EvidenceProf Blog

The Big C: Supreme Court Of Minnesota Finds Statements By Cancer-Ridden Declarant Weren't Dying Declarations

Like its federal counterpart, Minnesota Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

So, let's say that a declarant makes a statement while terminally ill with cancer, but the statement does not concern his cancer. Does the statement qualify as a dying declaration? According to the recent opinion of the Supreme Court of Minnesota in Roby v. State, 2011 WL 6783876 (Minn. 2011), the answer is "no."

In Roby, Gary Roby was convicted of aiding and abetting the crimes of first-degree premeditated murder, first-degree murder while committing aggravated robbery, and second-degree intentional murder for his role in the shooting death of Marlizza McIntyre. After he was convicted and unsuccessfully appealed his conviction, Roby filed several petitions for postconviction relief.

One of these petitions sought relief based upon the affidavit of C.H., one of Roby's close relatives. AT Roby's initial trial, his brother, C.T., testified, inter alia, that Roby brought him the murder weapon after the shooting. According to C.H.'s affidavit, this testimony was a lie. Roby thus claimed that the "affidavit would make a court 'reasonably well-satisfied' that C.T.'s testimony at trial was false, and that without C.T.'s false testimony, the jury might have reached a different conclusion."

The Supreme Court of Minnesota disagreed, concluding that

The evidence in C.H.'s affidavit fails the newly discovered evidence test in the statute because it cannot, as a matter of law, establish Roby's innocence by clear and convincing evidence....This is so because C.T.'s statements to C.H. are inadmissible hearsay, and C.T. is dead. Roby, however, argues that C.T.'s statements would be admissible because he made the statement in belief of his impending death. While C.H. states that C.T. made the statements in the affidavit to her while he was dying of colon cancer, the statements do not constitute "dying declarations" because they do not "[concern] the cause or circumstances of what the declarant believed to be impending death." See Minn.R. Evid. 804(b)(2)....Because C.T.'s statements are inadmissible, C.H.'s affidavit cannot prove Roby's innocence by clear and convincing evidence.

-CM

Child Bride: Supreme Court Of Louisiana Finds Evidence Of Marriage To Child Bride Admissible To Prove Lustful Disposition

La. C.E. art 412(2)(A) states that

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

This Rule is somewhat similar but also somewhat different from Federal Rule of Evidence 414(a), which provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what's the difference? Well, in many jurisdictions, the age at which an individual can consent to a marriage is often lower than age at which an individual can consent to sexual acts. And there can't be statutory rape between a husband and a wife. What this means is that an adult who engages in sexual acts with a minor of a certain age is engaging in statutory rape if the minor is not his wife while an adult who engages in sexual acts with a minor of the same age is not engaging in statutory rape if the minor is his wife. 

So, let's say that a defendant is charged with aggravated incest against a minor and previously married his wife (and engaged in sexual acts with her) when he was an adult and she was 14 year-old. Is evidence of the marriage and marital relations admissible under Federal Rule of Evidence 414(a)? No. Is it admissible under La. C.E. art 412(2)(A)? As the recent opinion of the Supreme Court of Louisiana in State v. Wright, 2011 WL 6091243 (La. 2011), makes clear, the answer is "yes."

In Wright, the facts were as stated above, with Michael Wright being charged with aggravated incest based upon acts allegedly committed against his 17 year-old son, BK. At trial, the prosecution presented evidence of Wright's marriage and marital relations with BC, whom Wright married when she was 14 years-old and a seventh grade classmate of BK. Now, there was also evidence of sexual relations between Wright and BK before they were married, but, after Wright was convicted, he appealed, claiming that evidence of his marriage and marital relations with BC was erroneous because they were both legal. 

The Court of Appeals of Louisiana agreed with Wright, but the Supreme Court of Louisiana disagreed. According to the Louisiana Supremes,

The State does not argue this was a crime, but rather argues such evidence was relevant and admissible to explain the actions of BK, to complete the story of what happened and the context in which it happened, and to show the defendant's lustful disposition toward children.

And, based upon the language of La. C.E. art 412(2)(A), you can see why. Evidence of Wright's marriage and marital relations with BC was "evidence of the accused's commission of another...act...which indicate[s] a lustful disposition toward children..." It doesn't matter that the marriage and marital relations were not a "crime," "wrong," or "child molestation." As long as they showed a lustful disposition toward children, they were admissible (regardless of the fact that the genders of BC and BK were different, according to the court).

