EvidenceProf Blog

Night Swimming: 1st Circuit Upholds Introduction Of Co-Conspirator Admission In Scheme To Swim Drugs Into Canada

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

A statement that meets the following conditions is not hearsay:...The statement is offered against an opposing party and...was made by the party’s coconspirator during and in furtherance of the conspiracy.

So, when is a statement in furtherance of a conspiracy, and when is it mere idle chatter? That was the question addressed by the First Circuit in its recent opinion in United States v. Fogg, 2011 WL 5988232 (1st Cir. 2011).

In Fogg, Raymond Fogg, Jr. was convicted of conspiracy to possess with intent to distribute marijuana and for social security fraud. 

Fogg's conviction was based on his participation in a conspiracy to import marijuana from Canada into Maine for re-sale. The operation was headed by Michael Pelletier....The gist of the scheme was that Pelletier paid associates to transport marijuana from Canada by swimming with the contraband across the St. John River near Madawaska, Maine. The marijuana was then distributed to various customers for their use or sale. Fogg was one of those customers.

At trial, Kendra Cyr, Pelletier's girlfriend,

testified that Pelletier told her that Fogg was one of his customers. Cyr also testified that she collected money from Fogg on Pelletier's behalf while Pelletier was incarcerated.

After he was convicted, Fogg appealed, claiming, inter alia, that the district court erred by allowing Cyr to give this testimony. The First Circuit responded that four conditions have to be satisfied for a co-conspirator admission to be admitted under Rule 801(d)(2)(E):

1) a conspiracy must have existed; 2) the defendant must have been a member of it; 3) the declarant must also have been a member; and 4) the declarant's statement must have been in furtherance of the conspiracy. 

The court noted that Fogg only challenged the last of these requirements, claiming

that rather than enhancing the object of the conspiracy, Pelletier's statements about Fogg's involvement was "mere idle chatter underlain by personal rather than conspiratorial motives."

The First Circuit disagreed, concluding that

Cyr admitted to having a role in the conspiracy in which she accompanied Pelletier on drug deliveries and also collected money for him while he was in jail. Without question, Pelletier's relaying to Cyr the identity of a customer who owed Pelletier money so that Cyr could collect it was in furtherance of the conspiracy.

-CM

The Only Exception: Arkansas Case Reveals Danger Of State's Undifferentiated Rape Shield Exception

Like many state counterparts, Federal Rule of Evidence 412(a), the Federal Rape Shield Rule, precludes the admission of evidence of an alleged victim's prior sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with that propensity, and thus consent, at the time of the crime charged. And, like many state counterparts, Federal Rule of Evidence 412(b) contains three enumerated and narrowly construed exceptions to this proscription. See, e.g., United States v. Shamsud-Din, 2011 WL 5118840 (N.D.Ill. 2011) ("The Seventh Circuit has noted that the exceptions to Rule 412 apply in 'limited circumstances.'").

As the recent opinion of the Supreme Court of Arkansas in State v. Kindall, 2011 WL 5112841 (Ark. 2011), reveals, however, Arkansas' rape shield rule contains an undifferentiated, catch-all exception. And, as the opinion also reveals, that's a dangerous thing.

In Kindall, Bernard Kindall was charged with second-degree sexual assault of K.J., a person less than fourteen years old. Before trial, Kindall filed a motion pursuant to Arkansas' rape shield statute, "alleging that evidence K.J. had made similar allegations of sexual misconduct against others was relevant and admissible." Thereafter,

Pursuant to the rape-shield statute, the circuit court held an in-camera hearing on Kindall's motion. At that hearing, K.J. testified that in 2006, her cousin D.R. sexually abused her, and that her mother confronted her about the abuse on the day it happened. K.J. testified that she initially denied that the abuse occurred because she feared her mother would not believe that she was an unwilling participant. However, K.J. testified that she later that same day told her mother that the abuse had occurred and thereafter never wavered in her assertion that the allegation was true. D.R. testified and denied the abuse. He admitted to being taken into custody but reported he was released when the case was dismissed. The circuit court ruled from the bench that the alleged prior sexual conduct was relevant as to K.J.'s credibility, but the written order does not make a finding that the offered evidence was "relevant to a factin issue."

