EvidenceProf Blog

Self Preservation Instinct: Washington Court Finds Luce Doctrine Applies To Rule 404(b) Evidence

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. But what about if the trial court determines that character evidence will be admissible in the event that a defendant testifies at trial and raises a certain defense. Does the defendant need to so testify to preserve that issue for appeal? According to the recent opinion of the Court of Appeals of Washington, Division 2, in State v. Phillips, 2011 WL 396479 (Wash.App. Div.2 2011), the answer is "yes."

In Phillips, Kimberly Phillips was charged with eight counts of first degree theft. Before trial,

the State filed an ER 404(b) motion to admit evidence of Phillips's past forgery and theft crimes against elderly and vulnerable victims in the 1980s. The trial court ruled that although Phillips's past convictions would not be admissible for impeachment, they were admissible to rebut the material assertion that the victims consented to give her the money. The trial court ruled that this evidence was admissible under ER 404(b).

Thereafter, Phillips did not testify at trial and did not raise the defense that the victims consented to give her money, and the State did not introduce evidence of her prior convictions. After she convicted, Phillips appealed, claiming, inter alia, that the trial court erred in deeming her prior convictions admissible in the event that she testified. The Court of Appeals disagreed, finding that

Division I of this court addressed a similar question in State v. Mezquia....There, the trial court ruled that evidence of the defendant's prior acts would be admissible under ER404(b), but only if the defendant raised the issue of identity....The defendant decided not to call the witness who would raise the issue, and the ER 404(b) evidence was never admitted....The Mezquia court held that because the defendant failed to put on the witness and the ER 404(b) evidence was not admitted, the defendant had not preserved the issue for appeal....

The Mezquia court analogized the situation to Luce....In Luce, the Court decided that a defendant must testify to preserve an objection to the admissibility of evidence under FED.R.EVID. 609(a)....The Court held that a defendant's testimony was necessary to create a sufficient record on appeal, reasoning that without the defendant's testimony, a reviewing court cannot say whether the State would have actually offered the offending evidence and cannot decide how prejudicial that evidence would have been....The Court held that this rule would discourage defendants from attempting to "plant" reversible error in the proceedings.... 

The court then found that this reasoning applied to the case before it, concluding that

Here, as in Mezquia, the trial court ruled that ER 404(b) evidence was admissible only if the defendant put on a particular defense....Because Phillips did not testify, we cannot predict exactly what would have been admitted at trial. Additionally, whether the convictions would have been used for an invalid ER 404(b) purpose is speculative. And allowing Phillips to challenge the admissibility of her convictions under ER 404(b)  without testifying would arguably allow her to plant an error in her trial as the Supreme Court warned against in Luce....We adopt Mezquia and hold that because Phillips has not preserved this issue for appeal, we will not consider it.

-CM

Not A Helping Hand: DDC Refuses To Appoint Expert To Help Party Under Rule 706(a)

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

And, as the recent opinion of the United States District Court for the District of Columbia in Carranza v. Fraas, 2011 WL 380164 (D.D.C. 2011), makes clear, judges uses Rule 706(a) to help themselves gain a better understanding of complex issues at trial, not to assist one of the litigating parties.

In Fraas, 

The plaintiffs [we]re female farmers who hired the defendant, attorney Phillip Fraas, to represent them in a civil rights discrimination claim against the United States Department of Agriculture ("USDA"). After settlement negotiations with the USDA failed, the plaintiffs commenced [an] action against the defendant for legal malpractice and breach of fiduciary duty, claiming that the defendant failed to exercise reasonable skill, care and diligence while representing them in their civil rights claim. The plaintiffs subsequently filed a motion requesting a court-appointed expert witness, which th[e] court denied.

The plaintiffs thereafter moved for reconsideration of that ruling. According to the United States District Court for the District of Columbia, the plaintiffs were, in effect, asking the court to appoint expert so that they could satisfy their burden on proving the standard of care that Fraas owed to them an violated.  And, according to the court, such an argument did not support an expert appointment under Federal Rule of Evidence 706(a) because "[c]ourts do not...appoint expert witnesses for the purpose of assisting a litigating party." Instead, "[t]he decision to appoint an expert witness lies within the discretion of the court and 'is to be informed by such factors as the complexity of the matters to be determined and the fact-finder's need for a neutral, expert view.'" 