Conversely, under Federal Rule of Evidence 414(a), only evidence of prior acts of "child molestation" are admissible. Evidence of Wright's marriage and marital relations with BC was not evidence of "child molestation" and thus would not have been admissible against Wright under Rule 414(a) if his case were decided under the Federal Rules of Evidence.

-CM

Taking Exception: Is Evidence Of Prior Oral Sex By 15 Year-Old Victim Admissible In Prosecution Of 38 Year-Old?

A 38 year-old defendant is charged with four counts of sexual conduct with a minor, and it is undisputed that he engaged in four acts of oral sexual intercourse with the victim, who was 15 years-old. The defendant, however, seeks to present evidence that the victim had engaged in oral sex with two other individuals, claiming that it went to his belief that the victim was eighteen or older. Should the court deem this evidence admissible? According to a trial court the answer is "yes," and it may reach the same conclusion after a remand from the Court of Appeals of Arizona.

In State ex rel. Montgomery v. Duncan, 2011 WL 6778782 (Ariz.App. Div. 1 2011), the facts were as stated above, with the trial court deeming evidence of the the victim's other sexual acts admissible despite Arizona's rape shield law, which states that

A. Evidence relating to a victim's reputation for chastity and opinion evidence relating to a victim's chastity are not admissible in any prosecution for any offense in this chapter. Evidence of specific instances of the victim's prior sexual conduct may be admitted only if a judge finds the evidence is relevant and is material to a fact in issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence, and if the evidence is one of the following:

1. Evidence of the victim's past sexual conduct with the defendant.

2. Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or trauma.

3. Evidence that supports a claim that the victim has a motive in accusing the defendant of the crime.

4. Evidence offered for the purpose of impeachment when the prosecutor puts the victim's prior sexual conduct in issue.

5. Evidence of false allegations of sexual misconduct made by the victim against others.

Here was the rationale given by the trial court for admitting the evidence:

[This is] why I'm allowing its admission. I view this evidence differently than what the rape shield law was designed to protect against. The rape shield law was not designed to protect against a defendant from being able to raise a theory of defense that goes to an element of the offense, which this does. It also goes to confrontation. So there's actually two reasons that this is both relevant and I think would be reversible error to preclude.

I do think a limiting instruction is appropriate. But, again, the Court finds it to be relevant to the theory of defense, specifically to refute the state of mind element of the offense, and with respect to confronting and cross-examining the victim when the victim testifies.

After this ruling, the State brought a special action in the Court of Appeals of Arizona, claiming that this ruling was erroneous. The appellate court initially found that the evidence was inadmissible under the rape shield law itself because, inter alia, the evidence did not satisfy any of the five enumerated exceptions. The court then noted that the trial court still could have admitted the evidence if it found that its exclusion would have violated the defendant's Constitutional rights, such as his right to due process, his right to present a defense, and his right to confrontation.

And, according to the court, evidence can be admissible "notwithstanding the statutory bar if that evidence 'has substantial probative value and when alternative evidence tending to prove the issue is not reasonably available.'" That said, the court found that "the trial court did not engage in any balancing to determine whether there was a due process or other constitutional violation that would occur if the statute was given effect and the testimony was precluded."

Thus, the court remanded to the trial court to decide the issue anew, and, in, doing so, it gave the following admonition:

It is not apparent to us how cross-examining the Victim on this evidence will aid in the truth-seeking process as to what Defendant's belief was as to the Victim's age. Thus, the only affirmative inquiry that needs to be made is whether Defendant, in his testimony, should be permitted to testify on direct about how the Victim's alleged statements that the Victim had previously engaged in oral sex led Defendant to conclude that the Victim was at least eighteen.

My conclusion: This admonition wasn't nearly strong enough. The appellate court of course was correct to warn that defense counsel shouldn't be able to cross-examine the 15 year-old victim about her alleged past acts of oral sex. But shouldn't the court also have warned that this evidence should be deemed inadmissible, period? There are statistics all over the internet regarding the percentage of teenagers engaging in oral sex. I guess the most applicable one to this case would be the CDC study that found that 30% of females aged 15-17 reported giving oral sex to a male (and 38% reported receiving oral sex from a male).

Given these and other numbers and the general awareness that most people have that a decent percentage of teenagers are engaging in oral sex, what was the relevance of the defendant's proffered evidence? How would it any way tend to establish that the defendant thought the victim was at least 18 years-old? The answer is that it wouldn't. Instead, the evidence was lacking in any probative value and certainly lacking the substantial probative value required to make it admissible. But will the trial court see it that way?