In response, the State filed an interlocutory appeal to the Supreme Court Arkansas,which reversed. Importantly, though, the Arkansas Supremes reversed based uponprocedure, not substance. And in doing so, the court strongly implied that it would uphold a procedurally proper order entered after remand.

The problem for the circuit court was that it failed to comply with Ark.Code Ann. § 16–42–101(c)(2)(C), which provides an exception to Arkansas's rape shield rule if, following an in camera hearing,

the court determines that the offered proof [of sexual behavior/predisposition] is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence....

As noted above, the circuit court did not explain its relevance reasoning in its written order, which is why the Supreme Court of Arkansas reversed and remanded. It didn't do so based upon substance. Indeed, the court made clear that "'the circuit court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the circuit court's decision unless it constituted clear error or a manifest abuse of discretion.'"

But how could there be a manifest abuse of discretion under Arkansas' exception?Ark.Code Ann. § 16–42–101(c)(2)(C) is an undifferentiated, catch-all exception. K.J., a young child, initially denied that she was sexually assaulted by her cousin but then disclosed the abuse and thereafter never wavered in that assertion. The circuit court found evidence of these events relevant to credibility, with its probative value outweighing its inflammatory/prejudicial nature. I disagree. I think that many others would disagree. Maybe the Supreme Court of Arkansas will disagree. But will it find the circuit court's decision to be a manifest abuse of discretion? Doubtful. There's simply too much discretion in the language of § 16–42–101(c)(2)(C) for (m)any decisions to bemanifest abuses of that discretion.

Contrast this with Federal Rule of Evidence 412(b), which sets forth three enumerated exceptions to the Federal Rape Shield Rule for:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

If evidence of sexual behavior/predisposition doesn't satisfy Rule 412(b)(1)(A) or Rule 412(b)(1)(B), the court can only admit it if its exclusion would violate some Constitutional right of the defendant. And if it wouldn't, an appellate court would surely reverse a district court order admitting such evidence. The proffered evidence inKindall doesn't satisfy Rule 412(b)(1)(A) or Rule 412(b)(1)(B), and I can't think of a Constitutional Right that its exclusion would violate (although the defendant could try to claim the right of confrontation).

-CM 

Substance & Style, Take 3: Katharine Traylor Schaffzin On The Restyled Rules Of Evidence

Today, the restyled Federal Rules of Evidence took effect. Here is the third in a series of three guest posts by Katharine Traylor Schaffzin on the new restyled Rules:

Restyled FRE 611: Maybe a Passive Court Isn’t a Bad Thing

To render the Federal Rules of Evidence more easily understandable, the Advisory Committee on Evidence Rules, at the suggestion of style consultant Joseph Kimble, sought to eliminate the passive voice from the rules throughout the restyling project.  Nonetheless, two examples of the passive voice remain in revised Rule 611(b) and (c).  This was no oversight. 

Professor Kimble suggested that the Advisory Committee replace the passive with the active voice in Rule 611(b) and (c), as well as throughout the entirety of the rules.  The Advisory Committee, however, chose to maintain the passive language in Rule 611(b) (“Cross-examination should not go beyond the subject matter of the direct examination . . . .”) and 611(c) (“Leading questions should not be used on direct examination . . . .”).  It deemed the change proposed by Professor Kimble to be substantive and, thus, unrevisable under the restyling protocol.

Its reason for opting to maintain the passive voice was that the changes suggested by Professor Kimble would “shift the focus” of the rule.  Specifically, the Committee viewed Rule 611(b) and (c) as advice to practitioners on how not to formulate their questions.  By activating the passive voice, the Committee feared that these subsections would instead encourage courts to take more action in regulating the form of questions. Inviting courts to take action where they had not been expressly encouraged to do so in the past was, thus, deemed a substantive change.

