December 10, 2011
Something Old, Something New: Court Of Appeals Of Texas Opinion Reveals Differences Between Texas & FRE 609(b)
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
But, as the recent opinion of the Court of Appeals of Texas, Waco, in Parker v. State, 2011 WL 6091248 (Tex.App.-Waco 2011), makes clear, there's an important distinction between the two rules.
In Parker, Steve Vic Parker was convicted of two counts of Theft less than $1,500 based upon stealing alcohol from a liquor store on two separate occasions. After he was convicted, Parker appealed, claiming, inter alia, that the trial court erred by allowing the prosecution to impeach him through evidence of his nine prior convictions. While one of these convictions was for misdemeanor theft in 2003, the other convictions were more than 10 years old. Ordinarily, this would have meant that the eight older convictions only would have been admissible against Parker if their probative value substantially outweighed their prejudicial effect under Texas Rule of Evidence 609(b).
But as the Court of Appeals of Texas, Waco, noted, "the 'substantially outweighs' test does not apply to a prior conviction over 10 years old if a lack of reformation is shown by evidence that the witness has an intervening conviction for a felony or a misdemeanor involving moral turpitude." This, because Parker's 2003 conviction was for a crime involving moral turpitude, the admissibility of the 8 earlier convictions was governed by Texas Rule of Evidence 609(a), which provides that
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.
And because the appellate court found that this test was satisfied, it affirmed Parker's conviction.
December 9, 2011
Impeachable Offenses: Court Of Appeals Of Minnesota Finds No Error Despite Plain Rule 806 Violation
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
A defendant is charged with possession of a firearm by an ineligible person, and the complainant doesn't testify at his trial. Her hearsay statement, however, is introduced at trial, but the trial court precludes the defendant from impeaching her. Surely the trial court's decision is error, if not reversible error, right? Not according to the recent opinion of the Court of Appeals of Minnesota in State v. Craig, 2011 WL 6015031 (Minn.App. 2011).
In Craig, police responded to a call involving an alleged domestic disturbance between Andrew Craig and the complainant, S.Y. The police eventually found Craig in a car which had a backpack with a gun in it. Craig was charged with possession of a firearm by an ineligible person and claimed that S.Y. planted the gun in the backpack.
S.Y. was not available to testify at [Craig]'s trial. A Mounds View police investigator testified that he had contact with S.Y. to discuss the assault and that he made futile efforts to locate S.Y. prior to trial. On redirect examination, he was asked, without objection, whether S.Y. had told him about the nature of her relationship with [Craig]. The investigator responded, "That she did. You know, I think that they—if I remember correctly, that they had been involved, boyfriend, girlfriend." No further questions were asked on this point or about anything else discussed between the investigator and S.Y.
After S.Y.'s statement was introduced, Craig sought to impeach her through her
prior burglary convictions in 2004, 2006, and 2007. The district court denied the motion, ruling that the prior-conviction evidence was not relevant. The district court asked defense counsel several times why S.Y.'s characterization of the relationship was relevant, especially since this was not a domestic-assault case. Defense counsel responded that the fact that S.Y. was lying on that point gave her motive to conceal the firearm without [Craig]'s knowledge.
The trial court precluded Craig from impeaching S.Y., and the Court of Appeals of Minnesota affirmed that ruling on appeal, finding that
Although [Craig] submits that prior-conviction evidence "certainly [would] have been admissible for impeachment purposes" had S.Y. testified, in fact, S.Y. did not testify, and the only statement made by S.Y. that was admitted at trial through another witness was that she characterized her relationship with appellant as having been "involved" as boyfriend and girlfriend. No hearsay evidence was admitted via the investigator that S.Y. specifically accused appellant of possessing the firearm. Therefore, there was no relevant hearsay statement admitted that created an opportunity for prior-conviction impeachment, and the district court did not err in excluding such evidence.
Huh? Rule of Evidence 806 plainly states that "[w]hen a hearsay statement... has been admitted in evidence, the credibility of the declarant may be attacked...by any evidence which would be admissible for those purposes if declarant had testified as a witness." And, pursuant to Minnesota Rule of Evidence 609, if S.Y. testified at trial, she could have been impeached through evidence of a qualifying conviction. In other words, defense counsel had it absolutely right and the Court of Appeals of Minnesota had it absolutely wrong.
Now, in fairness, the court was right that S.Y.'s statement wasn't especially important, but it was certainly relevant, which is why it was admissible. And the fact that it wasn't especially important merely goes to the issue of whether the trial court's error was harmless, not the issue of whether it was error as all. But that's not what the Court of Appeals of Minnesota held. It first held that the trial court committed no error and then held that "even if we were to conclude that the district court erred by excluding S.Y.'s prior convictions, that error was harmless because it is likely that the jury would have reached the same verdict had the impeachment evidence been admitted."
