evidentiary hearing before it deems the statements admissible? According to the recent opinion of the Third Circuit in United States v. Baskerville, 2011 WL 4850257 (3rd Cir. 2011), the answer is "no."

In Baskerville, 

Federal law enforcement officials enlisted the help of Kemo McCray...in their investigation of a New Jersey drug ring that included [William] Baskerville. McCray worked as a paid informant, making numerous controlled purchases of drugs from Baskerville between February and November of 2003. Based upon reports and recordings of his interactions with McCray, Baskerville was eventually arrested and charged with participating in a drug distribution conspiracy. Prior to Baskerville's trial on the drug conspiracy charges at which he was to testify, McCray was shot and killed. The Government then also charged Baskerville with ordering McCray's murder, alleging that through his attorney, Paul Bergrin..., Baskerville directed associates of his to kill McCray. 

After Baskerville was convicted, he appealed, claiming, inter alia, that the district court erred in not holding a pretrial evidentiary hearing in response to the prosecution's motion in limine seeking to introduce McCray's hearsay statements under Federal Rule of Evidence 804(b)(6). The Third CIrcuit disagreed, concluding that

The District Court did not abuse its discretion by failing to hold a full pretrial hearing because the process it followed adequately protected against improper admission of McCray's statements. The District Court requested a proffer to demonstrate that McCray's statements should be admitted subject to the necessary connection being made at trial. In response, the Government named several witnesses who would offer evidence that Baskerville sought McCray's murder to beat drug charges. Defense counsel only challenged their credibility, not the sufficiency of the showing the prosecution anticipated making at trial. Perhaps if the Government's proffer had given the District Court reason to doubt its ability to actually deliver this proof at trial, an evidentiary hearing may have been in order. However, under these particular circumstances, we cannot say that the District Court abused its discretion by proceeding without one.

The court also noted, "We have upheld this procedure with respect to the admission of co-conspirator statements under FRE 801(d)(2)(E) and find no convincing reason to treat statements like McCray's differently." 

(The court also pointed out that "[a]s the District Court noted, this Court has yet to decide the appropriate evidentiary standard for admitting statements pursuant to FRE 804(b)(6). We decline to decide that issue here. Under either a clear and convincing evidence standard or a preponderance of the evidence standard, the Government's showing sufficed.").

-CM

Law & Crit: Alyssa Rosenberg's Pop Culture and the Death Penalty Project

Alyssa Rosenberg is one of my favorite writers on the internet because she writes about two of my passions -- politics and pop culture -- in an idiosyncratic but accessible way. You can find some of her pieces in The Atlantic, but in the post I want to focus upon her work at ThinkProgress, and specifically her new Pop Culture and the Death Penalty Project. Basically, in the shadow of the Troy Davis execution, Rosenberg decided to "to pay some serious attention to the death penalty in popular culture." And her attention will consist of weekly blog posts on a series of books, movies, and TV shows that could provide serious fodder for a "Law & Film" or "Law & Literature" seminar.

Her first post was yesterday, and it concerns Richard Wright's incendiary novel, "Native Son," which I rank as one of the greatest legal novels of all time, in large part because of its authenticity, which is unsurprising given that Wright was inspired in writing the novel by a triptych of real world trials involving Robert Nixon, the Scottsboro Boys, and Leopold & Loeb. In her post, Rosenberg notes that the prosecutor in "Native Son" makes a deterrence-based argument in favor of the death penalty while Mr. Max at least in part makes a teleological argument against it:

The surest way to make certain that there will be more such murders is to kill this boy. In your rage and guilt, make thousands of other black men and women feel that the barriers are tighter and higher! Kill him and swell the tide of pent-up lava that will some day break loose, not in a single, blundering, accidental, individual crime, but in a wild cataract of emotion that will brook no control.

Rosenberg then concludes that "I think there’s some danger in making this utilitarian argument, because it leaves open the possibility that if we were to achieve racial equality and harmony, if our justice system worked perfectly, the death penalty might, perhaps, in the sweet by and by be permissible, a canker in the rose." I agree, and I think that the Supreme Court missed its chance to drive a stake through the heart of the death penalty in 1972 in Furman v. Georgia, 408 U.S. 238 (1972), by merely concluding that the death penalty as it was currently applied was arbitrary and capricious based upon factors such as race and class disparities.

