EvidenceProf Blog

Best Of Everything: Bankruptcy Court Finds Best Evidence Rule Doesn't Apply In Bankruptcy Case

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.

So, let's say that a debtor in a bankruptcy action testifies that she never made a contribution to an IRA and produces account statements for that IRA that cover a certain stretch of time but does not produce statements that cover another stretch of time. Does the testimony violate the Best Evidence Rule? According to the recent opinion of the United States Bankruptcy Court for the District of Massachusetts in In re LeClair, 2011 WL 5282605 (Bkrtcy.D.Mass. 2011), the answer is "no."

In LeClair, David M. Nickless, Chapter 7 trustee, objected to debtor Betty LeClair's claimed exemption in an annuity held for her benefit by the John Hancock Life Insurance Company.

The trustee d[id] not dispute that the funds used to purchase Ms. LeClair's annuity came directly to John Hancock from her IRA at Citi Smith Barney. Rather, he allege[d] that the funds used to purchase the annuity were deposited into the IRA within five years of the debtor's bankruptcy filing and thus, according to the limitations set forth in the statute, Ms. LeClair's exemption [wa]s limited to $1913.66 which is 7% of her earned income for that period.

That five year period ran from from June 25, 2005 through June 24, 2010. LeClair testified that she never made a contribution to the IRA at any time, prompting Nickless' objection that this testimony violated Federal Rule of Evidence 1002. Nickless pointed out that while "LeClair was able to produce account statements showing no contributions to the IRA between November 30, 2005 and July 15, 2008 when the annuity was purchased, she could produce no records for the period from June 25, 2005 through November 29, 2005." Nickless claimed that these statements were the "best evidence" of whether LeClair contributed to the IRA and LeClair's testimony thus violated the Best Evidence Rule.

The United States Bankruptcy Court for the District of Massachusetts correctly disagreed, concluding that

The trustee misperceives the rule. Ms. LeClair's testimony was not elicited to prove the contents of a writing; she was testifying to a particular fact known to her, namely the history of the IRA she inherited from her first husband. "[A]s the advisory committee note makes clear, Rule 1002 applies not when a piece of evidence sought to be introduced has been somewhere recorded in writing but when it is that written record itself that the party seeks to prove."..."No evidentiary rule...prohibits a witness from testifying to a fact simply because the fact can be supported by written documentation."...Despite its nickname, the rule does not require that a writing be deemed better evidence than oral testimony or that when written evidence exists, it must be presented instead of oral testimony....The absence of a paper trail to establish that no contributions to the IRA occurred between June and November 2005 does not render Ms. LeClair's own testimony on this point inadmissible.

-CM

The Prisoner: United States District Court for the District Of Idaho Refuses To Appoint Expert In Prisoner Case

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

The word "may" is the key word in this Rule as courts are under no obligation to appoint experts except in some cases involving scientific evidence or complex issues. So, if a prisoner sues a correctional facility, claiming that its officials were deliberately indifferent to his serious medical needs, does the court need to appoint an expert under Rule 706(a)? According to the recent opinion of the United States District Court for the District of Idaho in Orr v. Valdez, 2011 WL 4239223 (D.Idaho 2011), the answer is "no."

In Valdez, the facts were as stated above, with Dennis A. Orr bringing an action against doctors and others at the Idaho Correctional Center, claiming that members of the prison medical staff were deliberately indifferent to his back, leg, and knee pain and other medical problems. After bringing the action, Orr requested that the court appoint an expert to assist him in presenting his claims. 

In response, the court initially noted that "[t]he in forma pauperis statute, 28 U.S.C. § 1915, does not authorize federal courts to appoint or authorize payment for expert witnesses for prisoners or other indigent litigants." The court then noted that

A federal court may appoint an expert witness under Federal Rule of Evidence 706(a), with the expert's fees to be allocated among the parties "in such proportion and at such time as the court directs." Fed.R.Evid. 706(b). Under this rule, experts are properly appointed where complex scientific issues are involved, such as determining what the concentration levels of environmental tobacco smoke (ETS) are in a prison and determining the health effects of ETS on nonsmoking prisoners....However, courts have recognized that "[r]easonably construed, Rule 706 does not contemplate the appointment of, and compensation for, an expert to aid one of the parties."