-CM

Telephone Line: TN Court Best Evidence Violation Regarding Jailhouse Telephone Calls Not Plainly Erroneous

Like its federal counterpart, Tennessee Rule of Evidence 1002, Tennessee's Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress or the Tennessee Legislature.

As the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Graves, 2011 WL 398024 (Tenn.Crim.App. 2011), makes clear, however, if a party does not raise a Best Evidence objection at trial, it is unlikely that the party will successfully be able to raise the issue on appeal. 

In Green, Ivan Charles Graves was convicted of first degree premeditated murder and felony murder committed during the perpetration of a kidnapping. At trial, the court allowed for the prosecution to admit into evidence transcripts of jailhouse telephone calls that incriminated Green.  Previously, the State had agreed to "burn" a CD containing the ten calls at issue for the trial court. At trial, however, the State did not introduce the CD and instead only introduced the transcripts, and defense counsel did not raise a Best Evidence objection.

After he was convicted, Graves appealed, claiming, inter alia, that the admission of these transcripts violated Tennessee Rule of Evidence 1002. The Court of Criminal Appeals of Tennessee agreed, finding that

It is not clear from the record why the State did not introduce the CD containing the recorded telephone calls into evidence. Pursuant to the best evidence rule, the CD, not the transcripts, was the best evidence. Furthermore, no testimony was presented from any witness who personally compared the audio recordings to the transcripts to verify their accuracy.

That said, the court found that Graves did not object to the admission of the transcripts at trial, meaning that it could only reverse for plain error, meaning that

(a) the record must clearly establish what occurred in the trial court; (b) a clear and unequivocal rule of law must have been breached; (c) a substantial right of the accused must have been adversely affected; (d) the accused did not waive the issue for tactical reasons; and (e) consideration of the error is "necessary to do substantial justice."

And the court refused to find such plain error because the statements in the jailhouse telephone calls was corroborated by other evidence in the record. In other words, it will be difficult for an appellate court to find plain error in a Best Evidence appeal unless the original writing, recording, or photograph is the sole evidence on a key issue at trial.

-CM

Open And Shut: Supreme Court Of Minnesota Finds Defendant's Statement During Omnibus Hearing Covered By Rule 410

Similar to its federal counterpart, Minnesota Rule of Evidence 410 provides that

Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.

In its recent opinion in State v. Brown, 2011 WL 13753 (Minn. 2011), the Supreme Court of Minnesota had to resolve a question of first impression: whether Rule 410 applies to statements made by a defendant in connection with plea discussions, or in connection with offers of settlement made by the State, when the statements by the defendant are made in open court and in response to questions posed by the district court. And, according to the court, the answer is "yes."

In Brown, Adolphus Brown was convicted of attempted second-degree murder and possession of a pistol without a permit. Before trial, the prosecution offered Brown a plea bargain under which they would ask the judge to impose a sentence of 130(.5) months in exchange for Brown's guilty plea. Later, during a pre-trial omnibus hearing, the judge interrogated Brown regarding the plea bargain, and Brown claimed that he had a permit for the subject pistol. Later during the hearing, the prosecution withdrew the plea bargain.

Thereafter, at trial, Brown admitted on direct examination that he did not have a permit for the pistol he used to shoot the victim. The prosecution pursued the issue on cross-examination, and Brown repeated his admission that he did not have a permit for the pistol. When the prosecution continued to press Brown on the permit issue by asking, "And you recall being in court one other time," Brown's counsel interrupted with an objection but did not state the ground for the objection.

It is unclear from the record precisely how the court dealt with the objection, but it is clear that the prosecution later resumed cross-examination on the permit issue. The prosecution asked Brown about his statement during the omnibus hearing that he had a permit to carry the pistol, and Brown admitted making the statement and testified that he thought he did have a permit. 