In my view, such a change of focus is nearly imperceptible.  But the decision to maintain the passive voice in Rule 611(b) and (c) is an excellent example of the scrutiny to which the Advisory Committee subjected each proposed amendment to the Federal Rules of Evidence.  Through the restyling project, the Committee so enhanced the readability and consistency of the rules while striking a balance to maintain such subtleties that they have certainly made my job as an Evidence prof. easier.

 

Law & Crit, Take 5: Sharon Stone's "Last Dance" & Oregon's Death Penalty Moratorium

In today's post in her ongoing Pop Culture and the Death Penalty project, Alyssa Rosenberg addresses Sharon Stone's "Last Dance." According to Rosenberg,

it’s a pretty terrible movie, chock-full of sassy black death row inmates who call Stone’s sweet former-addict killer "girl" a lot, a weak-sauce and sentimental discussion of racial and economic disparities in the death penalty, and a lot of thick-accented callous Southern stereotypes. But it does a couple of things that I think are interesting, even if I don’t think it does them particularly well.

First is the way it addresses lingering discomfort with executing women. Sam, the head of the appeals office...;

Second, there’s the question of how race and class interact in the death penalty...;

the ridiculousness and cruelty of our last-minute appeals process.

Conversely, one of the things that the movie gets (very) wrong is that its primary focus is not on Stone's character but on the spiritual journey taken by her attorney (who comes off as the idiot younger brother of Frank Galvin from "The Verdict"), a journey that ends with "an Annie Lennox-scored trip to the Taj Mahal in her memory...." As Anthony Paul Farley wrote in Amusing Monsters, 23 Cardozo L. Rev. 1493 (2002),

In Last Dance, the conflict within the heart of the condemned murderer, played by Sharon Stone, has been resolved long before the narrative begins. The observer, a wealthy white man played by Rob Morrow, appears as a suitor in need of a philosopher, and he finds her in Stone. His desperate attempts to save her from the Leviathan's lethal injection, which she is as willing to receive as was Socrates to receive the hemlock prescribed him by his fellow Athenians, fail. In his failure, however, he succeeds in making peace with himself and, as we are led to imagine, his own struggle on behalf of forgiveness and against vengeance. Our own role, Leviathan's role, in producing the conditions that lead to the body of the death that occasioned the making of the film and our own entry into the dark of the cathedral, the theatre, is never seriously addressed.

So, why does this make me think about Governor John Kitzhaber's decision to place a moratorium on the death penalty in Oregon? 

Well, as noted in the New York Times article on the decision,

Oregon, which uses lethal injection, has executed just two people since its voters approved the death penalty in 1984, and both of those inmates waived certain rights to appeal, making them so-called volunteers. The state, which has 37 inmates on death row, last executed someone in 1997. It has been one of at least seven states that allow the death penalty but have not used it in more than a decade, according to the Death Penalty Information Center.

So, here's my question: Even if you're anti-death penalty, are you anti-voluntary death penalty? I am anti-death penalty. I don't see how the State has the power to kill someone who no longer poses a threat to society and can be sentenced to life imprisonment without the possibility of parole. I don't see how we can force prosecutors to argue that a (wo)man no longer deserves to live. I don't see how we can force jurors to decide whether a (wo)man should live or die. I don't see how we can force doctors to inject a lethal cocktail of drugs into the arm of the condemned. (And this doesn't even get into race/class issues as well as the number of wrongful convictions that have been exposed through DNA and other evidence).

But I do believe that that a terminally ill person should be able to end his own life with dignity, and I do believe that a willing doctor should be able to provide assistance to such a terminally ill person. In other words, I support physician-assisted suicide, but I disagree with the death penalty, and I argued as much in my first law review article, A Death by Any Other Name: The Federal Government's Inconsistent Treatment of Drugs Used in Lethal Injections and Physician-Assisted Suicide, 17 J.L. & Health 217 (2002-2003).

I think that the involuntary killing of a person who doesn't want to die fundamentally goes against the fundamental tenents of civilized society and the Hippocractic Oath. On the other hand, I think that the voluntary killing of a terminally ill person who wants to die is consistent with a compassionate society as well as the spirit, if not the letter, of the Hippocractic Oath.