Applying this logic, the court concluded that

At issue in this matter is whether prison medical staff were deliberately indifferent to Plaintiff's back, leg, and knee pain and other medical problems. The issue of deliberate indifference regarding these medical issues is not so complicated and difficult that an expert is required to present or prove the case. Moreover, the facts at issue in this matter are not scientifically complex....The Court will not appoint a Rule 706 expert witness.

-CM

 

Article Of Interest: Jessica West's 12 Racist Men: Post-Verdict Evidence of Juror Bias

Federal 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 that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Many (myself included) have tried to argue that there should be an exception to Rule 606(b), whether constitutional or otherwise, in cases of jurors expressing racial, religious, or other bias during deliberations. Advocates, however, usually run into a brick wall. That wall? Justice O'Connor's opinion in Tanner v. United States, 483 U.S. 107 (1987). Tanner is the paradigmatic case of jurors gone wild: Jurors got drunk during the deliberations. They used drugs. They sold drugs. They slept. And they couldn't testify to any of it after the verdict was entered pursuant to Rule 606(b).

When the defendants claimed that application of Rule 606(b) to preclude such testimony violated their Sixth Amendment right to an unimpaired jury, Justice O'Connor's retort was that this right was

protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire. Moreover, during the trial the jury is observable by the court, by counsel, and by court personnel....Moreover, jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict....Finally, after the trial a party may seek to impeach the verdict by nonjuror evidence of misconduct. 

Jessica West, a Visiting Researcher at Yale Law School, uses Justice O'Connor's retort as the launching point for her terrific recent article, 12 Racist Men: Post-Verdict Evidence of Juror Bias, 27 Harv. J. on Racial & Ethnic Just. 165 (2011) (forthcoming). West's objective is two-fold: She seeks to reveal why the mechanisms listed by Justice O'Connor are currently inadequate and explain how they can be recalibrated to achieve front-end justice given that Tanner seems to preclude peering behind the curtain on deliberations after a verdict has been entered. Or, as she describes it, while the mechanisms listed by Justice O'Connor

contain the potential to preempt many instances of juror bias or misconduct, these mechanisms have failed to deliver on the promise of providing adequate protections from racial bias in the deliberative process. As a result, claims of deliberative bias have proliferated while courts and litigants have struggled with the limitations imposed by Rule 606(b). Rather than discard the evidentiary rule, however, another possibility is to address the deficiencies in the pre-deliberative process, in an effort to achieve the promise set out in Tanner.

In Section II of the article, West

•traces the history of Rule 606(b), beginning with Vaise v. Delaval, continuing with early Supreme Court cases such as Mattox v. United States and McDonald v. Pless, and concuding with the competing House and Senate versions of the Rule;

•notes the interests protected by Rule 606(b), such as facilitating open debate during deliberations, ensuring the finality of verdicts, and securing the privacy of jurors; and

•engages in a detailed discussion of Tanner and the contemporary interpretation of the Rule.

In Section III, West then 

•ticks off several disturbing examples of juror bias during deliberations;

•catalogues the various attempts that courts have made to allow for the introduction of evidence of such bias under either an evidentiary exception or a Constitutional trump; and

•cautions that a broad exception to Rule 606(b) might cause more problems than its solves.

Section IV is then the heart of the article, in which West assesses the existing pretrial mechanisms Justice O'Connor flagged as protecting the Sixth Amendment right to an unimpaired jury and explains how they could be bolstered.

Voir Dire

West notes that even in cases in which courts allow inquiry during vior dire into the racial, religious, and other biases of jurors, "courts and litigants ineffectively utilize voir dire to discern the existence of juror bias." Indeed, "the procedures used during voir dire and the psychological atmosphere in which it takes place are virtually guaranteed to inhibit rather than facilitate [juror] self-disclosure." The solution?:

According to empirical studies, in order for jurors to disclose meaningful information on biases, voir dire must "facilitate juror self-disclosure." This type of voir dire requires moving beyond the rudimentary, sterile, one-way, demographic-focused set of questions that currently substitute for real juror inquiry on bias. Instead, all participants, lawyers, courts, and jurors must encourage the engagement of jurors in dialogue regarding prejudice and bias in an unhurried, relaxed, and non-judgmental environment. When conducted effectively, voir dire can assist jurors in making meaningful self-disclosures as to their biases.

