EvidenceProf Blog

Trust In Me?: DNH Finds That OSHA Report Qualifies For Admission Under Rule 803(8)

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

So, how hard is it for the opposing party to prove that a public record lacks trustworthiness, making it inadmissible under Rule of Evidence 803(8)(B)? According to the recent opinion of the United States District Court for the District of New Hampshire in Masello v. Stanley Works, Inc., 2011 WL 5843494 (D.N.H. 2011), the answer is "pretty tough."

In Masello, Joseph Masello

was standing on a Handy 2–Step provided by his employer, Christmas Tree Shops, hanging beach bags for sale in its store in Salem, New Hampshire. The left front leg of the stool cracked into several pieces, causing it to collapse. Masello fell backward, striking his head on the ground. He was non-responsive, so paramedics were called immediately, just after 3 a.m. The paramedics placed Masello on a back board and took him to the hospital, leaving the store around 3:40 a.m.

One of Masello's fellow employees subsequently retrieved the stool and three broken pieces of the left front leg, but was unable to locate the toe. So, as mentioned at the outset, the parties disagree over whether the toe broke off in the accident and could not be found afterwards or whether the toe had already broken off before Masello stepped on the stool that night. This disagreement is significant because the defendants' theory is that the stool collapsed due to the absence of the toe, which allowed the leg to slide out from under the stool when Masello stood on it, while the plaintiff's theory is that the stool collapsed due to the absence of a rounded edge on the bottom of the ribs connecting the first step to each of the front legs.

As a result of striking his head in the fall, Masello suffered a skull fracture and an acute subdural hematoma, which caused him to fall into a coma. Despite a craniotomy to attempt to relieve the pressure on his brain, Masello never regained consciousness. He died approximately two weeks later.

His wife, acting as the administratrix of his estate, thereafter brought an action against Stanley Works, Inc. (the distributor of the stool) and Zag Industries (the manufacturer of the stool) sounding in wrongful death and loss of consortium. The wife thereafter filed a motion in limine seeking to preclude the defendants from introducing evidence of an OSHA investigation and report.

Just over two weeks after Masello's accident, OSHA conducted a "comprehensive inspection" of the Salem Christmas Tree Shops location, interviewing, among others, the store's manager and its director of loss prevention. The manager told the investigator that "after the accident they examined the rest of their stools and five of the remaining stools were also found defective and taken out of service" The investigator also took photographs of the broken stepstool involved in the accident, and reviewed results of the tests on the Handy 2–Step performed in the late 1990s.

Based on this inspection, which [wa]s summarized in a 10–page report, OSHA concluded that Christmas Tree Shops had violated § 5(a)(1) of the Occupational Safety and Health Act of 1970...in that its "employees were exposed to the hazard of falling while working from a damaged 'Handy 2–Step' plastic stool." OSHA deemed this a "serious" violation and fined the company $5,000. Christmas Tree Shops did not contest either the finding of violation or the amount of the fine.

According to the wife, this report was "untrustworthy because the investigation did not include 'any sworn statements, cross-examination or proceedings in an adjudicatory venue," making it inadmissible under Rule of Evidence 803(8)(B). The court disagreed, concluding that

the test for trustworthiness...is not nearly so stringent. To the contrary, as this court recently observed, the court of appeals has held that "an initial presumption of admissibility" attaches to an officer's accident report, including its conclusions, so long as it is based on his or her factual investigation (which, again, the report here indisputably was)....

So, while the fact that the report was not the product of an adjudicatory hearing at which witnesses were sworn and cross-examined may have some bearing on its trustworthiness,...it cannot be called “untrustworthy” for that reason alone....And the plaintiff has not pointed out any other deficiency calling the trustworthiness of the report into question, such as the timeliness of the investigation.

-CM

Entrapment: 9th Circuit Finds Character An Essential Element Of (Disproving) Entrapment Defense

Federal Rule of Evidence 405(b) provides that

When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.

So, when is character an essential element of a charge, claim, or defense? Pretty rarely. It is an essential element in a negligent hiring/supervision case because how can a plaintiff prove, for example, that a company was negligent in hiring/supervising a driver with a history of DUIs without presenting evidence of these DUIs? It's also an essential element in a defamation case because how can a defendant prove, for example, that the story it published accusing a plaintiff-politician of adultery was true and thus not defamatory without presenting evidence of the plaintiff's extramarital affairs. And, as the recent opinion of the Ninth CIrcuit in United States v. Reed, 2011 WL 5869494 (9th Cir. 2011), makes clear, character is also an essential element of (disproving) an entrapment defense.