-CM

 

This Is A Recording: Court Of Appeals Of Arizona Finds Videotape Qualifies As Recorded Recollection

Like its federal counterpart, Arizona Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Usually, this recorded recollection exception applies to writings (or typewritten documents), and you can see from the language of Rule 803(5) that this was the original intent of the Rule ("may be read into evidence"). That said, as is made clear by opinions such as the recent opinion of the Court of Appeals of Arizona, Division 1, Department E., in State v. Silva-Acosta, 2011 WL 6747389 (Ariz.App. Div. 1 2011), courts have also found that the exception covers videotapes.

In Silva-Acosta, Jose Jaime Silva–Acosta was convicted of molestation of a child and sexual abuse. 

The victim was seven years old at the time of trial. She provided conflicting testimony regarding her ability to remember specifics of the unlawful touching underlying the charges against Silva–Acosta. For example, although the victim testified she could not remember the incident, she also testified that Silva–Acosta touched her "private." She first testified he touched her breast with his hand and licked her breast, but later testified he did not lick her. In light of these inconsistencies, the State sought to play for the jury a video recording of the forensic interview conducted with the victim six days after the incident. Over Silva–Acosta's objection, the court permitted the recording to be played for the jury. The recording was not admitted in evidence.

After he was convicted, Silva-Acosta appealed, claiming, inter alia, that the video recording was inadmissible hearsay. The Court of Appeals of Arizona disagreed, concluding that

the victim had difficulty remembering the details of the incident at trial. However, she also testified that she remembered talking to the police about the touching and that her memory regarding the incident was better at the time of the interview, less than a week after the alleged crimes were committed. Consequently, the recorded interview squarely fits the definition of a recorded recollection and therefore was admissible as a hearsay exception under Rule 803(5)....The superior court accordingly did not abuse its discretion in allowing the jury to view and hear the recording.

-CM

Collateral Damage: Court Of Appeals Of Arizona Finds Collateral Evidence Rule Doesn't Apply To Bias Evidence

Like its federal counterpart, Arizona Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The portion of Rule 608(b) that excludes extrinsic evidence of specific instances of conduct, however, only applies to instances of conduct unrelated to the case at hand used to prove that a witness is generally a liar. For instance, under Rule 608(b), defense counsel could ask an (eye)witness for the prosecution whether he ever cheated on his taxes but could not prove the act (of cheating) through extrinsic evidence. Conversely, defense counsel could both ask the (eye)witness whether some specific act (such as the defendant stealing his girlfriend) rendered him biased against the defendant and prove this act through extrinsic evidence, as is made clear by the recent opinion of the Court of Appeals of Arizona,Division 1, Department E., in State v. Herrera, 2011 WL 6747405 (Ariz.App. Div. 1 2011).

In Herrera, Hector Alberto Herrera appealed his convictions and sentences in one case for aggravated assault and assault and the resulting revocation of his probation and sentence in another case. Reyna P. was the alleged victim of his assaults. On appeal, Herrera claimed that

the superior court abused its discretion in allowing the State to impeach Reyna P. with evidence of the number of visits she had made to him in jail, evidence that on some of these visits she had identified herself as his "girlfriend," and evidence of the numerous phone calls he made to her from jail. 

Specifically,

the court erred in admitting extrinsic evidence of Reyna P.'s jail visits and her identification of herself as his girlfriend because the evidence violated "a long-standing prohibition on impeachment with specific conduct that fell short of a felony conviction" and a prohibition against "bringing in extrinsic evidence to prove the collateral matter."

Herrera, of course, was referring to Arizona Rule of Evidence 608(b) and the so-called collateral evidence rule. That court, however, found this rule inapplicable to the impeachment of Reyna P. because

We have held, however, that "Rule 608(b) neither blocks an inquiry about conduct which is probative of bias nor precludes introduction of extrinsic evidence to prove such conduct."...

The State offered the evidence at issue in this case to show Reyna P. was biased in favor of Herrera and had a motive to lie for him, purposes that by definition are not "collateral."

