EvidenceProf Blog

I Am Number Four: 10th Circuit Becomes 4th Federal Appellate Court To Approve Of Case-In-Chief Waivers

Federal Rule of Evidence 410 states in relevant part that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). The Court, however, left open the question of the validity of a "case-in-chief" waiver, under which a defendant waives the protections of Rule 410 and permits the prosecutor to present evidence otherwise excludable under it as part of its case-in-chief, regardless of whether the defendant testifies. Before Thursday, three federal circuit circuit courts -- the Fifth Circuit, the Eighth Circuit, and the D.C. Circuit -- had been presented with the question and a found such a waiver to be valid. With its opinion in United States v. Mitchell, 2011 WL 322371 (10th Cir. 2011), the Tenth Circuit can be added to the tally.

In Mitchell, Dino Mitchell was charged with conspiracy to transport stolen securities and entered into a plea agreement which provided in relevant part that

if I withdraw my plea of guilty, I shall assert no claim under the United States Constitution, any statute, Rule 410 of the Federal Rules of Evidence, Rule 11(f) of the Federal Rules of Criminal Procedure, or any other federal rule, that the defendant's statements pursuant to this agreement, or any leads derived therefrom, should be suppressed or are inadmissible at any trial, hearing, or other proceeding.

Mitchell thereafter withdrew his guilty plea, and at his trial, "[e]vidence of Mitchell's guilty plea, including statements from the plea agreement and plea colloquy, was used extensively in the government's case-in-chief." Mitchell thereafter appealed, claiming, inter alia, that case-in-chief waivers are invalid.

The Tenth Circuit responded that the Court in Mezzanatto approved of impeachment waivers but acknowledged that

Despite this reasoning, Mezzanatto generated a three-justice concurrence that advocated a more narrow scope of the holding and emphasized the case only dealt with an impeachment waiver. "It may be, however, that a waiver to use such statements in the case in chief would more severely undermine a defendant's incentive to negotiate, and thereby inhibit plea bargaining. As the Government has not sought such a waiver, we do not here explore this question." 

The court then noted that "Mitchell asks us to take the admonition of the Mezzanatto concurrence and dissent to heart and bar the admissibility of the plea statements in the government's case-in-chief." According to the court, though,

This we cannot do. We see no analytical distinction between Rule 410's  application to impeachment waivers and case-in-chief waivers. The same reasoning for the former compels the latter. Nor did Mitchell negotiate a narrower waiver in the first place.

-CM

In Completion: Court Of Appeals Of Kentucky Finds Rule Of Completeness Applied In Gastric Bypass Case

Like its federal counterpart, Kentucky Rule of Evidence 106 provides that

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

And, as the recent opinion of the Court of Appeals of Kentucky in Perry v. Larson, 2011 WL 181326 (Ky.App. 2011), makes clear, this "rule of completeness" applies even when the other part of the writing is offered for a different purpose as long as it concerns the same subject matter.

In Larson,

Michael [Perry] was morbidly obese and suffered from chronic left knee pain. Because of that pain, Michael took an anti-inflammatory, Voltaren. Motivated in part by his knee pain, Michael sought treatment with [Dr. Gerald] Larson in the spring of 2001. Larson recommended gastric bypass as a method of weight loss, and he performed that procedure on August 31, 2001. Following the surgery, Larson prescribed thromboembolic deterrent stockings (compression stockings) and sequential compression devices (compression devices) to decrease the risk of Michael developing post-operative deep vein thrombosis  (DVT). Larson did not prescribe any medication to address this risk....DVT is not, in and of itself, necessarily life threatening, but can lead to life threatening or fatal consequences such as pulmonary embolism.

The surgery was uneventful and, on September 4, 2001, Michael was released from the hospital. The next morning, Michael died as a result of a pulmonary embolism. Following Michael's death, [Susie] Perry brought suit individually and on behalf of Michael's estate alleging, in pertinent part, that Larson's failure to prescribe the medication heparin after surgery violated the standard of care and was a substantial cause of Michael's death. 

At trial, Susie's counsel asked Dr. Barba, her expert witness, to read a portion of the Physicians' Desk Reference (PDR) stating that studies had shown heparin to be an effective treatment for prevention of post-operative DVT. Thereafter, defense counsel, over Perry's objection, got Dr. Barba to read that portion of the PDR which states that "patients receiving...platelet active drugs" drugs such as Voltaren "should be excluded from [heparin] treatment."

After the jury found for Dr. Larson, Susie appealed, claiming that "the introduction of that portion of the PDR setting forth contraindications was not admissible under the rule of completeness because it was apparently for a different purpose." The Court of Appeals of Kentucky disagreed, finding that

evidence is admissible under KRE 106 if it concerns the matter introduced by the adverse party. The subject matter introduced by Perry through the PDR involved the efficacy of heparin in reducing the risk of DVT. The additional portion of the PDR introduced by Larson indicated that there are risks associated with the use of heparin in conjunction with other medications. That concerns the subject matter introduced by Perry, the efficacy of heparin, and therefore is admissible under KRE 106.