But take the following example. Defendant is charged with murder(s). He confesses to the crime(s) and is convicted of murder(s). In Jurisdiction, the death penalty can only be imposed if a defendant admits his guilt and asks that the death penalty be imposed because he believes that he deserves to die based upon the acts that he committed. In other words, what if we have a true volunteer and not merely a so-called "volunteer." If the jury grants the defendant's wish and sentences him to die, and if the doctor complies with the defendant's wish and injects him with a lethal dose of drugs, would you be satisfied with the outcome even if you are against the death penalty as a general proposition? My honest answer is that I don't know.

-CM

Substance & Style, Take 2: Katharine Traylor Schaffzin On The Restyled Rules Of Evidence

Below is the second in a series of three guest posts by Katharine Traylor Schaffzin on the restyled Federal Rules of Evidence:

Sacred Formatting: Why the Advisory Committee Chose Not to Reformat Rule 803

In restyling the Federal Rules of Evidence, the Advisory Committee on Evidence Rules resolved to amend the rules to make them more easily understandable and to achieve consistency in style and terminology.  The Committee aimed to achieve uniformity in formatting across all the rules of practice and procedure.  To accomplish this, they applied a familiar outlining format including progressively indented subparagraphs, hanging indents, and substituting vertical lists for horizontal lists.  Formatting revisions of this type abound in Rule 801.

Rule 803, however, represents a significant departure from consistency in style.  The first level of subparagraphs is numbered 803(1) through 803(24).  To achieve consistent formatting, however, those subparagraphs should be identified as 803(a) through 803(x).  The alternative resulting in arguably greater consistency would have been to identify the language preceding those subsections (“The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:”) as the first level of subparagraphs in itself (for example, “803(a) The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:”).  This alternative would have maintained the current numbering of exceptions, replacing 803(1) with 803(a)(1), for example. 

The Advisory Committee decided against both alternatives, maintaining something akin to sacred phrases - sacred formatting.  The problem with the latter alternative is stylistic.  If the Committee were to add subparagraph (a), the rules of style would have also required it to add a subparagraph (b).  There was simply no appropriate content for a subparagraph (b) and the Committee wisely decided against adding a subparagraph of meaningless text simply to oblige a stylistic rule.

But the bigger problem identified by the Advisory Committee in renaming the subparagraphs of Rule 803, whether they be renumbered 803(a) through 803(x) or 803(a)(1) through 803(a)(24), is that all historical references to the hearsay exceptions would be lost.  Attorneys and judges would have to relearn all twenty-four exceptions by new names.  Moreover, legal research of an exception would turn up nothing.  For example, were a student to search Rule 803(c) on Lexis, the earliest result he or she would find would be from December 1, 2011; such a search would reveal no history of the exception prior to the restyling.  Rather than wipeout thirty-five years of legal research on one of the most commonly cited rules for the sake of consistency in style, the Advisory Committee wisely chose not to act.

Substance & Style: Katharine Traylor Schaffzin On The Restyled Rules Of Evidence

Back in March, I posted an entry about Katharine Traylor Schaffzin and her terrific article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000). Professor Schaffzin's article dealt with the new restyled Federal Rules of Evidence set to take effect on December 1, 2011. At the time, I promised that Professor Schaffzin would have a few guest posts on the new Rules around the time that they took effect. Below is the first of these guest posts:

Restyled FRE: Sacred Phrases Are In Fact Arbitrary

In my article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (Summer 2010), I suggested that the Advisory Committee on Evidence Rules restyle any phrase in need of restyling, regardless of whether the phrase was “sacred.” I posited that the classification of any phrase as sacred, and therefore immune from the restyling effort, was arbitrary.  The Committee defined a sacred phrase as any phrase in the Federal Rules of Evidence that has “become so familiar in practice that to alter [it] would be unduly disruptive.” Nonetheless, the Committee set forth no protocol for determining whether a phrase was familiar in practice or whether it would cause an undue disruption.  Moreover, there is no record of exactly which phrases remain unchanged because the Committee deemed them sacred or for any number of other reasons.  I concluded that there is no reason to maintain inconsistent, ambiguous, redundant, repetitive, or archaic language simply because the Committee arbitrarily determined that such language was too sacred to change it. 