After he was convicted, Brown appealed, claiming that his statements to the judge at the omnibus hearing should have been inadmissible under Minnesota Rule of Evidence 410. The Supreme Court of Minnesota agreed, finding that an

“offer to plead guilty” includes a promise by a defendant to plead guilty in the future, when conditioned on an act or return promise given by the State in exchange for the defendant's promise to plead guilty. But a promise by a defendant to plead guilty also could be the return promise on which the State conditions a promise to do or refrain from doing some specified act in the future. It is our view that an "offer to plead guilty" by a defendant could be, and often is, specifically the return promise sought by the State promising to do or refrain from doing some specified act in the future during plea negotiations. Therefore, we decline to so closely parse the definition of "offer to plead guilty" that we exclude from Rule 410 a return promise by a defendant to plead guilty, when this return promise is the very thing sought by the State in exchange for the State's promise to act or refrain from acting. In this case, the State's promised sentencing recommendation, described in open court, was a promise either conditioned on, or made in exchange for, an offer to plead guilty by Brown.

Having reached this conclusion, the Minnesota Supremes then found that Brown's statement during the omnibus hearing was made in connection with this "offer to plead guilty" and thus protected by Minnesota Rule of Evidence 410.

-CM

Nothing Compares: 9th Circuit Finds Best Evidence Rule Doesn't Cover Absence Of Entries In Computer Databases

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

So, let's say that the prosecutor wants to call a witness to testify about the absence of an entry in a computer database. Under the Best Evidence Rule, would the prosecutor be required to introduce a printout of the search results from the database? According to the recent opinion of the Ninth Circuit in United States v. Diaz-Lopez, 625 F.3d 1198 (9th Cir. 2010), the answer is "no."

In Diaz-Lopez, Luis Diaz-Lopez was convicted of being a removed alien found in the United States in violation of 8 U.S.C. § 1326(a). Diaz-Lopez's defense was that he filed a Form I-212, which is the required application for permission to reapply for admission to the United States after having been previously removed. In response, the government introduced testimony from a Border Patrol agent stating that he had performed a search of the Computer Linked Application Information Management System ("CLAIMS") database using Diaz-Lopez's name, alien number, and date of birth, and had found no record of Diaz-Lopez having filed a Form I-212.

After Diaz-Lopez was convicted, he appealed claiming that under the Best Evidence Rule, the prosecutor needed to introduce a printout of the search results from the CLAIMS database. The Ninth Circuit disagreed, finding that the "question [wa]s whether the evidence was introduced '[t]o prove the content of a writing, recording, or photograph.'" And, according to the court, 

it was not. The agent's testimony that he searched the database and found no record of Diaz having filed an I-212 is similar to testimony "that an event did not occur because relevant records contain no mention of it. This negative type of testimony is usually held not to constitute proof of contents and thus not to require production of records."...Indeed, the advisory committee's note to Rule 1002 states that the best evidence rule does not apply to "testimony that books or records have been examined and found not to contain any reference to a designated matter." 

Moreover, the Ninth Circuit declined Diaz-Lopez's invitation to apply the Best Evidence Rule differently to computer databases than it applies to physical files, concluding thayt

First, we do not see any meaningful difference between a search of a physical file and a search of a database. Databases contain “physical” records, too, even if those records are not printed on paper. Second, the best evidence rule, like us, now survives in the twenty-first century. It is common sense, and not mere symmetry, to say that because the rule applies to computer databases, the rule's limitations must also apply to such databases. It is reasonable to apply the best evidence rule to new circumstances as technology evolves, but when the rule is extended, courts will necessarily be required to decide if the limits on the rule extend as well. When, by virtue of new technology, the best evidence rule can be applied to testimony about databases, the traditional limits on the rule should be properly extended as well.