And, as West points out, such voir dire has the potential not only to weed out biased jurors but also to "'influence prospective jurors by reminding them of the importance of rendering judgments free from prejudice.'"

Jury Instructions

West laments that pattern jury instructions do not, inter alia, "expressly instruct jurors that, though racial and other biases may be socially pervasive, biases must be set aside in the determination of the matter before them and that an awareness and discussion of the potential for bias can help them avoid bias." A major problem with this omission is the fact that "[s]tudies indicate that judicial instructions can impact whether or not jurors exhibit racial bias during deliberations."

Thus, West proposes a jury instruction on this issue as well as the ingenious idea for an instruction regarding 

the existence of the Rule 606(b) evidentiary prohibition and that evidence of jury deliberations, statements, or processes is not admissible.Not onl ywould an instruction along these lines promote the goal of juror deliberative candor by informing jurors that their deliberations will be secret, such an instruction also would encourage jurors to report concerns about misconduct prior to deliberations since jurors would be aware of the prohibition on the post-verdict admission of the evidence.

Jury Diversity

West observes that, inter alia, "the presence of minority group jurors 'may inhibit majority group members from expressing prejudice, especially if the defendant is from the same group as the minority group jurors.'" And yet, she identifies two significant hindrances to diverse juries: (1) jury venires that are less diverse than the populations from which they draw; and (2) the disproportionate use of peremptory challenges to strike minority jurors. With regard to (1), West offers solutions such as "drawing jury pool information from multiple sources rather than solely from lists of voters or drivers and implementing better procedures to track and enforce jury summonses." And with regard to (2), West notes, inter alia, that "[m]ethods of reducing juror bias discussed elsewhere in this Article have the added beneficial consequence of reducing the discriminatory use of peremptory challenges."

Proving That Jurors Lied During Voir Dire

West concludes by contending that even if all of the above procedures are adopted, there will still be cases in which biased jurors fall through the judicial cracks. And in those cases, West proposes a limited exception to Rule 606(b) which would "allow a juror to testify about 'whether, during voir dire or other questioning under oath, a juror misrepresented a material bias.'"

Conclusion

Of course, this last suggestion by West is exactly the type of back end quality control that courts have been reluctant to endorse (see, e.g., here). But that reluctance is precisely why I think that West's piece is so important. The pages of law reviews have been filled with attempts by authors trying to circumnavigate their way around Justice O'Connor's reasoning in Tanner. West's article is the first that I have seen which embraces Justice O'Connor's logic and seeks to improve the mechanisms she identifies as bulwarks against an impaired jury.

I asked West what led her to write the article, and she responded:

I am a new teacher having been a litigator for the last 18 years. I taught at the University of Denver last year and this year am at Yale as a Visiting Researcher (and at Vermont Law School teaching part-time). While a litigator I handled a number of capital cases at trial, on appeal and in post-conviction proceedings. I had a client whose death sentence was overturned based on post-verdict evidence of juror (non-racial) misconduct and I worked extensively with Rule 606(b) in that context.  More generally, as a litigator of capital and non-capital cases, I developed a belief that improved trial mechanisms had the potential to greatly improve outcomes and to reduce appellate and post-conviction litigation.  Unfortunately, trial court culture and pressures often work to prevent the implementation of such measures.  

Currently, I am looking at the criminal prosecution of protesters and, specifically, at the exclusion from trials of evidence of the motivations underlying the defendants' actions.

-CM

Law & Crit, Take 3: John Grisham's "The Confession" And Its Role In A Death Row FOIA Request

Today, Alyssa Rosenberg at ThinkProgress posted her third entry in The Pop Culture and the Death Penalty Project. Her post deals with John Grisham's "The Confession." I haven't had the chance to read "The Confession" yet, but it deals with a topic of significant interest to me: What happens when a man sits on death row and another man confesses that he committed the subject crime by himself? This topic, and specifically the Alton Logan case, led to me writing Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality, 102 NW. U. L. REV. COLLOQUY 391 (2008).

