EvidenceProf Blog

Things We Lost In The Fire: NY Opinion Reveals That The State Bars Evidence Of Subsequent Remedial Measures

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

And while New York doesn't have codified rules of evidence, the recent opinion of the Supreme Court of New York, Appellate Division, First Department in Stolowski v. 234 East 178th Street LLC, 2011 WL 5527716 (N.Y.A.D. 1 Dept. 2011), makes clear that the state similarly deems evidence of subsequent remedial measures inadmissible subject to certain exceptions.

The facts in Stolowski aren't entirely clear from the court's opinion, but it appears as if plaintiffs sued the defendant based upon injuries and/or death suffered by their relatives in a fire at a building owned by the defendant. The defendant thereafter filed a motion for a protective order as to post-fire repairs and remedial measures. Apparently, the defendant took remedial measures to correct a defective condition at the site of the fire. 

While the trial court denied the defendant's motion, the Supreme Court of New York, Appellate Division, First Department reversed, concluding that

The records of defendant's post-fire repairs and remedial measures do not fall within any of the recognized exceptions to the general rule that evidence of post-accident repairs is generally inadmissible and may never be admitted to prove an admission of negligence.

The plaintiffs apparently claimed that evidence of the post-fire repairs would be admissible to impeach defendant witness', but the Appellate Division concluded that "[c]ontrary to plaintiffs' contentions, 'general credibility impeachment' is not an exception." The court also found that "[c]ontrol is not at issue here since defendant concedes that it owns the premises." 

-CM

Book 'Em Danno, Take 2: Court Of Appeals Of Colorado Finds Rule 803(8)(B) Doesn't Bar Admission Of Booking Reports

Similar to its federal counterpart, Colorado Rule of Evidence 803(8) provides an exception to the rule against hearsay for

(8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or date compilations in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law.

So, let's say that the prosecution wants to introduce booking reports and a mittimus against a defendant. Are these documents admissible under Colorado Rule of Evidence 803(8)(A) or are they inadmissible under Colorado Rule of Evidence 803(8)(B)? According to the recent opinion of the Colorado Court of Appeals of Colorado, Div. VI in People v. Warrick, 2011 WL 5089464 (Colo.App. 2011), they're admissible.

In Warrick, the facts were as stated above, and the 

Defendant's booking reports list[ed] his basic biographical information, such as his age and date of birth, and his arrest dates. They also contain[ed] his booking photographs. The mittimus also include[d] defendant's date of birth along with information relating to defendant's prior conviction for conspiracy to commit robbery, including the statute under which he was convicted and the level of his offense.

The Colorado Court of Appeals of Colorado, Div. VI deemed these documents admissible under Colorado Rule of Evidence 803(8)(A), concluding

that the booking reports and the mittimus set forth the activities of the Arapahoe County Sheriff's Department and the Arapahoe County District Court, respectively.

But what about the fact that the documents ostensibly set forth "matters observed by police officers and other law enforcement personnel," which would make them inadmissible under Colorado Rule of Evidence 803(8)(B)? The court noted that no Colorado court had addressed this question before in a published opinion and found that it would rely on federal precedent to resolve the issue because of the similarity between Colorado Rule of Evidence 803(8) and its federal counterpart. The court then found that 

federal circuit courts have consistently and uniformly ruled that booking sheets and other similar documents are admissible under Fed.R.Evid. 803(8)(B). For example, in United States v. Dowdell, 595 F.3d 50 (1st Cir. 2010) [which I blogged about here], the court considered whether a police booking sheet was admissible under Fed.R.Evid. 803(8)(B). The court found that it was, concluding that "ministerial, non-adversarial information is admissible under Rule 803(8)(B)."... The court relied on the history of the rule's enactment, which made clear that the purpose of Rule 803(8)(B) was only to bar investigative reports prepared by the police for the prosecution of a specific defendant:

[T]he reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases.

