EvidenceProf Blog

Be An Original: 5th Circuit Finds Computer Printout Of Insurance Policy Was An "Original" Under Rule 1001(3)

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

That said, Federal Rule of Evidence 1001(3) provides that

An "original" of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original".

It was this last sentence of Rule 1001(3) that proved fatal to the defendants' Best Evidence Rule appeal in Time Ins. Co. v. Estate of White, 2011 WL 5105790 (5th Cir. 2011).

In Estate of White,

Defendants–Appellants, Patsy White and the estate of her deceased husband, Larrye J. White, appealed] the district court's grant of summary judgment and entry of declaratory judgment in favor of Plaintiff–Appellee, Time Insurance Co...., with respect to its obligations under a health insurance policy. 

In reaching its conclusion, the district court relied upon evidence produced by Time Insurance Company. Specifically, Time Insurance Company produced a computer printout of a policy numbered 0058461251, which was the insurance policy allegedly issued to Larrye J. White. 

After the entry of declaratory judgment against them, the defendants appealed, claiming that the computer printout violated the Best Evidence Rule. The Fifth Circuit disagreed, concluding that

"To prove the content of a writing,...the original writing...is required...." Fed.R.Evid. 1002. "If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an 'original.'" Fed.R.Evid. 1001(3). Time provided ample evidence that its copy of the insurance policy, and the faxed application, riders, and acceptance of offer form, all signed by the Whites, were maintained by its computers in the regular course of business and are inalterable. Accordingly, the documents produced by Time are originals, and are admissible to prove their contents.

-CM

One Mississippi: Court Of Appeals Of Mississippi Applies Ridiculous Exception To Rule 404(b) In Child Molestation Case

Like its federal counterpart, Mississippi 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 that he acted 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.

In other words, under Rule 404(b), evidence of past rapes by a defendant charged with rape would be inadmissible to prove, "Once a rapist, always a rapist." And evidence of past acts of child molestation would be inadmissible tor prove, "Once a child molester." That said, Federal Rule of Evidence 413 and Federal Rule of Evidence 414, passed as part of the Violent Crime Control and Law Enforcement Act of 1994, do allow for the admission of evidence of past rapes and acts of child molestation to prove propensity and conformity. Mississippi does not, however, have counterparts to Rules 413 and 414? So why do Mississippi courts routinely allow for the admission of evidence of past rapes and acts of child molestation by defendants? Let's check out the recent opinion of the Court of Appeals of Mississippi inYoung v. State, 2011 WL 5027251 (Miss.App. 2011).

In Young, Johnny R. Young Jr. was convicted of three counts of sexual battery of a minor based upon acts that he allegedly committed against his eight-year-old daughter, "Cindy." At trial,

Anna Smith, Young's half-sister, presented testimony that twenty years ago, when Young was fifteen years old and Anna was five years old, Young had Anna take off her pants, removed his pants, and bounced her on his leg, rubbing his penis against her. Anna's mother, who was also Young's step-mother, walked in and witnessed this event. Young was sent to Meridian, Mississippi, for several months to receive mental-health treatment. 

After he was convicted, Young appealed, claiming, inter alia,

that the admission of this evidence was error, especially as it "was too remote in time and different from the events alleged by [Cindy]," and that the State "failed to establish the alternate basis for the admissibility of the evidence."

The Court of Appeals of Mississippi, however, noted that while such evidence would ordinarily be inadmissible under Mississippi Rule of Evidence 404(b), the Supreme Court of Mississippi carved out an exception to this Rule in Derouen v. State, 994 So.2d 748 (Miss. 2008), in cases that involve the sexual assault of a minor, stating:

Sex crimes against children are furtive, secret events usually lacking evidence other than the conflicting testimony of the defendant and the victim. The only viable proof of motive, intent, plan, knowledge, identity or absence of mistake or accident may be the pattern of abuse suffered by others at the hands of the defendant.