In Reed, Deonte Reed was convicted of conspiracy to interfere with commerce by robbery, conspiracy to possess cocaine with intent to distribute, possession of a firearm in furtherance of a drug trafficking crime, and aiding and abetting. At trial, Reed claimed that he was entrapped, and, in addressing his appeal, the Ninth Circuit noted that 

When a defendant asserts entrapment as a defense, the government must prove beyond a reasonable doubt that either "'(1) the defendant was predisposed to commit the crime before being contacted by government agents; or (2) the defendant was not induced by the government agents to commit the crime.'"

The court then went on to note that it looks to five factors in the predisposition determination:

(1) the character or reputation of the defendant, including any prior criminal record, (2) the party who made the initial suggestion, (3) whether profit was a motive, (4) evidence of reluctance by the defendant, and (5) the nature of the government's inducement.

In appealing his conviction, Reed claimed that evidence of his other bad acts were inadmissible propensity character evidence, but the Ninth Circuit disagreed, finding that his character was an essential element of his entrapment defense, meaning that the evidence was admissible under Federal Rule of Evidence 405(b).

-CM

Take Me To Another Rule: Supreme Court Of Tennessee Finds Court Of Appeals Applied Wrong Version Of Rule 703

Similar to its federal counterpart, Tennessee 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. 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. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness. (emphasis added).

The third, bolded sentence in Rule 703 was not added until 2009, however, and the appeal that the Supreme Court of Tennessee heard in Holder v. Westgate Resorts Ltd., 2011 WL 6148588 (Tenn. 2011), was from a case that took place before it was added. So, what effect did this have on the court's decision?

In Holder, 

James Holder sustained multiple injuries when he fell down a stairway while attempting to exit a condominium owned and operated by Westgate Resorts Ltd. ("Westgate"). Mr. Holder and his wife, Laura Holder, filed a complaint against Westgate in the Circuit Court for Sevier County alleging that the configuration of the stairs, the corridor at the top of the stairs, and the doorway through which Mr. Holder was attempting to exit the condominium constituted an unsafe condition. Mr. Holder further alleged that Westgate knew or should have known of the unsafe condition and that Westgate's failure to warn Mr. Holder or correct the condition caused his injuries. Mrs. Holder asserted a claim for loss of consortium.

At trial,  Westgate presented the expert testimony of James Horner II, the deputy building official for the City of Gatlinburg, who testified that the corridor complied with the applicable code. Specifically,

Mr. Horner testified extensively concerning the applicable building code and his interpretation of the code. The Holders' expert had testified that the applicable building code required a landing width of forty-four inches. Contrary to the testimony of the Holders' expert, Mr. Horner testified that the building code required a landing width of thirty-six inches. Following this testimony, counsel for Westgate asked Mr. Horner whether he consulted any professional resources in his evaluation of this issue. Mr. Horner replied, "To be perfectly honest with you, I felt that I was correct in my reading of it, but I did call the International Code Council and I spoke with them." The trial court then sustained an objection to Mr. Horner's testimony and ordered that "the last question" be diregarded. 

The jury eventually

returned a verdict finding Westgate ninety percent at fault and Mr. Holder ten percent at fault. The jury assessed damages in the amount of $220,000, which the trial court reduced by ten percent for the comparative fault attributed to Mr. Holder.

Westgate thereafter appealed, claiming that the trial court erred by excluding Mr. Horner's testimony as to the instructions he received from officials of the International Code Council because his testimony was admissible pursuant to Tennessee Rule of Evidence 703. The Court of Appeals of Tennessee agreed with Westgate that this was error but deemed the error to be harmless, prompting Westgate's appeal to the Supreme Court of Tennessee.

The Tennessee Supremes noted that the Court of Appeals of Tennessee applied the post-amendment version of Rule 703, which contains the third, bolded sentence above. According to the court, however, this was erroneous because this version of the rule did not take effect until four months after trial. This meant that

According to the rule in effect at the time of the trial, any admission of the basis of an opinion for the purpose of assisting the jury in understanding the opinion was subject to the provisions of Tennessee Rule of Evidence 403.