"The Confession" won the Harper Lee Prize for Legal Fiction, and I bet it's a good novel. In my opinion, though, Grisham's best piece of writing is actually a nonfiction book covering similar territory: "The Innocent Man: Murder and Injustice in a Small Town." The book tells the story of Ron Williamson, a former minor leaguer wrongfully convicted of the rape and murder of Debra Sue "Debbie" Carter. You can read Williamson's Innocence Project "baseball card" by clicking here. Also, I'm not sure about its current status, but I know that Grisham at one point was attached to write a screenplay about the "Norfolk Four," four men also wrongfully convicted of a rape/murder. The "Norfolk Four" might not have gotten as much attention as the "West Memphis Three," but the injustice was no less extreme, and I was disheartened to her that the Supreme Court of Virginia recently rejected appeals from three of the four men to have their convictions overturned (I was living in Norfolk's neighbor, Virginia Beach, during the summer of 1997 when the rape/murder occurred and remember the case seeming fishy from the start).

That said, fictional books are Grisham's bread and butter, and "The Confession" might have accomplished something that none of his other fictional books has achieved: It might have saved a life. 

If you're a criminal defendant or a civil plaintiff and the judge cites to John Grisham, it's usually a bad thing. A very bad thing. Consider the following citations to John Grisham in various court opinions:

•Regarding the latter conclusion, the court noted that Bowden's and Gagen's claims were "on their face, improbable....the stuff of a John Grisham novel," and explained that they failed to produce "any evidence to support their sweeping allegations beyond a few anomalous but inconclusive records." Bowden v. Kirkland and Ellis, LLP, 2011 WL 1211555 at **2 (7th Cir. 2011); 

•"If recited here in full flower, the averments in the complaint would seem to have been lifted from the pages of a John Grisham thriller. Our tale, however, is decidedly less gripping, as many of the more sensational allegations are irrelevant to the issues on appeal." Figueroa v. Rivera, 147 F.3d 77, 79 (1st Cir. 1998);

•In the instant case, the Amended Complaint is 37 pages long, and reads like a JohnGrisham novel. It is replete with hyperbolic statements casting the defendant in a sinister role, and reams of detail not only unnecessary to the pleading, but detrimental to it, in the sense that they make it more difficult to determine exactly what is being complained of. International Tobacco Partners, Ltd. v. Beebe, 420 F.Supp.2d 989, 992 (W.D.Ark. 2006);

•In short, codefendant Kourí–Pérez' motion builds on the quicksands of distortion to present a portrait of deviousness that recalls a John Grisham novel, rather than the facts of this case. United States v. Kouri-Perez, 992 F.Supp. 511, 512 (D.Puerto Rico 1997); and

•Finding that Krieger's complaint read more like aJohn Grisham novel than an acceptable initial pleading, the court dismissed the complaint with leave to refile. Krieger v. Adler, 1996 WL 6540 at *1 (N.D.Ill. 1996).

You get the idea. If you're a civil plaintiff or a criminal defendant and the judge cites to John Grisham, the judge is claiming that legal fiction is your bread and butter as well.

Conversely, consider the opinion of the United States Court of Appeals for the District of Columbia in Roth v. Department of Justice, 642 F.3d 1161 (D.C. Cir. 2011), from this summer. In Roth,

Anthony Roth represents Lester Leroy Bower, Jr., who is on death row in Texas for four murders committed over a quarter century ago. In January 2008, Roth filed FOIA requests with the FBI and the Executive Office for United States Attorneys seeking information concerning the FBI's investigation of the murders and about four individuals who Bower claims are the real killers. Although Bower was prosecuted by the state of Texas, the FBI, believing that the murders implicated various federal laws, jointly investigated the crime with local authorities. An Assistant United States Attorney served as a member of the prosecution team.

In response to the FOIA requests,

The FBI provided a so-called Glomar response, neither confirming nor denying whether it has records regarding three of the four men (the fourth has died). The FBI defend[ed] this response under FOIA Exemption 7(C), which permits agencies to withhold information contained in law-enforcement records to protect against unwarranted invasions of personal privacy. 