-CM

Where There's Smoke: Will Evidence Of Other Acts Of Child Molestation Be Admissible Against Jerry Sandusky?

An e-mail on the Evidence Professor listserv yesterday raised an interesting question: When former Penn State assistant football coach Jerry Sandusky is tried criminally and likely civilly for acts of child molestation, will evidence of uncharged/other acts of child molestation be admissible under the Pennsylvania Rules of Evidence? I think that the answer is likely "yes," but the question of admissibility won't be as easy as it is under the Federal Rules of Evidence and many other state evidentiary codes.

Federal Rule of Evidence 414(a) provides that

In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

Meanwhile, Federal Rule of Evidence 415(a)

In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

These Rules, along with Federal Rule of Evidence 413, were

enacted in 1994 as part of the Violent Crime Control and Law Enforcement Act of 1994...and became effective in 1995....The drafters' purpose was to supersede Rule 404(b)'s prohibition on evidence of like conduct showing propensity in sexual assault cases.

As is made clear in Jessica D. Kahn, He Said, She Said, She Said: Why Pennsylvania Should Adopt Federal Rules of Evidence 413 and 414, 52 Vill. L. Rev. 641 (2007), however, unlike some other states, Pennsylvania does not have state counterparts to Rules 413-415.

That said, Pennsylvania Rule of Evidence 404(b)(2) provides that

Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof or motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake or accident.

Under this Rule, then, the prosecution/plaintiffs' attorneys can present evidence of other acts of child molestation, not to prove, "Once a child molester, always a child molester," but to prove common plan or scheme/modus operandi. For instance, in Commonwealth v. O'Brien, 836 A.2d 966 (Pa.Super. 2003), the Superior Court of Pennsylvania found no problem with the admission under Rule 404(b)(2) of evidence concerning the defendant's prior sexual assaults against two minor boys in his prosecution for sexually assaulting a third minor boy.

-CM

Law & Crit, Take 4: Patty Jenkins' "Monster" And The "Monster" In All Of Us

I'm working with a couple of high school students on a project related to the insanity defense, and today I gave them Russell D. Covey's terrific new article, Temporary Insanity: The Strange Life and Times of the Perfect Defense to read. The focus of their project is on how mental disorders truly impact people and their judgment and under what circumstances a defendant should be found not guilty by reason of insanity. Based upon Professor Covey's article, we had an interesting discussion about how the legal system should treat those claiming insanity and how it should treat those claiming temporary insanity. 

In a certain sense, it seems easier for judges or jurors to put themselves into the shoes of a person pleading temporary insanity. Sure, the judge/juror might never have been molested as a child, but if one of the children allegedly molested by Jerry Sandusky killed him and claimed temporary insanity, it wouldn't be too difficult for the judge/juror to intuit what was basically going through the defendant's head even if the judge/juror could never truly grasp the depth and the breadth of the psychological damage done (more on this case tomorrow). And a judge/juror may never have fought in a war, but if a recent veteran charged with murder claims temporary insanity/PTSD, that judge/juror probably has a sense that war is hell (on the soldier), even if the magnitude of the soldier's suffering cannot be fully grasped. Conversely, unless a judge/juror has a history of schizophrenia, borderline personality disorder, etc. in his family, he likely has no idea what was going through the head of a defendant claiming a traditional insanity defense based upon one of these conditions.

This, of course, is not a problem unique to the insanity defense. To serve as a juror in a capital case, you must be death-qualified. But being death-qualified doesn't mean that you need any special education, training, or experience to decide between life (in prison) and death; it simply means that you must be willing to impose the death penalty based upon balancing aggravating and mitigating factors. Let's say that you're a capital juror and the defendant/murder was physically abused as a child. Let's say that she was raped. If you haven't suffered from a history or violence, would you have the ability to get inside the head of the defendant, to decide whether her life should be spared? 