This might actually have made it likelier that the testimony should have been admitted because Rule 403 allows for the admission of evidence unless its probative value is substantially outweighed by the danger of unfair prejudice while the third sentence of post-amendment Rule 703 only allows for the admission of otherwise inadmissible evidence if its probative value substantially outweighs its prejudicial effect.

In the end, though, none of this mattered for the Supreme Court of Tennessee, which found that under either rule, otherwise inadmissible evidence underlying an expert's opinion can only be admitted to assist the jury in evaluation the expert's opinion, not to prove the truth of the matter asserted in the underlying evidence. And, according to the court, this made the underlying evidence inadmissible:

 

Turning to the facts of this case, the trial court prevented Mr. Horner from continuing his testimony concerning his call to the International Code Council. The offer of proof states that Mr. Horner would have testified that he received instruction from the International Code Council and that he conformed his evaluation to the instructions he received. Although this proffer does not directly state the substance of the instructions from the International Code Council, the testimony indirectly does so by confirming the method used by Mr. Horner. The trial court determined that the evidence was offered for the truth of the information provided to Mr. Horner and was therefore hearsay. As such, its admission was not to assist the jury in understanding Mr. Horner's opinion but to insert the opinion of another expert.

Experts routinely consult other experts when forming their opinions. Rule 703, however, does not permit a testifying expert to act as the "mouthpiece" of a non-testifying expert by simply parroting the non-testifying expert's opinion....The opinion to which an expert testifies must be his own.

 

-CM

Law & Crit, Take 7: "12 Angry Men" & The Juror Who Was Dismissed For Acting Like Henry Fonda

Consider two scenes:

Scene One

Juror # 8: I just want to talk.

Juror # 7: Well, what's there to talk about? Eleven men in here think he's guilty. No one had to think twice about it except you.

Juror # 10: I want to ask you something: do you believe his story?

Juror # 8: I don't know whether I believe it or not—maybe I don't.

Juror # 7: So how come you vote not guilty?

Juror # 8: Well, there were eleven votes for guilty. It's not easy to raise my hand and send a boy off to die without talking about it first....We're talking about somebody's life here. We can't decide in five minutes. Supposin' we're wrong.

Scene Two

Juror # 6: I said...this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt....

Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it....I would say that two-thirds of the jurors have tried to persuade—have actively tried to persuade...him that his current view is incorrect....

Juror # 4: Well, I guess he believes from the evidence that he's seen that there hasn't been sufficient proof....

Juror # 5: I think the question may have been raised: "Do you have a political agenda?" I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said.

Juror # 9: Well, he said this is a serious thing, and I don't really feel that there is enough cause for—or something to that effect....What he said was, "I wouldn't want to take anyone's freedom away, unless," you know, "I was sure that certain things took place."....

This language is taken from Judge Reinhardt in the Ninth Circuit's recent opinion in Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011). As Judge Reinhardt went on to note,

The first passage above is dialogue from the classic Academy Award-winning 1957 film, 12 Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner's murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others.

So, what happened to the holdout juror, and how does this relate to Alyssa Rosenberg's latest post in her Pop Culture and the Death Penalty Project, which deals with what is (in my opinion) Sidney Lumet's masterpiece and the finest slice of celluloid ever concerning the American legal system?

Well, the trial court dismissed that juror on the ground that he was "biased" against the prosecution. With an alternate juror in place, the jury returned a verdict convicting the defendant of first-degree murder, and the defendant was sentenced not to death but to something like it: life imprisonment without the possibility of parole.

This takes me to Rosenberg's post. In the post, Rosenberg analyzes the following exchange between angel (Henry Fonda's Juror 8) and devil (Lee J. Cobb's Juror 3):

"Are you his executioner?" Juror 8 asks the man who is most determined to convict no matter the evidence. "I’m one of them," Juror 3 says, and when Juror 8 asks if he wants to pull the switch on the electric chair himself, insists, "For this kid, you bet I would." Juror 8′s contempt is withering: "I feel sorry for you. What it must feel like to want to pull the switch. Ever since you walked into this room you’ve been acting like a self-appointed public avenger. You want this boy to die because you personally want it, not because of the facts. You’re a sadist." I worry that a speech like this today would come across as the rankest liberal condescension. But it’s a critical point to make, that bloodlust isn’t admirable. Even if a dispassionate examination of the facts reveals someone to be guilty, there’s nothing attractive about wanting to kill them.