The district court approved of the FBI's Glomar response, prompting the appeal or Roth/Bower. The United States Court of Appeals for the District of Columbia agreed with some of the district court's conclusions, but it also found that there was some additional information to which Roth and Bower were entitled. How much information is unclear because the appellate court left "the task of separating the wheat from the chaff to the district court in the first instance."

But what is clear is that the appellate court ordered additional disclosure, and "The Confession" might have played a role in that decision. Roth argued, inter alia, "that disclosure will further the public's interest in knowing whether the FBI is withholding information that could corroborate a death-row inmate's claim of innocence." And the court bought that argument, concluding that it had

no doubt that th[is] second, non-Brady-related public interest identified by Roth is substantial. In recent years, high-profile exonerations of death-row inmates have generated considerable public interest in the potential innocence of individuals sentenced to death. See Death Penalty Info. Ctr., The Innocence List, http://www.deathpenalty info.org/innocence-list-those-freed-death-row (last visited June 16, 2011) (listing 138 death-row inmates who, since 1973, have been pardoned based on new evidence of innocence or have had their convictions overturned and either were not retried or were acquitted at retrial). This interest has manifested itself in several media, including newspaper articles, editorials, journalistic exposés, novels, and plays. See, e.g.,Jessica Blank & Erik Jensen, The Exonerated (2004); John Grisham, The Confession (2010); David Grann, Trial by Fire: Did Texas Execute an Innocent Man?, New Yorker, Sept. 7, 2009, at 42; see also Editorial, The Death Penalty: It's Time for Capital Punishment To Become Texas History, Houston Chron., Jan. 2, 2011, at B11 (calling for the abolition of the death penalty in Texas because “accumulating evidence indicates that the current application of the death penalty in [the state] involves an unacceptably high risk of killing innocent people”); Tim Madigan, Witness Says Condemned Man Isn't Responsible for 1983 Slayings, Star–Telegram (Ft.Worth, Tex.), June 29, 2008, at 1B (discussing Bower's effort to prove his innocence) (emphasis added).

So, the court relied in part on several nonfiction stories of wrongful convictions as well as John Grisham's work of fiction in ordering additional disclosure. Will that disclosure lead to Bower's exoneration. Only time will tell, but with the additional disclosure, at least he has a chance.

-CM

Adoption Stories, Take 5: 5th Circuit Finds Phone Bill Qualified As Business Record, Adoptive Admission

Over the last several days (here, here, here, and here), I've written four posts about Federal Rule of Evidence 801(d)(2)(B), which provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth....

So, can a phone bill qualify as an adoptive admission? The usual answer would be "no," with such a bill usually being admissible as a business record under Federal Rule of Evidence 803(6). Under the odd circumstances in United States v. Beasley, 2011 WL 5103324 (5th Cir. 2011), the answer is "yes." 

In Beasley, Rocky Glen Beasley was convicted by a jury of wire fraud and conspiracy to commit wire fraud. His convictions were the result of

the staged theft of his Ford F–150 pickup truck by Stephen Yates. The convictions [we]re premised, in pertinent part, on the fact that he made fraudulent representations in a telephone conversation with a claims adjuster for State Farm Insurance Company denying that he had any knowledge of or involvement with anyone who would have stolen his truck.

At trial,

The district court admitted, without objection from Beasley, a redacted copy of Beasley's cellular telephone bill that included activity between the dates of December 13, 2006, through January 12, 2007. The redacted bill was accompanied by a certificate of authentication and showed cellular activity only between the dates of December 23 and 24, 2006. The Government later attempted to introduce an unredacted copy of the bill, which the district court excluded on the basis that its veracity had not been authenticated. Later, after the Government established, through Beasley's testimony, that Beasley received the bill copy from the cellular provider, that it was his, and that it accurately reflected his cellular activity, the district court allowed the admission of the bill copy into evidence. The Government used the bill, in part, to show that Beasley and Yates had been in contact via telephone several days prior to the staged theft of Beasley's truck Beasley's truck.