-CM

Et Tu, Bruton?: Seventh Circuit Finds Admission Of Non-Facially Incriminatory Statement Didn't Violate Bruton Doctrine

Pursuant to the Bruton doctrine, in a jury trial, the admission of a co-defendant's confession that also facially incriminates another defendant violates the Confrontation Clause unless (1) the co-defendant testifies, or (2) the confession is independently admissible against the other defendant. When, however, the co-defendant's confession does not facially incriminate the other defendant, there is no Bruton doctrine problem as is made clear by the recent opinion of the Seventh Circuit in United States v. Spagnola, 2011 WL 181480 (7th Cir. 2011).

 In Spagnola, the government indicted Michael Spagnola and his brother, Robert George, on charges of conspiracy to possess with intent to distribute 5 kilograms or more of cocaine and attempted possession with intent to distribute 5 kilograms or more of cocaine. The government charged Spagnola separately with possessing a firearm during and in relation to a drug trafficking crime and possessing a firearm as a felon.

Before George was arrested, the government recorded him making incriminatory statements to a confidential informant. After George expressed surprise at being arrested, the government told him about the recording, to which he responded, "Oh, then you have me on conspiracy."

George did not testify at trial, but the prosecution introduced this statement. After Spagnola was convicted, he appealed, claiming that the admission of this statement violated the Bruton doctrine. The Seventh Circuit disagreed, finding that

A Bruton violation occurs only if the confession of a non-testifying co-defendant facially incriminates the non-confessing co-defendant. See, e.g., United States v. Brooks, 125 F.3d 484, 501 (7th Cir.1997). George's statement neither facially incriminates Spagnola nor implies that he was a co-conspirator. George made the statement after being advised that the government had recorded his communications with the informant; thus, the most reasonable inference to be drawn from the statement is that George was confessing to conspiring, not with Spagnola, but with the informant. Because there was no obvious link between the statement and Spagnola, the district court's limiting instruction-that pre-trial statements were to be considered only against the defendant who made them-was sufficient. See Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).

-CM

Dead Letter: Court Of Appeals Of Michigan Finds Dead Man's Statute Abrogated By Rule 601

MCL 600.2166, Michigan's Dead Man's Statute, provides that

In an action by or against a person incapable of testifying, a party's own testimony shall not be admissible as to any matter which, if true, must have been equally within the knowledge of the person incapable of testifying, unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.

Meanwhile, Michigan Rule of Evidence 601 provides that

Unless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules.

In its recent opinion in In re Moon Estate, 2011 WL 254934 (Mich.App. 2011), the Court of Appeals of Michigan had to address whether Rule 601 abrogated MCL 600.2166.

Moon arose from a dispute regarding whether certain property belonged in a decedent's estate. The probate court held that a partnership existed between the decedent Mark E. Moon and his father, appellee Merlin Moon, and that appellee therefore had a 50% ownership stake in several items that had been listed in the estate inventory. Part of the court's basis for this conclusion was Merlin's testimony about conversations he had with his son concerning the partnership.

Appellant Kristina Moon, the personal representative of decedent's estate, thereafter appealed, claiming, inter alia, that Merlin's testimony should not have been received pursuant to MCL 600.2166. But according to the court,

In James v. Dixon,...this Court held that MRE 601 abrogated MCL 600.2166. The James Court noted that the courts have the power to adopt rules of evidence; therefore, any conflict between the statute and the rule must be resolved in favor of the rule....The Court found that MRE 601 eliminated the incompetency imposed by the dead man's statute.

Kristina argued, however, that courts are not authorized to enact rules that modify substantive law and that MCL 600.2166 was a substantive law. The court again disagreed, finding that dead man's statutes, like most rules of evidence, are procedural and therefore subject to modification by the courts.

-CM

A Is For Apple: ND Cal Finds Former Testimony Inadmissible Against Apple In Patent Infringement Case

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, as the recent opinion of the United States District Court for the Northern District of California in Affinity Labs of Texas, LLC v. Apple, Inc., 2011 WL 232521 (N.D. Cal. 2011), makes clear, Rule 804(b)(1) requires a contemporaneous opportunity and similar motive to develop the testimony of the witness.

In Affinty Labs, Affinity Labs of Texas, LLC initiated a lawsuit, alleging that certain Apple, Inc. Apple, Inc. products infringe three of its patents. 

In an earlier action Affinity sued BMW North America, LLC, and various car companies. Three witnesses, James Geier, Alan Harris and Gregory Simon, all BMW employees, were deposed in connection with that litigation. The BMW case involved patents different from, but related to, the three patents disputed in the present action. When Apple was subpoenaed as a non-party in the BMW action it asserted a joint defense privilege with the defendants in that action. However, Apple was not a party to the BMW case, and did not receive notice of or attend the depositions of the three BMW employees.

Apple thereafter had an opportunity to depose these three witnesses during discovery in the action against it (it is unclear from the court's opinion whether Apple actually deposed these witnesses). Therefore, Affinity Labs moved to have these witnesses' former testimony deemed admissible under Federal Rule of Evidence 804(b)(1) in the event that they are unavailable at trial. According to Affinity Labs, Apple had an "even better" opportunity to examine these witnesses than it would have had during the earlier action "because it can study their prior testimony and has the advantage of knowing how the testimony was used at trial in the BMW action."