In an accompanying footnote, the Court of Appeals noted that

The Derouen court also stated that it was "time for this Court to consider amending the Mississippi Rules of Evidence by way of the adoption of rules modeled after Federal Rule of Evidence 413 and 414" and referred the issue to the Rules Committee "for study and recommendation to the en banc court." 

My conclusion: Maybe it's time that Mississippi actually adopts counterparts to these Rules rather than operating under the ridiculous pretense that evidence of prior rapes/child molestation is actually admissible for a permissible purpose under Rule 404(b). According to the Court of Appeals, the admission of Anna Smith's testimony was permissible because the trial court gave the jury the following instruction:

The testimony of the [S]tate's witness, [Anna Smith], which is not part of charged conduct in this case, is to be used for the purpose of establishing motive, intent, plan, knowledge, identify, or absence of mistake or accident on the part of the defendant JOHNNIE R. YOUNG and should not be considered as proof of the defendant's character or to show that he acted in conformity therewith.

This instruction is laughable because obviously Smith's testimony was admitted to prove, "Once a child molester." I certainly wasn't admissible to prove that Young had knowledge, i.e., knew how to commit child molestation. It wasn't admissible to prove common plan or scheme because a 20 year-old act of sexual abuse against a younger sister and a recent act of child molestation against a daughter are not at all similar. You can tick off each of the listed purposes in Rule 404(b) and realize that none of them make sense in the context of Young's case. The way I see it, Derouen is similarly nonsensical and should be overruled by the Supreme Court of Mississippi.

-CM

You Complete Me: Court Of Appeals Of Hawai'i Finds No Confrontation Clause Problem With Rule Of Completeness

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

Meanwhile, like its federal counterpart, Hawai'i Rule of Evidence 106, the rule of completeness, provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

So, let's say that a criminal defendant admits part of a testimonial statement by a nontestifying declarant under an exception to the rule against hearsay and the prosecution then seeks to other parts of that testimonial statement under the rule of completeness. Can the prosecution do so consistent with the Confrontation Clause? According to the recent opinion of the Court of Appeals of Hawai'i in State v. Brooks, 2011 WL 5029439 (Hawai'i App. 2011), the answer is "yes."

In Brooks, Ray Brooks and Sistine Rangamar were charged with the murder, kidnapping, and robbery of Ted Arifuku. Shortly before his arrest, Rangamar gave a statement to the police in which he admitted that he had assaulted, restrained, and robbed Arifuku but also asserted that his actions had been pursuant to a plan devised by Brooks and implicated Brooks in Arikufu's murderr. Rangamar thereafter committed suicide before trial.

Brooks then

filed a pre-trial motion in limine, seeking authorization to introduce at trial selected portions of Rangamar's statement that incriminated Rangamar. Brooks sought to introduce these self-incriminating portions of Rangamar's statement to bolster his claim that Rangamar was solely responsible for the offenses committed against Aikufu against Arifuku.

The State countered

that if Brooks was allowed to introduce the self-incriminating portions of Rangamar's statement, then the State should be allowed to introduce other portions of the statement that incriminated Brooks, pursuant to the "rule of completeness"....Brooks countered that the self-incriminating portions of Rangamar's statement were admissible as statements against penal interest...but that the admission of the portions of Rangamar's statement that incriminated Brooks would violate Brooks's constitutional right of confrontation under Crawford v. Washington.

The Circuit Court ultimately concluded

that the self-incriminating portions of Rangamar's statement that Brooks sought to introduce, when taken in isolation, were "likely to mislead the jury and to distort the content and context of Rangamar's entire statement." The Circuit Court also concluded that "Crawford does not bar the introduction of evidence required under HRE Rule 106."

At trial, Brooks introduced parts of Rangmar's statement, and the prosecution admitted the other parts of Rangmar's statement, with Brooks eventually being convicted of manslaughter, kidnapping, and robbery. After he was convicted, Brooks appealed, claiming that the CIrcuit Court's evidentiary ruling was erroneous.