Cavazos gives us a window into the question of how such a speech would come across today, if a juror even had the temerity to make it. See, e.g., Henri v. Curto, 891 N.E.2d 135, 142 (Ind.App.2008) ("However, the statement by the bailiff conveys that jurors in the minority would face the daunting task of swaying all the other jurors if they are to stick to their convictions, a task surmountable in less than two hours on the silver screen if you are Henry Fonda, but a task that could be overwhelming in real life for the average juror.").

And that window shows us that, at least under the facts of Cavazos, that juror would be accused of a "political agenda" and found unfit to serve as a juror. Here's the short of Judge Reinhardt's opinion granting the defendant's petition for writ of habeas corpus:

Twelve Angry Men made for great drama because it violated the sanctity of the jury's secret deliberations by allowing the audience into the jury room. It was, of course, a work of fiction. We are presented here with a similar intrusion into heated deliberations involving a holdout juror, except that this one took place in open court, and it resulted in a woman being convicted and sentenced to life imprisonment after the holdout was dismissed. Under the precedent that existed when petitioner's conviction became final (and exists today as well), the trial court's actions violated the petitioner's Sixth Amendment rights, as incorporated with respect to the states under the Fourteenth Amendment. We therefore conclude that petitioner is in custody in violation of the Constitution, reverse the judgment of the district court, and remand with instructions to grant the writ.

For the long of it, you can check out the court's complete opinion, but here are the basics: When jurors expressed concerns about a holdout juror, the trial judge interrogated the jury foreman (ironically, Juror 8), who

testified that Juror No. 6 had expressed his view that first degree murder was a severe charge which affected the "way he interprets the evidence and the standard he uses for doubt." Juror No. 6, according to the foreman, had made a "fairly clear statement...that connects the severity of the charge with—explicitly of first degree murder with his need for a higher standard." The foreman conceded that Juror No. 6 had not explicitly expressed an unwillingness to follow the law or the jury instructions on the standard of proof. He also agreed that the juror had attempted to explain "the basis for his reasonable doubt" to the other jurors many times and had actively engaged in "intellectual conversation with them, listening to their questions, trying to answer them."

In other words, Juror 6 was the Henry Fonda of the jury. He did what he was supposed to do as a juror. He communicated the gravity of the charge against the defendant to other jurors and tried to get them to take their job seriously...and he was rewarded by being kicked off the jury. The trial judge was "inclined to rule that the juror has engaged in misconduct. He's applying a higher burden of proof than the law requires...." Thus he was dismissed, according to the judge,

"not because he's not deliberating and not because he's not following the law." Instead, "he is dismissed without any question in my mind as a biased juror," because "his mind is bent...against the prosecution," as evidenced by his statements concerning the government's burden of proof....

Of course, this decision was ridiculous, but it was affirmed by every other state court in California that handled the defendant's appeal. And it was upheld by the United States District Court for the Central District of California, which denied his petition for writ of habeas corpus. It wasn't until the case reached the Ninth Circuit that the defendant was finally given relief.

So, is Cavazos an aberration, or is it indicative of how a juror such as Henry Fonda's character would be treated today? Unfortunately, as several cases I've profiled on this blog make clear, the answer seems to be the latter. We had the case about the juror being called "stupid" and "close-minded," before the foreperson blocked the door to prevent her from reporting the deadlock to the judge (with the holdout juror eventually being swayed, the defendant being convicted, and the conviction later being upheld on appeal). We had the case of a jurors cursing, swearing, and throwing papers at a holdout (with the juror again eventually being swayed and the jury's verdict again being upheld on appeal). And my research has uncovered several cases in a similar vein that I simply haven't shared (yet) on this blog. 

12 Angry Men is often held out as the Platonic ideal of what jury deliberations should look like. So, what do cases like Cavazos tell us about how far we are from that ideal?

-CM

Plea(se) Plea(se) Me: Court Of Appeals Of Texas Finds Rule 410 Violation Not Plain Error

Like its federal counterpart, Texas Rule of Evidence 410(4) states that:

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

any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.