-CM

E Tu, Bruton, Take 2: Eastern District Of Michigan Finds Nontestimonial Statements Beyond Scope Of Bruton

The statements from John Henry Williams to Kareemah Greer, Deville Thedford, Richard Peeples, and Donnell Hornbuckle concerning petitioner's involvement in the robbery and murder do not qualify as testimonial statements covered by the Confrontation Clause because they were casual remarks made to a friend or family member and not ones made to law enforcement....Morever, because the Confrontation Clause has no applicability to non-testimonial statements, they may be admitted even if they lack indicia of reliability. See Whorton v. Bockting, 549 U.S. 406, 420...(2007). Thus, the admission of Williams' statements to Greer, Thedford, Peeples, and Hornbuckle did not violate petitioner's Sixth Amendment right to confrontation. Frazier v. Scutt, 2011 WL 5507 383 (E.D.Mich. 2011) (emphasis added).

Following up on my post from yesterday, the recent opinion of the United States District Court for the Eastern District of Michigan in Frazier v. Scutt is yet another example of a court finding that nontestimonial statements are beyond the scope of the the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004). And, I would argue that it is yet another example of a court getting it wrong.

In Scutt, Corey Frazier appealed from his conviction for first-degree felony murder, which resulted from a joint jury trial with his co-defendant, John Henry Williams. At trial, Williams did not testify, but the prosecution did admit several of his casual comments to friends and family members in which he admitted his involvement in the murder and claimed that Frazier pulled the trigger on the gun that fired the fatal shot.

Frazier unsuccessfully appealed his conviction in the Michigan state court system on the ground that the admission of Williams' statements violated the Bruton doctrine, and he then unsuccessfully filed a petition for writ of habeas corpus with the Eastern District of Michigan. As you can see from the block quote introducing this post, that court told Frazier "no dice" because Williams' statements were nontestimonial and the Confrontation Clause is (allegedly) only concerned with testimonial hearsay after Crawford and its progeny.

But here's the thing that almost all courts seem to be missing: Crawford only overruled Ohio v. Roberts, which had no effect on the Bruton doctrine, and the Supreme Court's opinion in Whorton v. Bockting, cited by the Eastern District of Michigan, only confirms this. This being the case, Crawford and its progeny should also have no effect on the Bruton doctrine.

As noted yesterday, under

Ohio v. Roberts, even if hearsay were admissible against a criminal defendant under an exception to the rule against hearsay, its admission still violated the defendant's rights under the Confrontation Clause if the hearsay declarant didn't testify at trial unless the declarant were "unavailable" and the statement had adequate indicia of reliability....

Conversely, the Bruton doctrine does not address the question of when hearsay admissible against a criminal defendant nonetheless violates the Confrontation Clause. Instead, it deals with the question of when hearsay inadmissible against a co-defendant violates the Confrontation Clause. And it answers that question by looking at how harmful the statement is to the co-defendant not by looking at whether the statement satisfies  prevailing test of Constitutional reliability. 

This was made clear in Cruz v. New York, 481 U.S. 186 (1987), in which the Court held that the question of whether a hearsay statement that is inadmissible against a co-defendant has adequate indicia of

reliability...cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury's failure to obey is likely to be inconsequential. The law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted. Having decided Bruton, we must face the honest consequences of what it holds.

Of course, Crawford overruled Ohio v. Roberts and replaced its adequate indicia of reliability test with the testimonial/nontestimonial dichotomy. But was this new test meant to serve as a limitation on the Bruton doctrine in a way that the prior test never did? Whorton v. Bockting seems to suggest that the answer is "no." In Bockting, the Court addressed the question of whether Crawford is more or less restrictive than Ohio v. Roberts as follows:

With respect to testimonial out-of-court statements, Crawford is more restrictive than was Roberts, and this may improve the accuracy of factfinding in some criminal cases. Specifically, under Roberts, there may have been cases in which courts erroneously determined that testimonial statements were reliable....But whatever improvement in reliability Crawford produced in this respect must be considered together with Crawford's elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.

What we see here is the Court in Bockting construing Crawford quite narrowly. It basically construes Crawford as doing two things: (1) creating Confrontation Clause protection for testimonial statements that were previously admitted because they had adequate indicia of reliability; and (2) removing Confrontation Clause protection from nontestimonial statements that were previously excluded because they lacked adequate indicia of reliability. And if those are the only two things that Crawford did, it had no effect on Bruton.

Why? Well, as the Court itself found in Cruz, the Bruton doctrine had nothing to do with the adequate indicia of reliability test. Co-defendant statements were excluded under the Bruton doctrine because they were inadmissible against other defendants, not because they lacked adequate indicia of reliability. Indeed, such statements could have had adequate indicia of reliability and still been inadmissible under Bruton. Therefore, when the Supreme Court removed Confrontation Clause protection from statements in category #2 above, this removal should have had no effect on the Bruton doctrine because statements covered by the doctrine did not fall under category #2.