Furman in effect placed a temporary moratorium on capital punishment, but, in movie terms, the Court left the death penalty open for sequels and its eventual resurrection 4 years later in Gregg v. Georgia, 428 U.S. 153 (1976), when the Court felt that the penalty's ills had been cured after some Frankensteinian tinkering. You can check out Rosenberg's post for all of her thoughts, and for further reading, I would recommend I. Bennett Capers, The Trial of Bigger Thomas: Race, Gender, and Trespass, 31 N.Y.U. Rev. L. & Soc. Change 1 (2006).

You can check out the schedule of Rosenberg's upcoming posts here. I'm especially excited about her future post on Stanley Kubrick's chilling "Paths of Glory." I still get shaken when thinking about the final scene as Kirk Douglas walks toward the camera as "The Faithful Hussar" plays in the background.

So, what film, TV show, book, and song on the death penalty would I recommend?

Movie: Errol Morris' "Mr. Death: The Rise and Fall of Fred A. Leuchter, Jr." I saw this doc on a twin bill with "American Movie" at the Music Box Theatre back in 1999, right before I went to law school. Leuchter was the the original creator of most execution equipment in this country and later co-opted by Holocaust deniers to "prove" that there were no gas chambers. Morris' doc was one of the main inspirations for me to decide writing about the law, and indeed, it led to my first legal article, A Death By Any Other Name: The Federal Government's Inconsistent Treatment of Drugs Used in Lethal Injections and Physician-Assisted Suicide, 17 J.L. & HEALTH 217 (2002-03).

TV Show: "The Good Wife" is about as good as it gets in terms of legal TV shows, and, especially given that it takes place in Chicago, I often find myself showing clips of it to my classes and even commenting about it on this blog (see, e.g., here and here). That said, I don't think that Alicia Florrick and company have handled (m)any death penalty cases. Before making "The Good Wife," however, co-creators Michelle King and Robert King made the one season wonder "In Justice," in which Kyle McLaughlin led a motley crew at an Innocence Project-type organization as they tried to free prisoners from death row. Especially good on the show was Jason O'Mara in the Kalinda Sharma investigator role (sometimes I get the feeling that the Kings are more interested in the investigators than the lawyers, which isn't necessarily a bad thing).

Book: I never could get into Scott Turow's legal fiction, but I enjoyed him as a talking head in ESPN's recent "Catching Hell." Maybe, then, Turow just works better for me in the nonfiction context because I dug the hell out of his "Ultimate Punishment: A Lawyer's Reflections on Dealing with the Death Penalty," which concern his time on Illinois's Commission on Capital Punishment, which led to a temporary moratorium on the death penalty in Illinois (which, unlike the Supreme Court, Illinois made permanent earlier this year). 

Song: Elvis Costello has been one of my favorites since I saw footage of him biting the corporate hand that fed him in 1977 on "Saturday Night Live" and aborting a performance of "Less Than Zero" to instead perform "Radio Radio." I don't know whether it was true, but the rumor was that Costello was banned from SNL for 12 years, making it a big event in 1989, when a 13 year-old version of myself saw him return and perform "Let Him Dangle." The song, inspired by the Derek Bentley case, contains lyrics such as these:

Well it's hard to imagine it's the times that
have changed
When there's a murder in the kitchen that is
brutal and strange
If killing anybody is a terrible crime
Why does this bloodthirsty chorus come round
from time to time
Let him dangle

-CM

Gross Out, Take 2: Texas Also Allows Experts To Testify About Defendant Doctors' Gross Negligence

In a post a couple of days ago, I noted that expert testimony that Dr. Conrad Murray acted with "gross negligence" was likely proper under California law even though it would be improper under the law of many (most?) other jurisdictions. After some further, research, I uncovered a Supreme Court of Texas opinion revealing that the such testimony would also be admissible under Texas law.

In Hall v. Birchfield, 718 S.W.2d 313 (Tex.App.-Texarkana 1986),

Kellie Birchfield was born on August 14, 1974, at Wadley Hospital in Texarkana to parents, Phillip J. Birchfield and Mary Jo Birchfield. The infant was two to three months premature and weighed two pounds, seven ounces. She was born with a congenitally small and functionless right eye. She was treated in the hospital nursery from the date of her birth until her discharge on November 14, 1974. Shortly afterwards, she was seen by an ophthalmologist, who diagnosed a RLF [retrolental fibroplasia] condition in her left eye. The condition...caused total loss of sight in her left eye. Scientific studies dating from the 1940's and 1950's suggest[ed] that a causal relationship exists between the administration of high levels of oxygen to premature infants and the occurrence of RLF.