After he was convicted, Beasley appealed, claiming, inter alia, that the admission of the unredacted bill copy was erroneous. The Fifth Circuit disagreed, initially concluding that the phone bill likely qualified as a business record under Federal Rule of Evidence 803(6), with Beasley authenticating the bill through his own testimony. The Fifth Circuit then found that "[t]he exhibit could also reasonably have been admitted under Rule 801(d)(2)(B) or (D)."

I don't understand the court's conclusion that the phone bill could have qualified as an employee admission under Federal Rule of Evidence 801(d)(2)(D). This Rule allows for the admission of statements by certain employees against employers. In this case, there was no employment relationship between the phone company and Beasley, so I don't see how the phone bill could have qualified as an employee admission.

But I do see why the court concluded that that bill could have qualified as an adoptive admission under Federal Rule of Evidence 801(d)(2)(B). Beasley was charged with crimes. He claimed that he had no idea who stole his truck, yet his phone bill showed prior conversations who the man who committed the theft. Normally, a person in Beasley's shoes would have denied that the bill was accurate, but when presented with the bill, Beasley in effect adopted it by saying that it accurately reflected his cellular activity. Therefore, it qualified as an adoptive admission.

-CM

Confidence Testing: The Good Wife Episodes Raises Two Interesting Questions About Duty Of Confidentiality

Last night's episode of "The Good Wife," "Executive Order 13224" was probably the best of the season. It had an interesting A story (client-of-the-week): Alicia and company represent a former translator for a military contractor in Afghanistan who is suing the federal government for false imprisonment and torture. It also had a solid B story: Peter uses smarm-king Cary to go after Will under the guise of taking down the firm's Stringer Bell-ish client, Lamond Bishop. 

The show deftly unpacked the concept of the deposition dump for viewers (and no doubt caused night terrors for any viewers who have ever done document review). There was a delciously awful sexual harassment industrial video that capped the episode. There was the return of Elsbeth Tascioni, possibly the funniest lawyer in TV history, played with scatterbrained verve by Carrie Preston ("True Blood"). And, best of all, there was no dancing tutor.

What the show did have, though, were two situations in which there were alleged exceptions to an attorney's duty of confidentiality. What were they?

The first can be found in the episode's title: Executive Order 13224. Under the Order:

All U.S. individuals and businesses are prohibited from engaging in any kind of transaction with persons, groups or entities designated as terrorists or as their supporters or associates. A list of "Specially Designated Nationals" (SDN's), consisting of "drug kingpins," terrorists and others considered a danger to the United States, is kept by the Treasury Department’s Office of Foreign Assets Control (OFAC). Known as the "OFAC List" or the "SDN List," it contains over 5,000 names and is updated often.  No individual or business in the U.S., or the foreign subsidiaries of U.S. companies, may conduct any kind of business with anyone on the OFAC list, and companies are expected to keep track of all changes. It can be found on the Treasury Department's website at www.treas.gov/offices/eotffc/ofac/sdn/index.html.

Former State's Attorney, now AUSA Glenn Childs levels charges against the translator/client and claims that Executive Order 13224 provides an exception to the duty of confidentiality. The firm designates Alicia as the attorney to deal with a Bob Balaban-ish Treasury Secretary played by, you guessed it, Bob Balaban. The firm erects a Chinese Wall around Alicia, but, to quote the great Tom Petty, "Even walls fall down." So, is Alicia obligated to disclose her client's confidences or face imprisonment and a fine? The answer in the episode is "no" because Tascioni deftly (and amusingly) creates a conflict of interest. But would Alicia have needed to answer without this conflict?

Illinois Rule of Professional Conduct 1.6(a) provides that

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b) or required by paragraph (c).

That said, Illinois Rule of Professional Conduct 1.6(b)(6) provides that

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:...

(6) to comply with other law or a court order.