The Court of Appeals of Hawai'i found no error, concluding that

Crawford did not address the rule-of-completeness situation presented by this case. In Crawford, it was the prosecution that, in the first instance, introduced the testimonial hearsay statement....Here, it is Brooks that introduced selected portions of Rangamar's testimonial hearsay statement and then invoked Crawford in an attempt to prevent the State from placing Rangamar's statement in context and presenting an accurate picture of Rangamar's statement to avoid misleading the jury.

The right of confrontation is not absolute, and we conclude that it cannot be used to distort and subvert the truth-seeking function of the criminal trial process by authorizing the admission of evidence in a manner that would mislead the jury....Brooks sought to introduce selected portions of Rangamar's statement to support his claim that Rangamar acted alone and was solely responsible for the crimes committed against Arifuku. However, permitting Brooks to use Rangamar's statement in this fashion would have misled the jury since Rangamar's statement also asserted that Rangamar acted pursuant to a plan devised by Brooks and implicated Brooks in Arifuku's murder. The Circuit Court properly ruled that if Brooks decided to introduce selected portions of Rangamar's statement, the State would be entitled to introduce other portions of the statement necessary to prevent the jury from being misled.

The court then found support for its conclusion, noting that

It appears that the overwhelming majority of jurisdictions that have addressed the issue presented in this appeal have held that Crawford does not preclude the application of the rule of completeness when a defendant selectively introduces portions of a testimonial hearsay statement.

-CM

Law & Crit, Take 2: "The Green Mile" & The Death Penalty

I can vividly remember the announcement of Stephen King trying his hand at the serialized novel with "The Green Mile" back in 1996. Two things especially excited me about the announcement. Back in grade school, I had done a report about the invention of the cliffhanger. In those pre-internet days, I remember the joy I experienced upon uncovering the needle in the Dewey Decimal system when I learned that the original cliffhanger was an actual cliffhanger: Thomas Hardy published "A Pair of Blue Eyes" in serialized fashion in Tinsley's Magazine from 1872-1873, and, at the end of one serial, Hardy chose to leave one of the main protagonists, Henry Knight, literally hanging off a cliff staring into the stony eyes of a trilobite. I wanted to see the master of horror tackle the format.

Second, my favorite Stephen King book was "Different Seasons." "Different Seasons" was actually a collection of four Stephen King novellas, and part of the reason that I think I liked it the most was that it was the most cinematic of King's works. Indeed, three of the novellas were eventually turned into pretty good movies: "The Body" became the Rob Reiner classic, "Stand by Me," "Apt Pupil" became Bryan Singer's creepy movie of the same name, and "Rita Hayworth and Shawshank Redemption" became Frank Dararabont's Oscar-nominated and slightly less awkwardly-titled "The Shawshank Redemption." The last of these was my favorites, and "The Green Mile" promised to return me to King doing a period prison drama, which whetted my appetite. Every month from March to August in 1996, I would go to the local Waldenbooks and pick up the latest entry in the series, hanging on each new cliff that King threw at me.

That said, when it was later announced that Dararabont would be adapting "The Green Mile" as a feature length film, I was perplexed. Not because I disliked "The Shawshank Redemption." I loved it and like many others caught it several times during its constant loop on TNT. But I was confused because more than any other King work (except maybe "The Dark Tower"), it seemed to scream out for the miniseries treatment a la "It" or "The Stand" given its serialized nature. In the end, though, I don't know if it was the format that dulled the movie version of "The Green Mile" for me as much as the fact that it was too on the nose. "The Shawshank Redemption" was a bit on the nose as well, but that doesn't matter when you have Morgan Freeman giving the best voiceover narration in the history of cinema.

Dararabont later turned his adaptation of King's "The Mist" into a post-9/11 allegory (much like Ronald D. Moore's "Battlestar Galactica"), which elevated my appreciation of the movie (and freaked me out). But his adaptation of the "The Green Mile" didn't really dig beneath the surface of King's book. It's a movie about the death penalty, but it's not much more than a story about the execution of a wrongfully convicted man with magical powers. Like Dararabont's "The Walking Dead," it's a fun enough ride but lacking in (figurative) bite.