According to the United States District Court for the Northern District of California, however, this argument was

belied by the language of the Rule, which require that Apple or a predecessor in interest have had an opportunity and similar motive to develop the witness's testimony from the prior deposition, which Affinity now proposes to use at trial. It is irrelevant that discovery would allow for subsequent examination of the witness in a civil action because the rule itself requires that the opportunity have existed with respect to the testimony that the proponent seeks to admit.

-CM

A Loan Tonight: WDNC Finds Evidence of Bank's Discontiuing Of Non-Income Verification Loans Inadmissible Under Rule 407

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, as the recent opinion of the United States District Court for the Western District of North Carolina in Suntrust Mortg., Inc. v. Busby, 2011 WL 251201 (W.D.N.C. 2011), makes clear, this Rule excludes not only evidence of changes to instrumentalities after they allegedly caused accidents (e.g., adding a handrail to stairs that a victim fell down) but also evidence of, say, a bank discontinuing the use of non-income verification loans.

In Busby, SunTrust officials  accused 14 property owners in a controversial North Carolina real estate development of falsifying their income when they obtained mortgages totaling more than $20-million. These 14 property owners were given non-income verification (NIV) loans (NIV loans require less documentation than traditional conforming loans; lenders often advertise these programs as "no doc" loans, meaning the borrower does not have to come up with any documentation other than a credit report and a loan application).

The property owners sought to present evidence that Suntrust discontinued its use of non-income verification loans after giving the loans at issue to prove that "had Suntrust discontinued that use earlier, the events giving rise to this litigation would not have occurred." SunTrust responded that this was inadmissible evidence of a subsequent remedial measure under Federal Rule of Evidence 407. The property owners countered that they wanted to use this evidence to properly prove the feasibility of the measure under the Rule.

The United States District Court for the Western District of North Carolina agreed with Suntrust, concluding that

From the arguments of counsel it appears that the inference that Defendants wish to advance with this evidence is that Plaintiff was culpable for its own losses by having employed the practice of non-income verification loans. This, of course, is excludable under Rule 407. Even if Defendants were able to articulate some manner in which this evidence were relevant under Rule 401 that does not come within the prohibition of Rule 407, the Court finds that the probative value of this evidence is substantially outweighed by its unfair prejudicial effect. "It would be extremely difficult for the jury to hear the [evidence related to discontinuation of the non-income verification loans] without inferring that those measures were admissions of [culpable conduct]. This, of course, is exactly the inference that Rule 407 is designed to prevent."

-CM

Sleep Experts: Ninth Circuit Allows Expert Testimony Under Rule 703 Based Upon Alleged Juror Misconduct

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.

Meanwhile, Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

So, let's say that a juror allegedly engages in misconduct during trial/deliberations. Obviously, jurors cannot testify about this misconduct after a verdict is entered in an attempt to impeach the verdict. But can these jurors tell an expert about this misconduct, with the expert then testifying that it is his opinion that the verdict was improperly reached? According to the recent opinion of the Ninth Circuit in Anderson v. Terhune, 2011 WL 148912 (9th Cir. 2011), the answer is "yes." I'm not sure that I agree.

In Terhune, Arthur Anderson was convicted in California state court of murdering two of his friends and attempting to murder a third person. After he was convicted, Anderson appealed, claiming, inter alia, that (1) that one juror's repeated sleep at trial violated his Sixth and Fourteenth Amendment rights; and (2) that trial counsel rendered ineffective assistance by conducting an inadequate investigation of that juror's sleep behavior.

After being unsuccessful at the state level, Anderson unsuccessfully sought habeas corpus relief in federal district court. Anderson then appealed to the Ninth Circuit, which noted that Anderson's juror affidavits and juror testimony about the juror's sleeping were inadmissible under Federal Rule of Evidence 606(b). The Court did, however, find that Anderson presented admissible evidence in the form of an 

expert report, which conclude[d] that it [wa]s "quite likely" that the juror ha[d] a sleeping disorder, that it [wa]s "probable that [the juror] was in fact asleep for brief periods of a few minutes at a time throughout the trial," and that the juror "would not be able to reliably estimate how much, if any, testimony he missed...." 

According to the court, "The expert report [wa]s based in part on the inadmissible juror evidence, but its conclusions are still admissible. See Fed.R.Evid. 703." Ultimately, however, the Ninth Circuit denied Anderson habeas relief because it presumed that the state trial court correctly presumed that sleep was not a “significant problem” for the juror in question during trial.

Now, frankly, I think that jurors should be able to testify about certain types of jury misconduct, such as jurors sleeping during trial/deliberations. But if courts apply Federal Rule of Evidence 606(b) to, inter alia, protect jurors from harassment by the losing party and preserve the finality of verdicts, I don't see how testimony such as the expert's testimony in Terhune should be admitted. Because, if it is, losing parties can harass jurors in an attempt to learn about juror misconduct so that they can have an expert testify pursuant to  Federal Rule of Evidence 703 that in his opinion the verdict was improperly reached.

-CM