This leads me to Alyssa Rosenberg's post today in her Pop Culture and the Death Penalty Project, which deals with Patty Jenkins' "Monster."

"Monster," of course, is the movie about Aileen Wuornos, the abused Florida woman who was dubbed America's first female serial killer. I would dispute the notion of Wuornos being a serial killer, a point poignantly made by Nick Broomfield in his documentary, "Aileen Wuornos: The Selling of a Serial Killer." I highly recommend both that doc and Broomfield's follow-up, "Aileen: Life and Death of a Serial Killer."

But I would also strongly recommend "Monster" because, as Rosenberg notes, it does something that neither doc can: It gets you inside of Wuornos' head. According to Rosenberg,

The site of Aileen tied up, bloody, of her attacker pouring rubbing alcohol into the gash on her head, raping her — it’s absolutely horrific. And after she shoots him to stop the attack, watching her shriek, keen, slam the hood of the car is one of the rawest I’ve ever seen on film, and perhaps the only performances I’ve seen that gave me an actual sense of what it would feel like to kill another person.

This alone proves the powerful intersection between pop culture and the law and underscores the importance of Rosenberg's project. In an earlier post, Rosenberg wrote about "The Green Mile." Well, in Blackmon v. State, 7 So.3d 397 (Ala.Crim.App. 2005), during death-qualification, two juror were struck because they indicated that "The Green Mile" had an impact on how they view the death penalty. Fictional films might distort factual reality. They might distort legal reality. They might simplify complex issues. But they matter. Indeed, Rosenberg's point is echoed by Abbe Smith in The "Monster" in All of Us: When Victims Become Perpetrators, 38 Suffolk U. L. Rev. 367 (2005).

Later, Rosenberg writes

I have no idea how I could bring myself to cause the death of another person, even if that death is sanctioned by the state, without suffering suffering extreme trauma.... 

This is an important point, and one which Werner Herzog, one of my favorite documentary filmmakers apparently explores in his new film, "Into The Abyss" by focusing upon the plight of a former death house captain. I certainly think that the effect of executions on the executioner is a topic that has received insufficient attention, but what about the effect on jurors who sentence defendants to death?

Based upon the work of the Innocence Project, most people know that many convictions are houses of cards built on faulty eyewitness identifications and coerced confessions. And while many might not be aware of the current public defender crisis, surely it has seeped into the public consciousness that impoverished young defendants with neophyte lawyers are receiving something less than the Platonic ideal of representation. A juror is death-qualified when he is willing to impose the death penalty. But is that juror qualified to deal with the consequences of his decision to impose death? What if a witness for the prosecution recants his testimony? What if an alibi witness appears? What if DNA evidence points to another suspect? What if this evidence comes after the execution? Is the juror qualified to deal with his choice to impose death? Is anyone qualified?

-CM

A Picture Is Worth A Thousand Words: Court Of Appeals Of Iowa Fails To Resolve Whether Facebook Photos Trigger Rape Shield Rule Analysis

Similar to its federal counterpart, Iowa Rule of Evidence 5.412a, Iowa's rape shield rule,

Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual abuse is not admissible.

A grandfather is charged with sexual crimes against his granddaughter based upon acts committed starting in 2004 when she was 8 years-old. At trial, the grandfather wants to introduce into evidence three photographs posted to a Facebook page in 2010 depicting: (1) the alleged victim holding several condoms and her mother standing behind her; (2) the alleged victim inflating a condom like a balloon; and (3) the alleged victim's mother making a gesture with her hand/face that could be interpreted as a sexual gesture. Do these photographs depict "sexual behavior," rendering them inadmissible under the rape shield rule? That was a question that the Court of Appeals of Iowa didn't (have to) answer in its recent opinion in State v. Parker, 2011 WL 5387212 (Iowa App. 2011).