December 8, 2011
No Contest: Court Of Appeals Of Ohio Deems Conviction Resulting From No Contest Plea Inadmissible
evidence of the following is not admissible in any civil or criminal proceeding against the defendant who made the plea or who was a participant personally or through counsel in the plea discussions:
So, let's say that a defendant pleads "no contest" and is convicted of the crime charged. Clearly, evidence of his plea is inadmissible under Rule 410(A)(2). But what about evidence of the resulting conviction? According to the recent opinion of the Court of Appeals of Ohio, Seventh District, in State v. Hubbs, 2011 WL 5995622 (Ohio App. 7 Dist. 2011), evidence of the conviction is inadmissible as well.In Hubbs, Thomas Hubbs was initially charged with misdemeanor failure to control his vehicle, pleaded no contest, and was convicted. Hubbs was then charged with driving under the influence based upon the same event that gave rise to his first conviction. While the trial court deemed evidence of Hubbs' "no contest" plea inadmissible under Ohio Rule of Evidence 410(A)(2), it deemed the resulting conviction admissible.
The Court of Appeals of Ohio, Seventh District, disagreed, finding that in its recent opinion in Elevators Mut. Ins. Co. v. J. Patrick O'Flaherty's, 125 Ohio St .3d 362 (Ohio 2010), the Supreme Court of Ohio concluded that
"'The purpose behind the inadmissibility of no contest pleas in subsequent proceedings is to encourage plea bargaining as a means of resolving criminal cases by removing any civil consequences of the plea....The rule also protects the traditional characteristic of the no contest plea, which is to avoid the admission of guilt....The prohibition against admitting evidence of no contest pleas was intended generally to apply to a civil suit by the victim of the crime against the defendant for injuries resulting from the criminal acts underlying the plea....The plain language o Evid.R. 410(A) prohibits admission of a no contest plea, and the prohibition must likewise apply to the resulting conviction. To find otherwise would thwart the underlying purpose of the rule and fail to preserve the essential nature of the no contest plea
The court then noted that while Elevators was a civil case, its logic extended to criminal case such as the case before it. According to the court,
The fact that it was a civil case does not make the above reasoning inapplicable. Rather, it provides greater support for the position that it is applicable. A criminal defendant faces the potential loss of his personal liberty and, as such, has much more at stake than a civil litigant that is asserting or contesting a claim for damages. For that reason, the law typically affords greater protection to the criminal defendant and his rights. Thus, since Evid.R. 410...prevents the introduction of a no contest plea in any subsequent proceeding, the fact that the Ohio Supreme Court in a civil case stated that the conviction based on a no contest plea is likewise barred from admission does not hinder its application to a criminal defendant in a criminal proceeding.
December 7, 2011
Saves The Day: Court Of Appeals Of Arizona Finds Entire Child Molestation Statement Admissible Under Rule 803(4)
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Under Rule 803(4), statements about the general source of an injury are admissible. Thus, Paul's statement to his doctor that he hurt his arm when he was pushed down would be admissible. Conversely, statements about the person causing the illness/injury are generally not admissible. Thus, if Paul also told his doctor that it was Dan who pushed him down, this statement would typically be inadmissible. Why? Such statements of identification are ordinarily not reasonably pertinent to diagnosis or treatment. But does this limitations apply in cases of sexual assault or molestation? According to the recent opinion of the Court of Appeals of Arizona, Division 1, Department C., in State v. Cheatam, 2011 WL 5964514 (Ariz.App. Div. 1 2011), that changes things.
In Cheatam, Clinton Fletcher Cheatham was convicted of one count of sexual molestation and two counts of sexual conduct with a minor under the age of twelve. After he was convicted, Cheatam appealed, claiming, inter alia, that the superior court improperly "admitted substantial hearsay from the nurse [who] examined [the victim] some of which was entirely uncorroborated from [the victim's] testimony without adequate foundation under Rule 803(4)."
In particular, Cheatham objec[d]s to the superior court's admission of the victim's statements to the nurse identifying Cheatham as the person who had "suck[ed] on his privates" and "put his finger in [the victim's] butt."
In addressing this argument on appeal, the Court of Appeals of Arizona noted that
although hearsay statements identifying a victim's assailant are ordinarily inadmissible under Rule 803(4) because they are not relevant to diagnosis or treatment, "this general rule ... is inapplicable in many child sexual abuse cases" because the identity of the abuser may be "critical to effective diagnosis and treatment."....[T]he "psychologica sequelae of sexual molestation by a father, other relative, or family friend may be different and require different treatment than those resulting from abuse by a stranger."