In the Birchfields' action for medical malpractice against the treating physicians and the hospital, they presented expert testimony that the physicians acted with gross negligence, and the jury ultimately found for the plaintiffs. The Court of Appeals of Texas, Texarkana, later found on appeal that this testimony was properly admitted, concluding that

Tex.R.Evid, 704 permits testimony in the form of an opinion or inference otherwise admissible even though it embraces an ultimate issue to be decided by the trier of fact. This rule did not change the existing state of evidence law in Texas. Prior to codification of the Texas Rules of Evidence, Texas did not exclude opinions on the basis that they embraced an ultimate issue or invaded the province of the jury....However, the new rule did not open the door to matters which contain opinions as to points of law or questions of mixed fact and law. What constitutes negligence or malpractice on the part of a physician is a mixed question of law and fact that can only be determined by the trier of fact on basis of evidence admitted and instructions given by the court. A medical expert is not competent to express an opinion on what constitutes negligence or malpractice on the part of a physician....An expert witness can give information about standards of medical practice but should not express an opinion as to the conduct that might be expected of a hypothetical doctor similarly situated.

On appeal, however, the Supreme Court of Texas disagreed in Birchfield v. Texarkana Memorial Hosp., 747 S.W.2d 361 (Tex. 1987), concluding that

The Birchfields' expert witness testified on direct examination that Wadley's conduct constituted “negligence,” “gross negligence,” and “heedless and reckless conduct,” and that certain acts were “proximate causes” of Kellie's blindness. Contrary to the holding of the court of appeals, such testimony is admissible. TEX.R.EVID. 704. Fairness and efficiency dictate that an expert may state an opinion on a mixed question of law and fact as long as the opinion is confined to the relevant issues and is based on proper legal concepts.

In Smogor v. Enke, 874 F.2d 295 (5th Cir. 1989), however, the Fifth Circuit found that a district court did not abuse its discretion in applying Federal Rule of Evidence 704 to exclude expert testimony that a doctor acted with "gross negligence" despite the plaintiffs' citation to Birchfield.  

-CM

Wild West Virginia: SD WVa Deems Child Molestation Conviction Inadmissible Under Rule 609(a)(1)

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

So, let's say that a plaintiff brings tort and constitutional claims against defendants. And let's say that the plaintiff has a prior child molestation conviction. Should the defendants be able to use evidence of that conviction to impeach the plaintiff? According to the recent opinion of the United States District Court for the Southern District of West Virginia in Merritt v. Matheny, 2011 WL 4833043 (S.D.W.Va. 2011), the answer is "no."

Unfortunately, the court's opinion in Merritt is not chock full of details, but it appears that William Merritt brought battery and § 1983 violations claims against officials at Mount Olive Correctional Center based upon abuse that he suffered while incarcerated. 

Before trial, Meritt filed a motion in limine to preclude the defendants from impeaching him through his prior conviction for child molestation. In response, the defendants cited to Myers v. Hyatt, 1991 U.S.App. LEXIS 16517 (4th Cir.1991), in which the Fourth Circuit

summarily rejected the Plaintiff–Prisoner's argument that his trial counsel was ineffective and that evidence of Myers' prior child molestation conviction was so inflammatory that it unduly prejudiced the jury and rendered the verdict unreliable.

The United States District Court for the Southern District of West Virginia, however, noted that this opinion was unpublished and that "no reasoning exist[ed] for the [Fourth Circuit]'s summary rejection of the appellant's assertions in Myers," and it did "not find it to be persuasive to the inquiry at hand." Instead, the court concluded 

that under Rules 401 and 403, as well as under 609(a), the Plaintiff's convictions [we]re not relevant to his...tort and constitutional claims, and thus should be excluded. The convictions themselves [we]re not relevant to the Plaintiff's emotional damages. The convictions [we]re not crimes involving the Plaintiff's dishonesty or false swearing, and ha[d] low probative value under Rule 609 for impeachment purposes. Even if relevant in some way, under Rule 403, such evidence's prejudicial effect substantially outweigh[ed] any relevance of the conviction evidence.

The court thus granted Merritt's motion in limine.

-CM

Gross Out?: Was Expert Testimony That Conrad Murray Acted With "Gross Negligence" Objectionable?

Professor David H. Kaye at Penn State has posted Some clips from the Conrad Murray trial and asked whether testimony by experts that Dr. Murray's acts/omissions constituted "gross negligence" would have been ruled inadmissible if defense counsel objected to it. My conclusion: While the answer would be "yes" in many (most?) jurisdictions, the answer is "no" in California.