Having recently returned from a symposium on the restyling project hosted by the Advisory Committee in conjunction with its Fall Meeting, I thought I would share the comments of several members of the Advisory Committee involved in the restyling project.  A number of those Advisory Committee members agreed without hesitation that the classification of any phrase as sacred was made arbitrarily.  Those members were unapologetic about their arbitrary decisions for two reasons.  First, it would have been impossible for the Committee to embark on an empirical study to determine which phrases were so familiar in practice that to alter them would create an undue disruption.  Second, those members disagreed with my underlying premise that a wholesale restyling of phrases, sacred or not, would be a good thing. 

I’d agree that an empirical study of sacred phrases would have been inefficient.  However, nothing prevented the Committee from conducting the kind of research that I did in writing my article to determine the significance of a given phrase prior to the introduction of the first draft of the Federal Rules of Evidence in 1969.  After all, hasn’t any phrase that was eventually included in the final rules enacted in 1975 sacred at this point?  So there must have been some significance in the language prior to the Federal Rules for one phrase to stand out above the others.  Had the Committee looked into the significance of language prior to 1969, they would have restyled language that is certainly capable of improvement but which the Committee left unrevised and they would have maintained other language as sacred that they nonetheless did select for revision.

As to the second point, we’ll have to agree to disagree.  The Advisory Committee was apparently not moved by my public comment that sacred phrases containing inconsistent, ambiguous, redundant, repetitive, and archaic language should be restyled because the Committee had already revised similarly situated phrases not arbitrarily deemed sacred.  My point was that, because the Committee had already headed down the road of wholesale restyling, why reserve a few inscrutable phrases simply because we’ve all become so familiar with them?  As long as we are stuck with the “truth of the matter asserted” and “substantially outweighs its prejudicial effect” for another thirty-five years, it looks like there will be a continuing demand for Evidence profs.

Give It A Shot: Northern District Of Texas Finds Printout Of Screen Shot Satisfies Best Evidence Rule

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 litigant takes a screen shot of a web page, prints out the screen shot, and then seeks to introduce the printout into evidence. Does the printout satisfy the Best Evidence Rule? According to the recent opinion of the United States District Court for the Northern District of Texas in Conceal City, L.L.C. v. Looper Law Enforcement, LLC, 2011 WL 5557421 (N.D.Tex. 2011), the answer is "yes."

In Conceal City, 

Conceal City allege[d] that the Looper defendants and the Wiesners [we]re liable on three grounds: patent infringement, in violation of 35 U.S.C. § 271; false marking, in violation of 35 U.S.C. § 292; and unfair competition, under Texas law. The parties' dispute involve[d] a holster covered by U.S. Patent No. 5,570,827...The '827 patent intends to improve upon the inside-the-pants pistol holster. It does so by using stiff leather for the inner and outer layers and extending the layers forwardly and rearwardly to form wings. The wings maximize the flatness of the holster and thereby minimize the bulge of the pistol. The patented holster also permits the user to wear a pager or pager-like device to cover the clip connecting the holster and waistband. From the exterior, only the pager or pager-like device is visible. The intended result of these two improvements is to better conceal the pistol.

Before trial, Conceal City sought

a preliminary injunction enjoining defendants from using the production dies; manufacturing, distributing, or selling an infringing holster; and engaging in misleading advertising, such as marking the Hyde–It Holster as related to the '827 patent and advertising that the Wiesners' company is the home of the "Cell/PDA Pal."

As support for its claim that the Wiesners committed patent infringement,

Conceal City offer[ed] in evidence a screen shot of the Wiesners' website, universalholsters.com, which twice states that the Hyde–It Holster is "patented" and refers to "US Patent # 5570827" at the bottom of the page.

Conceal City objected that the admission of the printout of the screen shot violated the Best Evidence Rule, but the Northern District of Texas disagreed, concluding that the printout was an "original" for Best Evidence purposes under Federal Rule of Evidence 1001(3), which states in relevant part that

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."

-CM