Rule 1.6(b)(6) is presumably the Rule under which Alicia could have disclosed her client's confidences, with Executive Order 13224 being the "other law." Comment 13 to that Rule notes that

A lawyer may be ordered to reveal information relating to the representation of a client by a court or by another tribunal or governmental entity claiming authority pursuant to other law to compel the disclosure. Absent informed consent of the client to do otherwise, the lawyer should assert on behalf of the client all nonfrivolous claims that the order is not authorized by other law or that the information sought is protected against disclosure by the attorney-client privilege or other applicable law. In the event of an adverse ruling, the lawyer must consult with the client about the possibility of appeal to the extent required by Rule 1.4. Unless review is sought, however, paragraph (b)(6) permits the lawyer to comply with the court’s order.

So, could Alicia have disclosed her client's confidences under Rule 1.6(b)(6)? Yes, but could is the key word. Rule 1.6(b)(6) merely provides that an attorney may disclose client confidences "to comply with other law or a court order," not that she must disclose such confidences. So, under the Illinois Rules of Professional Conduct, Alicia could have disclosed her client's confidences, and, under Executive Order 13224, she might have been required to disclose her client's confidences. But when must an attorney disclose a client's confidences under the Illinois Rules of Professional Conduct? An attorney only must disclose under Illinois Rule of Professional Conduct 1.6(c), which provides that

A lawyer shall reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.

This leads into the second situation in last night's episode which dealt with an alleged exception to an attorney's duty of confidentiality. Cary brings to Will's attention an incident from 15 years ago in D.C. in which Will "borrowed" $45,000 from a client to pay off a gambling debt. Cary tries to use this "indiscretion" as leverage for Will to disclose the confidences of Lamond Bishop. Will claims that the firm represents the legitimate businesses of Bishop. Cary counters that these businesses are money laundering faces for Bishop's criminal enterprises and that confidentiality doesn't apply if Will knows Bishop is committing crimes.

Now, I'm not sure of the exact language used by Cary, and I'm not sure whether he was claiming that Bishop was using the firm's services to commit these crimes. But regardless, it is quite possible that some exceptions do apply. Under Rule 1.6(b)(1)-(3):

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent the client from committing a crime in circumstances other than those specified in paragraph (c);

(2) to prevent the client from committing fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;

(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services....

So, do any of thee apply to Lamond Bishop? The answer seems to be "maybe," depending on the exact nature of Cary's allegations. But again, even if one of the above 3 exceptions apply, that merely means that Will can disclose Bishop's confidences, not that he must. It will be interesting to see how this plays out over the season.

-CM

Adoption Stories, Take 4: Why Adoptive Admissions Should Be Governed By Standards Governing Statements Against Interest

Yesterday's post was the thirdt in a series of four posts dealing with adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) based upon the following fact pattern:

When Husband H confesses to Wife W that he had an affair with another woman, W is speechless. Now W is on trial for murdering the other woman. The prosecution calls H to testify to his admission of adultery.  W objects.

In my first post, I claimed that this statement shouldn't qualify as an adoptive admission admissible against Wife because it was not accusatory toward her. In my second post, I argued that this post shouldn't qualify as an adoptive admission admissible against Wife unless the prosecution could prove that Wife had personal knowledge of the affair before Husband made his statement. In my third post, I contended that it makes sense to treat adoptive admissions differently from other admissions under Rule 801(d)(2) because the Federal Rules of Evidence treat them differently under Federal Rule of Evidence 806. Today's post takes this argument to its logical conclusion: The standards governing adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) should be the standards governing statements against interest under Federal Rule of Evidence 804(b)(3), not the standards governing other admissions under Rule 801(d)(2).

Besides the fact that admissions under Rule 801(d)(2) are made by a party or a part'y's representative and statements against interest under Rule 804(b)(3) are made by an unavailable declarant, there are three features that distinguish the two types of statements. Two fact patterns can be used to reveal these differences:

Vince vs. Dan, Take 1

On November 1, 2011, Wanda tells her husband Dan, "I'm probably going to buy you a pit bull on November 3rd for your birthday." On November 3rd, before seeing the pit bull, Dan tells his neighbor Ned, "I got a pit bull for my birthday." On November 5th, Vince is bitten by a pit bull. He brings a civil negligence action against Dan, claiming that the pit bull belonged to Dan. Vince wants to call Ned to testify about Dan's statement.