-CM

About Face: New York Court Applies Bruton Doctrine To Non-Facially Incriminatory Confession

Under the Bruton doctrine, at a joint jury trial, the admission of a codefendant's confession that facially incriminates another defendant violates the Confrontation Clause unless the co-defendant testifies at trial. The "facially incriminatory" portion of this doctrine comes from the Supreme Court's opinion in Richardson v. Marsh, 481 U.S. 200 (1987), in which it distinguished facially incriminatory confessions -- which violate the Confrontation Clause -- from confessions that only incriminate by inference -- which do not.  Of course, in this regard, the Supreme Court merely set the Constitutional minimum, and there is nothing wrong with lower courts finding Confrontation Clause violations based upon co-defendant confessions that only incriminate by inference as was the case with the recent opinion of the Supreme Court, Appellate Division, Second Department, New York in People v. Russo, 2011 WL 337886 (N.Y.A.D. 2 Dept. 2011).

In Russo, 

Mark Fisher, a college student, was shot and killed on Argyle Road in Brooklyn. He had spent the previous night at the home of John Giuca in the company of Giuca, the defendant, and several other people. After a lengthy investigation, Giuca and the defendant were charged with various crimes, including murder in the second degree and robbery in the first degree, in connection with the incident. They were tried together before separate juries in 2005. Giuca was convicted of murder in the second degree, robbery in the first degree, and criminal possession of a weapon in the second degree. 

The defendant thereafter appealed, claiming, inter alia,

that his right to confront witnesses against him was violated when a witness was permitted to testify that Giuca, who did not testify, told him, with respect to Fisher's death, that "we may have had something to do with that."

According to the court,

The defendant and Giuca were tried together, and the evidence established that the defendant, Giuca, and only one other person remained with Fisher at Giuca's home prior to the shooting. Consequently, the jury could easily have inferred that Giuca's statement implicated the defendant, despite the lack of a specific reference to him....Accordingly, admission of the statement violated the rule enunciated in Bruton. 

Nonetheless, the court affirmed, finding that the error was harmless given overwhelming other evidence of the defendant's guilt.

-CM

That's One Interpretation: NJ Court Finds Confrontation Clause Doesn't Cover "Interpreters" Of Statements To Police

The Sixth Amendment's Confrontation Clause provides that

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

Pursuant to the Supreme Court's opinion in Crawford v. Washington, 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. But let's assume that the declarant makes a statement to the police and does not speak English. And let's assume that the police get an interpreter to translate the declant's statements to them. If the police officer testifies concerning these translated statements, does the interpreter have to testify at trial? According to the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Venable, 2011 WL 10053 (N.J.Super.A.D. 2011), the answer is "no."

In Venable, Reginald Venable was convicted of first degree armed robbery, second degree possession of a handgun for an unlawful purpose, and third degree unlawful possession of handgun without a permit. At trial, a police officer testified regarding statements that the alleged victim made to him through an interpreter.  The alleged victim also testified at trial, identified defendant as the person who robbed him, and was thoroughly cross-examined by defense counsel. The interpreter, however, did not testify.

After he was convicted, Venable appealed, claiming that the interpreter's failure to testify violated his rights under the Confrontation Clause. The court disagreed, finding that the interpreter's

involvement was limited to assisting the victim, who did not speak English, in reporting the event to a police officer who happened to be driving nearby. The concerns articulated by the Court in Crawford are not applicable to this individual.

Our conclusion is consistent with decisions reached by a number of federal courts that have examined this question. See, e.g., United States v. Vidacak, 553 F.3d 344, 352 (4th Cir.2009) (concluding that the translator at defendant's immigration interview “was merely a ‘language conduit’ and not a declarant”);United States v. Cordero, 18 F.3d 1248, 1252 (5th Cir.1994) (upholding the admission of testimony by DEA agent as to defendant's statements made through an interpreter); United States v. Lopez, 937 F.2d 716, 724 (2d Cir.1991) (upholding the admission of a translated statement where defendants' offered “no reason to doubt the accuracy of [the] translation”). See also Biunno, Current N.J. Rules of Evidence,comment on N.J.R.E. 604 (2008) (“The interpreter's role is merely that of a conduit from the primary witness to the trier of fact.”).

-CM