In Parker, the facts were as stated above, with the grandfather claiming, inter alia, that the photographs were necessary (1) to show the relationship the alleged victim has with her mother; (2) to impeach the alleged victim's claim she was ashamed to talk with her mother about the abuse; and (3) to demonstrate the open relationship between the alleged victim and and her mother.

The trial court found that these photographs depicted "sexual behavior, rendering them inadmissible under the rape shield rule. Alternatively, the trial court found that the photographs were inadmissible because their probative value was substantially outweighed by the danger of unfair prejudice and other dangers under Iowa Rule of Evidence 5.403.

The Court of Appeals of Iowa affirmed, finding that admission of the photographs would violate Iowa Rule of Evidence 5.403 and not reaching the issue of whether admission of the photographs would also violate the rape shield rule.

That said, it seems clear to me that their admission would have violated the rape shield rule because they depicted "sexual behavior." The Advisory Committee's Note to Federal Rule of Evidence 412 states in relevant part that

Past sexual behavior connotes all activities that involve actual physical conduct, i.e. sexual intercourse and sexual contact, or that imply sexual intercourse or sexual contact. See, e.g. United States v. Galloway, 937 F.2d 542 (10th Cir. 1991), cert. denied, 113 S.Ct. 418 (1992) (use of contraceptives inadmissible since use implies sexual activity); United States v. One Feather, 702 F.2d 736 (8th Cir. 1983) (birth of an illegitimate child inadmissible); State v. Carmichael, 727 P.2d 918, 925 (Kan. 1986) (evidence of venereal disease inadmissible). In addition, the word "behavior" should be construed to include activities of the mind, such as fantasies or dreams.  See 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure, § 5384 at p.  548 (1980) ("While there may be some doubt under statutes that require 'conduct,' it would seem that the language of Rule 412 is broad enough to encompass the behavior of the mind.").

If "sexual behavior" includes activities of the mind, then surely it also includes photographs of a sexual nature posted to a Facebook page. And indeed, other courts have found that sexually suggestive photographs on social networking sites constitute "sexual behavior" for rape shield rule purposes. See, e.g.,  In re K.W., 2008 WL 4201072 (N.C.App. 2008) (finding that sexually suggestive photographs on a MySpace page triggered a rape shield rule analysis).

-CM

 

The Areas of My Expertise: Court Of Appeals Of Texas Finds Rule 702 Objection Didn't Preserve Rule 701 Issue

Texas Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Meanwhile, Texas Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Finally, Texas Rule of Evidence 103(a)(1) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.

So, let's say that a defendant objects that a police officer's opinion testimony is inadmissible because he was not an expert witness under Rule 702. And let's say that the court's response is that the police officer could offer lay opinion testimony under Rule 701. Has the defendant preserved the issue of the admissibility of the officer's testimony under Rule 701? According to the recent opinion of the Court of Appeals of Texas, Waco, in State v. Simmons, 2011 WL 5247891 (Tex.App.-Waco 2011), the answer is "no." I disagree.

In Simmons, 

The evidence showed that Appellant was intoxicated in his pickup truck when it collided with a four-door Kia driven by an off-duty police officer. When Fort Worth Police Officer Corey Swanson arrived on the scene, the Kia was disabled in the roadway, facing westbound. It had sustained damage to its left front corner. Appellant's pickup had been pulled off the roadway. It had front end damage. Appellant told Officer Swanson that his truck was over the double yellow line turning left when the Kia struck him at high speed. Officer Swanson testified that Appellant's story made no sense to him. Citing rule of evidence 701, the trial court overruled Appellant's objection and allowed the officer's testimony.

But while the trial court cited to Rule 701, the appellant did not. Instead, defense counsel claimed that Officer Swanson was not an expert in accident reconstruction under Rule 702 and thus could not offer opinion testimony regarding what happened before and during the accident. According to the Court of Appeals of Texas, Waco, this meant that the appellant had not preserved for appellate review the issue of whether Officer Swanson could offer lay opinion testimony under Rule 701. According to the court, "[t]o the extent that Appellant's point on appeal contests admissibility based on rule 701, because his trial objection was based on rule 702, his complaint is not preserved for our review."