Vince v. Dan, Take 2

On November 1, 2011, Wanda tells her husband Al, "I'm probably going to buy you a pit bull on November 3rd for your birthday." On November 3rd, before seeing the pit bull, Al tells his neighbor Ned, "I got a pit bull for my birthday." On November 5th, Vince is bitten by a pit bull. He brings a civil negligence action against Dan, claiming that the pit bull belonged to Dan. Dan claims that the pit bull belonged to Al and wants to call Ned to testify about Al's statement. Al has died before trial or is otherwise unavailable. 

Personal Knowledge

The first difference between statements against interest and admissions is that statements against interest require personal knowledge while admissions do not. In Take 1 above, Dan has no personal knowledge that he has a pit bull on November 3rd. First, Wanda's statement about buying a pit bull was equivocal. Second, even if she bought a pit bull on the 3rd, it might have been after Dan made his statement to Ned. Doesn't matter. Dan's statement is the admission of a party-opponent -- the defendant -- and does not require personal knowledge.

In Take 2 above, Al also has no personal knowledge that he has a pit bull on November 3rd. Does matter. Al is not a party, so his statement could only be admitted as a statement against interest under Rule 804(b)(3). Statements against interest require personal knowledge. Al's statement is inadmissible.

Against Interest When Made

The second difference between statements against interest and admissions is that statements against interest must be against interest when made while admissions do not. In Take 1 above, Dan's statement is not against his interest when he makes it. The pit bull attack doesn't take place until November 5th, so his statement of ownership on November 3rd wouldn't expose him to any liability. Doesn't matter. Admissions do not need to be against interest when made.

In Take 2 above, Al's statement is also not against interest when made. Does matter. Statements against interest need to be against interest when made. This is another reasons why Al's statement would be inadmissible.

How Much Against Interest?

The third difference between statements against interest and admissions is that statements against interest must be against a specific type of interest while admissions just need to be relevant to the opposing party. Let's assume that Dan and Al told Neighbor that they owned a pit bull on November 5th after Vince was bitten but before Dan/Al knew about the bite. In Take 1, Dan would have no reason to believe that his statement would expose him to liability because he is unaware of Vince being bitten. Doesn't matter. Obviously, Dan's statement is relevant to Vince's action against him, making it admissible as an admission.

In Take 2, al would also have no reason to believe that his statement would expose him to liability. Does matter. Federal Rule of Evidence 804(b)(3)(A) defines a statement against interest as a statement that

a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability....

Thus, because Al would have no reason to believe that his statement would expose him to civil liability when he made his statement, it wouldn't qualify as a statement against interest.

What Does This All Mean For Adoptive Admissions?

Why are the rules so lax with regard to the introduction of admissions generally? Hearsay is generally inadmissible because it is unreliable. Admissions are made by a party or someone speaking on the party's behalf (an authorizee, an employee, or a co-conspirator), and you can't complain that your own statement or a statement by your agent too unreliable to be admissible. Moreover, if it is your own statement, you can always take the stand and explain the statement away, and if it is your representative's statement, you can impeach the representative.

But adoptive admissions are different. They are not made by a party or the party's representative. Instead, they are thought to be reliable because they are adopted by a party. This being the case, the court needs to be sure that the party is actually adopting the statement rather than remaining silent or otherwise not rebutting the statement for other reasons (especially because the party can't impeach the speaker). 

The way that courts do this is by only finding that a statement is adopted by a non-responsive party if "the nature of the statement is such that it normally would induce the party to respond...." But when would a party normally respond to a statement? I would argue that a party normally would respond to a statement if, modifying the language from Rule of Evidence 804(b)(3)(A),

a reasonable person in the [party]’s position would have [not rebutted it] only if the person believed it to be true because, when made, it was so contrary to the [party]’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability....

Doesn't this make sense? An alleged statement against interest is too unreliable to be admissible under Rule 804(b)(3) if the declarant lacks personal knowledge, the statement isn't against interest when made, or the statement isn't, in effect, against legal interest. So, if any of these factors applies when a party doesn't rebut a statement made in close proximity to him, shouldn't the conclusion be that the statement was not of the nature that it normally would induce the party to respond?