Today, in the second of her posts in "The Pop Culture and Death Penalty Project," Alyssa Rosenberg writes about the movie version of "The Green Mile," and, as in her first post (which I discussed here) I  think that she raises some good points. Specifically, she argues that the movie is

not particularly useful as a basis for a real-world conversation about the death penalty. People who perform executions may have the experience of helping to kill innocent people — we know some of them certainly have. But they’re deeply unlikely to execute people who are not only innocent but honest-to-god saintly miracle workers who absolve them on the way to the electric chair, telling them, as John tells Paul, "You tell God the father it was a kindness you done."

Rosenberg does point out, though, that "the movie is an intermittently powerful allegory about responsibility, and the way we distance ourselves from culpability and full understanding of what we're doing." I think that this is a fair point, with the key word being "intermittently." But what the movie is clearly not is a meditation on the death penalty. Indeed, some have claimed that "The Green Mile," is politically conservative because it does "not challenge 'the basic categories through which we judge murderers and assess penalties.'" Paul Schiff Berman, When the State Kills:  Capital Punishment and the American Condition. By Austin Sarat. Princeton: Princeton University Press, 2001. PP. 324., 102 Colum. L. Rev. 1129, 1166 (2002).

I'm not sure that I would paint "The Green Mile" with such a broad brush, but I see the point. When you have a death penalty movie which asks us to question the death penalty as applied to an innocent (and magical) man, the underlying assumption is that the death penalty is defensible as applied to the guilty. In her post, Rosenberg explains her position

that it makes more sense to set the standard for conversation about the death penalty that it should be abolished in all circumstances, even in the astonishingly unlikely chance that we achieve a perfectly just criminal justice system that has no clear disparate impact on people of any rage, gender, class, or creed.

"The Green Mile," as a movie about the wrongfully convicted, doesn't deal in this reality. Indeed, as a movie about the indisputably wrongfully convicted, it doesn't trade in anything close to reality. According to Gregg Mayer in The Poet and Death: Literary Reflections on Capital Punishment Through the Sonnets of William Wordsworth, 21 St. John's J. Legal Comment. 727 (2007),

As discussed by Professor David Dow:

God will want to know how (Edgecomb) could have killed one of His miracles, and what will (Edgecomb) say? That he was just doing his job? And yet, though he must be prodded by his assistant to give the order to carry out the execution, in the end (Edgecomb) does so. He shuffles over to Coffey and clandestinely shakes his hand. Then he gives the order, and Coffey is electrocuted. 

Mayer then concludes that "Edgecomb chooses societal order over justice, and risks his own spiritual self for the sake of the state." But this is not the Solomonic choice that most involved in the criminal justice system must make. Prosecutors often prosecute death penalty cases when they know that defendants might be innocent. If they know that the defendant is not guilty, they won't (or at least shouldn't) prosecute the defendant. Jurors often sentence defendants to die even in cases based solely on circumstantial evidence. But they don't convict or sentence defendants they know to be innocent. If the Supreme Court thinks that a defendant might be innocent, it might still refuse to give him relief, as with the recent case of Troy Davis that led to Rosenberg's project. But if the Supreme Court knows that a defendant is innocent, it will grant him relief, as in Chambers v. Mississippi.   

A meditation on the death penalty would deal with doubt. Doubt about whether the death penalty can ever be justified. Doubt about whether the defendant was really guilty. I want to see these movies. I want to see a juror, a judge, a prosecutor, an executioner questioning whether he did the right thing, like Meryl Streep in "Doubt." "The Green Mile" is not that movie. 

-CM

Undiagnosed: Court Of Appeals Of Iowa Finds Granddaughters' Statements Inadmissible Under Rule 5.803(4)

Like its federal counterpart, Iowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for 

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

So, let's say that four granddaughters tell a forensic interviewer and a child protective worker that their grandfather physically and sexually abused them. Would these statements qualify as statements for purposes of medical diagnosis or treatment? According to the recent opinion of the Court of Appeals of Iowa in State v. Moore, 2011 WL 4950180 (Iowa App. 2011), the answer is "no," at least based upon the facts before it.