Really? Wasn't it implicit in appellant's objection that Officer Swanson could not offer lay opinion testimony under Rule 701. In other words, the appellant's explicit objection was that Officer Swanson could not offer expert opinion testimony under  Rule 702 because he was not expert in accident reconstruction. Isn't it implicit in this objection that only an expert could render opinion testimony on the topic? In the words of Rule 103(a)(1), wasn't this implicit basis for the objection "apparent from the context," especially given the fact that the trial court cited Rule 701 in response to the appellant's objection?

-CM

 

Come Be My Conspiracy: Does The Co-Conspirator Admission Rule Only Cover The Charged Conspiracy?

Federal Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, under this co-conspirator admission rule, is a co-conspirator's statement only admissible against a defendant if the statement was made during the course and in furtherance of the conspiracy charged in the indictment, or can a co-conspirator admission made during a different conspiracy also be admissible? This was a question that the Fourth Circuit didn't quite have to answer in its recent opinion in United States v. Medford, 2011 WL 5317751 (4th Cir. 2011), but it seems that there is no "same conspiracy" requirement under Rule 801(d)(2)(E).

In Medford, Bobby Lee Medford, a former Sheriff of Buncombe County, North Carolina, was convicted in a jury trial of numerous conspiracy and other charges relating to his receipt of bribes in connection with the unlawful operation of video poker machines in Buncombe and other North Carolina counties. After he was convicted, Medford appealed, claiming, inter alia,

that the district court erred in admitting into evidence a recording of a December 19, 2006 meeting...attended by Jamie Henderson, a co-owner of Henderson Amusement, JeffChilders, an employee of Henderson Amusement, John Parker, a former deputy sheriff in neighboring Rutherford County, and Jack Conner, the newly-elected Sheriff of Rutherford County. According to Medford, this recording should not have been admitted into evidence because the recording related to a separate conspiracy in Rutherford County to whichMedford was not a party, and occurred after Medford already had left office following his loss in the 2006 election. Thus, Medford asserts that the recording did not qualify for admission under the hearsay exclusion provided by Rule 801 for statements made by co-conspirators during the course and in furtherance of a conspiracy.

The district court had found that Medford was involved in this separate conspiracy, and the Fourth Circuit did not address the validity of this finding. Instead, the Fourth Circuit found that even assuming the invalidity of this finding, the erroneous admission of the recording was harmless error giving the overwhelming other evidence of Medford's guilt.

But what if (1) there weren't overwhelming other evidence of Medford's guilt; and (2) Medford was involved in this other conspiracy, but it was not the same conspiracy charged in the indictment. Under these circumstances, should the Fourth Circuit have found that the recording was improperly admitted, necessitating a new trial? It seems clear that the answer is "no."

Instead, courts consistently have concluded that "[t]he conspiracy that forms the basis for admitting the coconspirators' statements need not be the same conspiracy for which the defendant is indicted."United States v. Senegal, 371 Fed.Appx. 494, 502 (5th Cir. 2010). Indeed, as I have noted previously on this blog, the prosecution doesn't even need to charge a defendant with conspiracy to admit statements under Federal Rule of Evidence 801(d)(2)(E).

If we think about the rationale behind Federal Rule of Evidence 801(d)(2)(E), it makes sense why there is no "same conspiracy" requirement. The theory behind Rule 801(d)(2)(E) is that a co-conspirator is the agent of other conspirators. Thus, when a co-conspirator makes statements during the course and in furtherance of the conspiracy, those statements are attributable to other conspirators just as statements by an employee are attributable to an employer. This being the case, it is irrelevant that a defendant is not charged with (or in connection with) the conspiracy during which the co-conspirator made his statement(s).

-CM