Federal Rule of Evidence 704 states that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Most states (43 after Georgia's new Comprehensive Revised Evidence Code takes effect) have state rules of evidence modeled after the Federal Rules of Evidence (although not all of these states have counterparts to Rule 704(b), and under Rule 704, it seems clear that expert testimony that Dr. Murray acted (or failed to act) with "gross negligence is inadmissible. Why?

Rule 704 does allow testimony on ultimate issues to be decided by the trier of fact, but it does not allow testimony that amounts to a legal conclusion. For instance, check out this language from Shahald v. City of Detroit, 889 F.2d 1543, 1547-48 (6th Cir. 1989):

An additional reason for our view on this issue is the fact that the expert's opinion as to the ultimate issue here amounts to a "legal conclusion." In the testimony excluded by the trial court, the expert would state to the jury that certain behavior by defendant officers amounts tonegligence under the law. This court has said:

Federal Rule of Evidence 704 permits a witness to testify in the form of an opinion or inference to an "ultimate issue to be decided by the trier of fact." However, "[i]t is not for the witness to instruct the jury as to applicable principles of law, but for the judge." 

Thus, under if Dr. Murray were being tried in most states, under Federal Rule of Evidence 704 or a state counterpart, an expert likely could not opine that Dr. Murray acted with "gross negligence."

California, however, is one of the few states that does not have an Evidence code modeled after the Federal Rules of Evidence. True, California does have California Evidence Code Section 805, which provides that

Testimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to decided by the trier of fact.

That said, look at the way that the Court of Appeal, Fourth District, Division 2, California, interpreted this language in Downer v. Bramet, 199 Cal.Rptr. 830 (Cal.App. 4 Dist. 1984):

While in many cases expert opinions that are genuinely needed may happen to embrace the ultimate issue of fact (e.g., a medical opinion whether a physician's actions constitute professional negligence), the calling of lawyers as “expert witnesses” to give opinions as to the application of the law to particular facts usurps the duty of the trial court to instruct the jury on the law as applicable to the facts, and results in no more than a modern day “trial by oath” in which the side producing the greater number of lawyers able to opine in their favor wins." (emphasis added).

Moreover, the 2nd District Court of Appeal (Los Angeles) has cited to the language a few times, most recently in Mora v. Big Lots Stores, Inc., 124 Cal.Rptr3d 535 (Cal.App. 2 Dist. 2011). Therefore, it seems like the testimony in the Murray trial was admissible (although I acknowledge that I haven't come across an opinion applying this reasoning in a criminal case).

-CM

Don't Be Tardy: Western District Of Michigan Finds State Court Properly Deemed Witness For Prosecution "Unavailable"

Federal Rule of Evidence 804(a)(5) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

Meanwhile, Michigan Rule of Evidence 804(a) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown. (emphasis added)

So, when are attempts to procure a declarant's attendance reasonable but not an exercise in due dilligence? That question was not answered by the United States District Court for the Western District of Michigan in its recent opinion in Smith v. McQuiggin, 2011 WL 4824492 (W.D.Mich. 2011), but it does point us toward a partial answer.

In McQuiggin, Keith Elroy Smith, a Michigan state prisoner in the custody of the Michigan Department of Corrections, filed a petition for writ of habeas corpus under  28 U.S.C. § 2254. A magistrate judge recommended that the habeas petition be denied and dismissed with prejudice, and that a certificate of appealablity be denied. The Western District of Michigan thereafter agreed.

One of the grounds upon which Smith habeas relief was the introduction of the former testimony of Richard Gentry, an eyewitness, at Smith's trial for first-degree premeditated murder and related crimes. Gentry did not testify at trial, but the trial court deemed him unavailable and allowed for the admission of Gentry's testimony during a preliminary examination pursuant to Michigan Rule of Evidence 804(b)(1).

In his appeal in the Michigan state court system, Smith claimed that the prosecutor failed to meet its due diligence obligation because its attempts to locate Gentry were "tardy and incomplete." In support of his argument, Smith cited to, inter alia, People v. James, 481 N.W.2d 715 (Mich.App. 1992), in which the Court of Appeals of Michigan found that the prosecutor's efforts were tardy because it had no contacts with the witness over three and one-half years between the time of the preliminary examination and the time of trial. The court, however, found this citation inapposite, noting that there was only a three month gap between Gentry's preliminary examination and Smith's trial and that the evidence indicated that Gentry planned to testify at Smith's trial until the day of trial.

In later ruling against Smith, the Western District of Michigan simply held that "[i[t is unnecessary to reiterate here the well-reasoned opinion of the Michigan Court of Appeals."

-CM