This is language you might expect to see from any court opinion from any court across the country. Because the identity of a child molester is reasonably pertinent to diagnosis or treatment (e.g., whether the child should be returned to the custody of the parent), it is admissible despite the general proscription on the admissibility of statements of identification under Rule 803(4). But here's what the court went on to say:
The nurse also testified that, when obtaining information from a victim in a sexual assault case, it was important to determine the perpetrator's identity, because the perpetrator's identity and whether the perpetrator carried any sexually transmittable diseases might be relevant to the treatment plan she would prescribe for the victim.
Interesting. This statement seems to imply that whenever a victim of any type of sexual assault makes a statement identifying the assailant, the statement is admissible under Rule 803(4).
December 6, 2011
Tax Master?: 10th Circuit Finds Lay Opinion Testimony Doesn't Violate Rule 704(b)
Federal Rule of Evidence 704(b) provides that
In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
But let's say that a lay witness wants to offer opinion testimony on a criminal defendant's mental state? Is such testimony admissible? According to the recent opinion of the Tenth Circuit in United States v. Abramson-Schmeiler, 2011 WL 5925582 (10th Cir. 2011), the answer is "yes." I disagree.
In Abramson-Schmeiler, Linda Abramson-Schmeiler was convicted of five counts of filing a false tax return.
The charges were based on her alleged failure to report all of the income she received from her business of"“diversionary sales" (purchasing and then reselling large quantities of hair-care products). The government alleged that she falsely underreported her business's gross receipts, or sales, by more than $1.4 million during the years 2003, 2004, and 2005, which then resulted in her falsely underreporting her personal income for the same amount. In support of these allegations, the government introduced evidence at trial through defendant's bank records and tax returns. These records showed that the gross-receipts figures on defendant's taxes were significantly lower than the gross-receipts amounts reflected in her bank records.
At trial, Abramson-Schmeiler's
main defense was that she did not intentionally underreport her sales and income. She admitted that she had failed to report payments her business received for selling hair-care products. But she asserted that many of her diversionary sales were in cash and unrecorded and that she lost money or broke even on many of these transactions. She testified that when she did not make money on a transaction, she would consider it a "wash" and she would not report the transaction to her accountant for reporting on her income tax returns....She testified that she did not knowingly fail to report gross receipts on her taxes.
After she was convicted, Abramson-Schmeiler appealed, claiming, inter alia, that the district court erred by precluding tax accountant, Richard Powell, who prepared her tax returns for the years she was charged with failure to report all of her income, from providing certain testimony. Specifically,
Court: No one, expert or any other witness, may express an opinion. It's precluded expressly under [Federal Rule of Evidence] 704, and it's generally precluded through a lay fact witness such as Mr. Powell.
In addressing this argument, the Tenth Circuit found that "Rule 704(b) expressly precludes an expert from offering an opinion about the ultimate issue of a defendant's mental state in a criminal case...." Conversely, it does not categorically preclude the admission of lay opinion testimony on the defendant's mental state, and Federal Rule of Evidence 701
If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
And, according to the court,
This issue came up in a recent case where the district court excluded all lay witness testimony about a defendant's mental state. In reversing the district court's decision, we explained that: "The Federal Rules of Evidence do not ... categorically prohibit lay witnesses from offering opinion testimony regarding the defendant's mental state."...
We conclude that the district court expressed a mistaken view of the law and therefore abused its discretion in excluding this opinion testimony for the reasons expressed at trial.
And while the Tenth Circuit ultimately found harmless error, I am baffled by its evidentiary conclusion. Sure, Rule 704(b) only precludes expert testimony on a criminal defendant's mental state because only an expert would be qualified to render such testimony. Isn't testimony on whether a person intentionally underreported on her taxes based on scientific, technical, or other specialized knowledge within the scope of Rule 702? And if that is the case, wouldn't Powell have to be qualified as an expert witness, meaning that Rule 704(b) would come into play?
December 5, 2011
The Case-In-Chief Waiver, Take 2: 4th Circuit Becomes 5th Circuit Court To Approve Case-In-Chief Waivers
In relevant part, Federal Rule of Evidence 410 provides that
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a criminal defendant can waive Rule 410 protection and make his otherwise excludable plea statements admissible to impeach him should he make contradictory statements at trial. The Court left open the question of whether a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence. Thereafter, a most (all?) federal appellate courts found that a defendant could make such a waiver by presenting evidence at trial contradicting his otherwise excludable plea statements, which would allow the prosecution to use his statements substantively to rebut the evidence elicited, i.e., the "rebuttal waiver."