So, let's say that the prosecutor violates Rule 410(4), but the defense does not object. If the defendant is convicted and appeals, should the court reverse for plain error? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Parker v. State, 2011 WL 5984539 (Tex.App.-Fort Worth 2011), the answer is "no."

In Parker, Dominque Parker was convicted of possessing four or more but less than four hundred grams of methylenedioxy methamphetamine (ecstasy). Previously, at trial, and without an objection from Parker, the prosecutor stated,

Your Honor, the State's offer prior to the open plea had been 10 years TDC....We based on that his—the escalating nature of his criminal history. He's always been able to receive a break from the State one way or another over as many cases he's picked up. He's continued to demonstrate criminal behavior, now moving into actual narcotics transactions. And, although the State waived the intent to deliver language in good faith as part of an attempt to get an open plea, his own admissions to the PSI officer indicate that I probably should have not done that, since he clearly had the intent to sell that dope in exchange for money, but that being said, Your Honor, the State's last offer was 10 years TDC. I defer the Court for disposition in this case.

After he was convicted, Parker appealed, claiming that this statement violated Rule 410(4), claiming that the Rule was a "systemtic requirement," meaning that its violation necessitated a new trial even in the absence of a timely objection.

In response, the Court of Appeals of Texas, Fort Worth, acknowledged that the requirement of a timely objection

"does not apply to rights which are waivable only or to absolute systemic requirements, the violation of which may still be raised for the first time on appeal."... Systemic requirements, also known as absolute requirements or prohibitions, are laws that a trial court has a duty to follow even if the parties wish otherwise....Systemic requirements include jurisdiction of the person or subject matter, a constitutional requirement that a district court conduct its proceedings at the county seat, and a constitutional prohibition against ex post facto laws...."Waivable only" rights include the right to the assistance of counsel and the right to trial by jury.

The court then found, however, that

Appellant does not direct us to any authority, and we find none, characterizing the State's discussion of plea negotiations or of the defendant's criminal history during closing argument as systemic, waivable-only, or otherwise "fundamental" or "plain" error....

Moreover, in Whitaker v. State, the court of criminal appeals required preservation of a contention that witnesses improperly discussed a plea negotiation during the guilt and punishment phases of trial; the court noted, "[T]he record clearly reflects that appellant made no objection to the State's references to the...plea negotiations. Appellant, therefore, procedurally defaulted any error in these references." 

-CM

Going Unnoticed: Court Of Appeals Of Indiana Affirms Trial Court's Rape Shield Ruling

Indiana Rule of Evidence 412(a)(3), an exception to Iowa's rape shield rule, states that evidence of an alleged victim's sexual history can be admitted if it is "evidence that the victim's pregnancy at the time of trial was not caused by the defendant." Meanwhile, Indiana Rule of Evidence 412(b)(1) states that

If a party proposes to offer evidence under this rule, the following procedure must be followed:

A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial.

So, let's say that a defendant charged with child molesting and related crimes believes that another man caused the alleged victim's pregnancy but does not file a written motion at least ten days before trial because the "other man" was uncooperative with his deposition requests. Does this constitute "good cause," such that evidence of the sexual acts between the "other man" and the alleged victim could be presented at trial? According to the recent opinion of the Court of Appeals of Indiana in Jeffers v. State, 2011 WL 6088615 (Ind.App. 2011), the answer is "no."

In Jeffers, the facts were as stated above, with Nathaniel Jeffers being charged with child molesting and related crimes based upon acts allegedly committed against eight year-old A.P., the daughter of his girlfriend. At trial, the prosecution presented evidence that A.P. became pregnant (and aborted her pregnancy) and contracted chlamydia as a result of the sexual acts committed against her by Jeffers. In response, Jeffers sought to present evidence that A.P. was molested by Terry Essex, the brother of A.P.'s mother, who could have been the cause of the pregnancy/chlamydia.