In Moore, the facts were as stated above, with Jerry Moore being convicted of two counts of second-degree sexual abuse, one count of indecent contact with a child, and four counts of child endangerment. Before Jerry Moore was charged, David Moore, Jerry's grandson, and his wife Kandice,

invited [Jerry]'s granddaughters to their house the following week. The girls spent the night and told David and Kandice they were being sexually and physically abused by their grandfather. Kandice called the Iowa Department of Human Services (Department) the next morning, on February 14, and reported the abuse. A child protective worker with the Department and a police officer arrived at David and Kandice's house later that afternoon. All of the children, except A.M., reported that Moore had touched them inappropriately and hit them. They also said Moore showed them pictures of naked women and people having sex on the computer and in magazines.

Later,

Each of the girls was interviewed by a forensic interviewer at a child advocacy center. [At trial,] [o]ver defense counsel's hearsay objections, the interviewer was allowed to testify about statements the children made to her during the interviews, as were the child protective worker and police officer that interviewed the children at the beginning of the case. 

The district court allowed for the admission of the granddaughters statements to the child protective worker, the forensic interviewer, and others as prior consistent statements under Iowa Rule of Evidence 5.801(d)(1)(B). In response to Jerry Moore's appeal after he was convicted, however, the State acknowledged that these statements were improperly admitted under this Rule.

The State claimed, however, that these statements alternately could have been admitted as statements made for purposes of medical treatment or diagnosis under Iowa Rule of Evidence 5.803(4). The Court of Appeals of Iowa quickly disagreed, curtly concluding, "We question this premise, especially with respect to the forensic interviewer and the child protective worker, as there was minimal evidence showing the children's statements to these witnesses satisfied the two-part test for admissibility detailed in State v. Tracy, 482 N.W.d 675, 681 (Iowa 1992).

In Tracy, the Supreme Court of Iowa had held that statements are only admissible under Iowa Rule of Evidence 5.803(4) if two conditions are satisfied:

"first the declarant's motive in making the statement must be consistent with the purposes of promoting treatment; and second, the content of the statement must be such as is reasonably relied on by a physician in treatment or diagnosis."

-CM

The Privilege Was Mine: Eastern District Of Virginia Finds Rule 612 Refreshment Didn't Vitiate Privilege

Federal Rule of Evidence 612 states that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

So, let's say that a party uses privileged documents to refresh the recollection of a witness prior to a deposition. Does the party now need to produce those documents to the adverse party? If you want to know the answer, the recent opinion of the United States District Court for the Eastern District of Virginia in Brown v. Tethys Bioscience, Inc., 2011 WL 4829340 (E.D.Va. 2011), is probably your best bet.

The facts in Brown were as stated above, with the plaintiffs served a subpoena duces tecum issued by this Court on a former executive for the defendant, ordering him to produce "any and all documents [he] brought to [his] deposition taken in this case on March 24, 2011, in Richmond, Virginia." In response, the defendant moved to quash the subpoena pursuant to Federal Rule of Civil Procedure 45, claiming that two documents that the former executive brought to his deposition — the "October 11, 2010 E–Mail" and the "October 12, 2010 Document" — wre protected by the attorney-client privilege and/or the work product doctrine. 

In addressing this issue, the Eastern District of Virginia initially noted that

Courts have developed the following three-part test to determine whether otherwise privileged documents should be produced under Rule 612 based on their use by a deponent to refresh his or her recollection prior to the deposition: "(1) a witness must use a writing to refresh his or her memory; (2) for the purpose of testifying; and (3) the court must determine that, in the interest of justice, the adverse party is entitled to see the writing."