-CM 

E Tu, Bruton?: Supreme Court Of Nevada Finds Bruton Doctrine Doesn't Cover Nontestimonial Hearsay

The Confrontation Clause of the Sixth Amendment states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. In Crawford v. Washington, 541 U.S. 36 (2004), however, the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.

In the wake of Crawford, several courts have been presented with the question of whether the Bruton doctrine still covers nontestimonial hearsay in the wake of Crawford. Almost every court, including the Supreme Court of Nevada in its recent opinion in Perez v. State, 2011 WL 4527520 (Nev. 2011), has answered this question in the negative. I continue to contend that these courts are wrong.

In Perez, Gladys Perez was convicted of child neglect resulting in substantial bodily harm, child abuse resulting in substantial bodily harm, and first-degree murder after a joint jury trial in which her boyfriend, Marc Colon, was a co-defendant. At trial, Colon did not testify, but the prosecution admitted some of his statements to a minor relative, such as his statement that "if we get caught, it's [Perez's] dumb ass fault."

After she was convicted, Perez appealed, claiming, inter alia, that the admission of these statement violated the Bruton doctrine. The Supreme Court of Nevada, like many courts before it faced with similar arguments, quickly rejected it, finding that

Colon made the statement to a minor relative. The statement was spontaneous and made during a private, casual conversation. Colon's statement was not made for the purpose of gathering evidence for possible use at a later trial or as a recount of past events made in a more formal setting. It is clear that Colon's statement, under these circumstances, was nontestimonial; thus, the Bruton rule, like the Confrontation Clause itself, has no application....As such, the joint trial did not compromise Perez's specific trial right of Confrontation. 

Pretty simple, right? Crawford and its progeny state that the Confrontation Clause is only concerned with testimonial hearsay. The Bruton doctrine is a species of the Confrontation Clause. Therefore, the Bruton doctrine is only concerned with testimonial hearsay. Right? Wrong.

Crawford's testimonial/nontestimonial dichotomy is the replacement for the Ohio v. Roberts adequate indicia of reliability test. Under Ohio v. Roberts, even if hearsay were admissible against a criminal defendant under an exception to the rule against hearsay, its admission still violated the defendant's rights under the Confrontation Clause if the hearsay declarant didn't testify at trial unless the declarant were "unavailable" and the statement had adequate indicia of reliability. The Court overruled this test in Crawford, holding that the question of whether hearsay admissible against a criminal defendant under an exception to the rule against hearsay violates the Confrontation Clause hinges on whether the hearsay is testimonial.

Conversely, the Bruton doctrine does not address the question of when hearsay admissible against a criminal defendant nonetheless violates the Confrontation Clause. Instead, it deals with the question of when hearsay inadmissible against a co-defendant violates the Confrontation Clause. And it answers that question by looking at how harmful the statement is to the co-defendant not by looking at whether the statement satisfies  prevailing test of Constitutional reliability (set forth by Ohio v. Roberts and now Crawford).

This point is made clear by the Supreme Court's Ohio v. Roberts-era opinion in Cruz v. New York, 481 U.S. 186 (1987), in which the Court held that the question of whether a hearsay statement that is inadmissible against a co-defendant has adequate indicia of

reliability...cannot conceivably be relevant to whether, assuming it cannot be admitted, the jury is likely to obey the instruction to disregard it, or the jury's failure to obey is likely to be inconsequential. The law cannot command respect if such an inexplicable exception to a supposed constitutional imperative is adopted. Having decided Bruton, we must face the honest consequences of what it holds.

In other words, at the time of Cruz, it was irrelevant that a defendant's confession that was inadmissible against a co-defendant had adequate indicia of reliability. As long as it facially implicated the other defendant, it was Constitutionally harmful to the defendant because the jury would use it as (devastating) evidence against him.

The same should hold under Crawford. Who cares whether Colon's statement was an informal statement to a minor relative or a formal confession to a police officer? In either case, he was facially incriminating Cruz, his confession was inadmissible against Cruz, and the jury was certain to use the confession as evidence of Cruz's guilt. Therefore, the court should have found that its admission violated the Bruton doctrine. For a more thorough explication of the topic you can check out my forthcoming article on the subject.

-CM