The trial court precluded Jeffers from presenting this evidence, and, after he was convicted, he appealed, claiming, inter alia, that this ruling was erroneous. In addressing this argument, the Court of Appeals of Indina noted that Jeffers failed to comply with the notice requirement of Indiana Rule of Evidence 412(b)(1). Jeffers countered that that Essex had been uncooperative with his deposition requests, meaning that the trial court should have waived the notice requirement based upon good cause. The court disagreed, concluding that

Allegations had been made long before trial that Essex had also molested A.P. Prior to trial, the State represented to the trial court that the allegations were apparently unfounded as no charges would be filed against Essex. Additionally, a witness may assert a claim of Fifth Amendment privilege at a deposition....Consequently, there is no reversible error here, as Jeffers failed to file a pre-trial motion, and did not establish good cause for a later filing of such motion.

-CM

However Much: Court Of Appeals Of Utah Reverses Conviction Based On Improper Exclusion Of Alibi Testimony

Utah Code Annotated Section 77-14-2 states

(1) A defendant, whether or not written demand has been made, who intends to offer evidence of an alibi shall, not less than 10 days before trial or at such other time as the court may allow, file and serve on the prosecuting attorney a notice, in writing, of his intention to claim alibi. The notice shall contain specific information as to the place where the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish alibi. The prosecuting attorney, not more than five days after receipt of the list provided herein or at such other time as the court may direct, shall file and serve the defendant with the addresses, as particularly as are known to him, of the witnesses the state proposes to offer to contradict or impeach the defendant's alibi evidence.

(2) The defendant and prosecuting attorney shall be under a continuing duty to disclose the names and addresses of additional witnesses which come to the attention of either party after filing their alibi witness lists.

(3) If a defendant or prosecuting attorney fails to comply with the requirements of this section, the court may exclude evidence offered to establish or rebut alibi. However, the defendant may always testify on his own behalf concerning alibi.

(4) The court may, for good cause shown, waive the requirements of this section. 

It seems clear to me that under this Section, (1) a defendant must provide pre-trial notice of any alibi evidence; (2) the prosecution must then respond with pre-trial notice of any witnesses who will contradict this alibi evidence; (3) both sides have a continuing duty to disclose after these initial disclosures; (4) failure to comply with (1)-(3) can lead to the exclusion of alibi-related evidence; (5) the court can waive (1)-(3) for good cause shown; and (6) a defendant can always testify on his own behalf concerning alibi even if he fails to comply with (1) and/or (3). According to the recent opinion of the Court of Appeals of Utah in State v. Gallup, 2011 WL 6091688 (Utah App. 2011), however, part (6) of the above was not clear to a Utah trial court, necessitating a reversal of a defendant's conviction.

In Gallup, Jeffrey Gallup was convicted of failing to respond to an officer's signal to stop, speeding, and driving on a suspended or revoked operator license. The person who sped and failed to respond to the officer's signal to stop was driving a BMW registered in Gallup's name, but Gallup claimed that he was not the person in the car and sought to testify concerning an alibi. 

It was clear that Galluo could not present extrinsic evidence concerning this alleged alibi because he did not comply with the notice requirement(s) of Utah Code Annotated Section 77-14-2(1), but Gallup claimed that he could still testify concerning his alibi under Utah Code Annotated Section 77-14-2(3). The trial court disagreed, finding that the clause in Section 77-14-2(3) allowing the defendant to testify was still "subject to the notice requirement established in 77-14-2(1)."

After Gallup was convicted, he appealed, claiming that he should have been able to provide alibi testimony under Section 77-14-2(3). The Court of Appeals of Utah agreed, concluding that

The plain language of Section 77-14-2 protects a defendant's ability to "testify on his own behalf concerning alibi,"...regardless of whether he complied with the statute's notice requirement. The statute's use of the word "however" is significant. "However" is a transition word that "indicates a limitation on the preceding rule,"...here, that the rule does not apply to a defendant's right to testify on his own behalf....The use of the term "however" indicates that the defendant's right to testify on his own behalf concerning alibi is excepted from the preceding notice and penalty provisions in the statute. Thus, failure to comply with section 77-14-2's notice requirement grants the trial court discretion to exclude only alibi evidence extrinsic to the defendant's own testimony regarding alibi....A defendant who did not give the prosecution proper notice of alibi evidence may still testify as to that alibi but cannot support his testimony with that of other witnesses or evidence. The prosecution is then free to argue any reasonable inferences the lack of supporting alibi evidence may warrant.

And, because of this and other errors, the Court of Appeals of Utah reversed Gallup's conviction.

-CM