The court then noted that

Factors to consider when making this determination include the following: (1) the witness's status; (2) the importance of the witness's testimony to the case; (3) when the events took place; (4) when the documents were reviewed; (5) the number of documents reviewed; (6) whether the witness prepared the documents reviewed; (6) what type of privilege applies to the documents; (7) whether the documents were previously disclosed; and, (8) the existence of credible concerns regarding manipulation, concealment, or destruction of evidence.

And, according to the court, there was a an insurmountable problem for the plaintiffs: They merely claimed that the former executive "brought several documents in a folder to the deposition," that he "reviewed the documents in preparation for the deposition," and that he referred to and reviewed the documents "while formulating a response to questions." According to the court: 

Because they fail to specify any conduct regarding the two documents subject to challenge here, these conclusory allegations insufficiently meet the burden under Rule 612. Rule 612 provides access "'only to those writings which may fairly be said in part to have an impact upon the testimony of the witness.'"...Plaintiffs have failed to sufficiently demonstrate that Funk reviewed the October 11, 2010 E–Mail and the October 12, 2010 Document while testifying or in preparation for testifying. This failure renders Rule 612 inapplicable.

Moreover, the Eastern District of Virginia found that

Even if the Court were to assume that Funk reviewed the October 11, 2010 E–Mail and the October 12, 2010 Document in preparation for testifying, the Court, in its discretion, would not require the production of the two documents. Considering the information contained in these two documents, the need to fully examine Funk's testimony, the policies underlying the privileges at issue, and the other factors listed above, the Court concludes that the balance weighs against requiring the production of these two documents.

-CM

How To Be Elusive: Colorado Court Of Appeals Finds Trial Court Erred In Granting New Trial Based On Jury Misconduct

Similar to its federal counterpart, Colorado Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

So, let's say that a defendant is convicted of vehicular eluding. And let's say that several jurors had looked at or heard a dictionary definition of "elude" during deliberations. Can the defendant present juror affidavits concerning what happened, and will those affidavits be sufficient to award the defendant a new trial? Those were the questions addressed by the Colorado Court of Appeals, Division II, in its recent opinion in People v. Holt, 2011 WL 4837640 (Colo.App. 2011).

In Holt, the facts were as stated above, with the vehicular eluding statute in Colorado stating that

Any operator of a motor vehicle who the officer has reasonable grounds to believe has violated a state law or municipal ordinance, who has received a visual or audible signal such as a red light or a siren from a police officer driving a marked vehicle showing the same to be an official police, sheriff, or Colorado state patrol car directing the operator to bring the operator's vehicle to a stop, and who willfully increases his or her speed or extinguishes his or her lights in an attempt to elude such police officer, or willfully attempts in any other manner to elude the police officer, or does elude such police officer commits a class 2 misdemeanor traffic offense.

The trial court granted the defendant's motion for a new trial, but the Court of Appeals of Colorado later reversed. The Colorado Court of Appeals noted that "the trial court found that a member of the jury brought a dictionary definition of 'elud'” or 'eluding' into the jury room and shared it with several jurors." And, according to the court, "[a] juror's looking up of a dictionary definition of a crime of which the defendant has been charged is improper and affidavits concerning that fact are admissible under CRE 606(b)." 

But according to the court, the problem for the defendant was that

The affidavits d[id] not...disclose what definition the jurors considered, or whether the definition was inconsistent with the language of the vehicular eluding statute. Defendant bears the burden of proving that the extraneous information posed a reasonable possibility of prejudice to him...By failing to provide the content of the definition, defendant failed to meet his burden of proving prejudice. The trial court, therefore, erred by concluding that the definition presented to the jury was prejudicial and ordering a new trial based on that conclusion.

Indeed, the court noted that

At the hearing on the motion for a new trial, the prosecution presented two dictionary definitions of "elude" to the trial court, which indicate that eluding involves "skill" or "trickery." If the jury had viewed those definitions, it may have added those concepts as additional elements to be proven, increasing the prosecution's burden. See Wiser, 732 P.2d at 1143 (holding that the defendant was not prejudiced by the jury's exposure to the dictionary definition of "burglary" because the definition referenced theft, which was not an element the prosecution was required to prove).

-CM