Until a few days ago, however, four federal appellate courts had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence even when he did not present evidence at trial contradicting his otherwise excludable plea statements. But after the opinion of the Fourth Circuit in United States v. Stevens, 2011 WL 5925327 (4th Cir. 2011), that number has risen to four.In Stevens, Michael Lloyd Stevens was convicted of conspiracy to retaliate against a person cooperating with law enforcement. After he was indicted for this crime,
Stevens entered into a plea agreement with the Government, in which he agreed to plead guilty to the conspiracy charge. Attached to the plea agreement was a stipulation of facts indicating that Stevens had conspired with others to retaliate against an intended victim for his cooperation with federal authorities concerning a federal offense by assaulting him.
The plea agreement also contain[ed] a provision waiving Stevens' rights under Fed. R. Evid. 410. Specifically, Stevens agreed that if he withdrew from the plea agreement or proceeded to trial on the conspiracy charge, the Government was permitted to use the stipulation of facts as evidence in its case-in-chief. Stevens ultimately proceeded to a jury trial. In turn, the Government introduced the stipulation of facts as evidence against Stevens in its case-in-chief at trial. On appeal, Stevens argue[d] that the district court erred in allowing such admission.
After Stevens was convicted, he appealed, claiming, inter alia, that the admission of this stipulation violated Federal Rule of Evidence 410. In response, the Fourth Circuit initially observed that
Because Rule 410 is an exception to the general principle that all relevant evidence is admissible at trial, its limitations are to be construed narrowly....Moreover, its protections are waivable. United States v. Mezzanatto, 513 U.S. 195, 205 (1995) (holding that Rule 410, in effect, creates “a privilege of the defendant, and, like other evidentiary privileges, this one may be waived or varied at the defendant's request” (internal quotation marks and citation omitted)); accord United States v. Mitchell, 633 F.3d 997, 1001–06 (10th Cir.2011) (upholding validity of Rule 410 waiver and allowing defendant's plea statements into evidence as part of the Government's case-in-chief); United States v. Sylvester, 583 F.3d 285, 289–91 (5th Cir.2009) (same and citing decisions from the Eighth and District of Columbia Circuits supporting the proposition that statements made during plea negotiations can be waived for use as affirmative evidence of the defendant's guilt).
So, the 5th, 8th, Tenth and D.C. Circuits had previously approved of case-in-chief waivers. The Fourth CIrcuit decided to join their ranks in Stevens, finding that "[b]ecause the waiver was valid and enforceable, the district court properly allowed to Government to introduce the stipulation of facts as evidence in its case-in-chief."
December 4, 2011
Suicidal Tendencies?: Court Of Appeals Of Maryland Finds Statement 1 Month Before Death Admissible Under State Of Mind Exception
A defendant is charged with murder. At trial, he seeks to present evidence that approximately 30 days prior to his death, the alleged victim said to a state trooper who placed him under arrest for a DUI, "I don't need this in my life at this point." The defendant claims that this statement was relevant to prove the alleged victim's suicidal state of mind. Should the statement qualify for admission under the state of mind exception to the rule against hearsay? According to the Court of Special Appeals of Maryland, the answer is "no." According to the recent opinion of the Court of Appeals of Maryland in State v. Smith, 2011 WL 5924338 (Md. 2011), that decision was an abuse of discretion.In Smith, the facts were as stated above, with Maryland Rule of Evidence 5-803(b)(3) providing an exception to the rule against hearsay for
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), offered to prove the declarant's then existing condition or the declarant's future action, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
In finding that the trial court erred by excluding the alleged victim's statement because of the nearly 30 day gap between his statement and his death, the Court of Appeals of Maryland concluded that
where possible suicide is an issue, remoteness of evidence, under Maryland Rule 5-803(b)(3), bearing on the deceased's state of mind, must be determined under all of the circumstances. Consequently, it was error for the circuit court to apply, based simply on the lapse of time, a limitation of thirty days preceding [the alleged victim]'s death to the admissibility of [the witness]'s testimony.
Instead, according to the court,
If a person, on day one, is angry enough to intend to shoot another person, it may well be that, because of the cooling off effect of the passage of time, a shooting occurring thirty days later may not manifest a continuation of that intent. We are not persuaded, however, that that rationale applies when the inquiry is the motive for suicide. The latter determination necessarily must consider all of the circumstances bearing on the victim's psyche.