February 19, 2011
Dead Cert: Supreme Court Of Mississippi Finds Death Certificate Listing Time Of Death Admissible Under Rule 803(9)
Records or data compilations of vital statistics, in any form, if the report thereof was made to a public officer pursuant to requirements of law.
The recent opinion of the Supreme Court of Mississippi in Birkhead v. State, 2011 WL 539056 (Miss. 2011), gives me my first chance to address either version of Rule 803(9) and how the Rule differs from the common law in at least some states.
In Birkhead, Richard Earl Birkhead was convicted of the capital murder of Walter Lanier while engaged in a robbery. At trial, when the State tried to introduce a certified copy of Lanier's death certificate, defense counsel objected that
On the report they have the hour of injury as being 3:38 a.m. I don't know that they have established that. They have the hour of death as being 3:50 a.m. I don't think they have established that. We will object to it being introduced.
The court overruled this objection, and this ruling later formed one of the grounds for Birkhead's appeal. In addressing this appeal, the Supreme Court of Mississippi first noted that the certified copy of the death certificate was self-authenticating under Mississippi Rule of Evidence 902(4). The court then acknowledged that the death certificate contained hearsay but found that it was admissible under Mississippi Rule of Evidence 803(9).
Birkhead, however, cited the pre-Rules case of Flowers v. State, 243 So.2d 564 (Miss. 1971), for the proposition that "death certificates could be introduced into evidence but used only to show 'the physical cause of death.'" But according to the court, Flowers was irrelevant because "Rule 803(9) includes no Flowers-like qualification."
February 18, 2011
Follow The Leader: Ninth Circuit Finds Statements Of Customer Confusion Admissible Under State Of Mind Exception To Rule Against Hearsay
Customers call a company complaining that they were confused because they visited what they thought was the company's website but could not find any information about the company. It turns out that an "Internet entrepreneur" acquired a domain name with the company's name and created a website that consisted only of a few lines of code redirecting visitors to a different website with search result links, including links to the company's competitors. The company sues the individual, claiming that he violated the Lanham Act, the Anticybersquatting Consumer Protection Act, a consumer protection act, and common law. Should the company be able to present evidence about the customer complaints that they received? According to the recent opinion of the Ninth Circuit in Lahoti v. Vericheck, Inc., 2011 WL 540541 (9th Cir. 2011), the answer is "yes."
In Lahoti, the facts were as stated above with Vericheck being the company and David Lahoti being the defendant who registered www.vericheck.com. At trial, to prove actual confusion,
two witnesses testified on behalf of Vericheck that there ha[d] been significant confusion as a result of the www.vericheck.com website. The evidence show[ed] that Vericheck and its independent sales offices and resellers receive[d] a substantial number of telephone calls from confused customers who could not find information about Vericheck on www.vericheck.com.
After the district court found that Lahotu committed the alleged violations, Lahoti appealed, claiming, inter alia, that this testimony was improperly received. The Ninth Circuit disagreed, finding that while this testimony referenced hearsay statements regarding customer confusion, those statements were admissible under Federal Rule of Evidence 803(3), which provides an exception to the rule against hearsay for
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
As support for this conclusion, the Ninth Circuit cited to Conversive, Inc. v. Conversagent, Inc., 1079, 1091 (C.D. Cal. 2006), for the proposition that the "majority of circuit courts that have considered this issue have...found that such evidence is admissible."
February 17, 2011
10 Years Have Got Behind You: Court of Appeals Of North Carolina Finds No Error With Admission Of Conviction Under Rule 609(b)
Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
As Rule 609(b) and the recent opinion of the Court of Appeals of North Carolina in State v. Bortone, 2011 WL 532136 (N.C.App. 2011), make clear this ten-year rule is based upon the date of conviction or the date of release, whichever is the later date.
In Bortone, John Bortone was convicted of two counts of injury to real property. After he was convicted, Bortone appealed, claiming, inter alia, that the trial court erred in permitting the State to impeach him with a conviction that was more than 10 years old in violation of North Carolina Rule of Evidence 609(b). Bortone's trial was held in March 1999, and during cross-examination, the State asked defendant: "Do you recall pleading guilty on April 19th of 1999, to felony forgery of deeds or wills?" Bortone confirmed that he had done so.
It turned out, however, that Bortone was actually convicted on October 19, 1998. He therefore appealed, claiming that the conviction did not satisfy the balancing test set forth in North Carolina Rule of Evidence 609(b). But according to the court, one of the problems for Bortone was that he provided no evidence of when he was released from incarceration, which presumably was the later of the two dates. Therefore, the court did not award Bortone relief.
February 16, 2011
(Un)Masked and Anonymous: Supreme Court Of Arizona Finds Anonymous Call Admissible Under Rule 804(b)(3)
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
As I have previously noted on this blog, courts typically have found that anonymous statements cannot qualify as statements against interest under Rule 804(b)(3). The recent opinion of the Supreme Court of Arizona is Arizona v. Machado, 2011 WL 519752 (Ariz. 2011), is an exception to this general practice.
In Machado, Louis Machado was convicted of the murder of Rebecca R. Machado was actually was not first suspect considered by the police; rather,
Almost a month after the shooting, Rebecca's family received a telephone call. The caller did not identify himself, but said he knew the family through Rebecca. He related details of the shooting that were not publicly known and said he had accidentally killed Rebecca because he was mad at her and she would not do what he wanted. The family members who heard the call said that the caller sounded like a "cold, cocky, and well-spoken" young white male. Relying on this call, police obtained a warrant for a sample of [the voice of Jonathan H.].
Jonathan H. was Rebecca's classmate "and the boyfriend of her best friend, Laura. He had threatened to kill Rebecca and Laura two weeks earlier for attempting to resolve a dispute between him and Laura's ex-boyfriend
After Machado was convicted, he appealed, claiming, inter alia, that the trial court erred by precluding him from admitting into evidence the anonymous phone call allegedly made by Jonathan H. His appeal eventually reached the Supreme Court of Arizona, which noted that
An anonymous statement would not typically qualify as a statement against penal interest under Rule 804(b)(3). By concealing his identity, the declarant seeks to protect himself from the consequences of admitting to a crime. Such a statement ordinarily would not tend to expose the declarant to criminal liability, as Rule 804(b)(3) requires.
That said, the Arizona Supremes then pointed out that
both in its supplemental brief and at oral argument, the State conceded that the anonymous telephone call in this case was a statement against penal interest by the declarant. Presumably, the State did so because it obtained a warrant for Jonathan's voice sample on the basis of the call, making it somewhat difficult to argue that the call did not tend to expose the declarant to criminal liability.
The court then indicated that it Jonathan H. was unavailable at Machado's trial, meaning that call was admissible as long as there were "corroborating circumstances clearly indicate the trustworthiness of the statement." And it found that there were, concluding that
The caller stated that before the shooting, he waited by a white minivan parked near a neighbor's house. At the time of the crime, a white minivan was in fact parked nearby. The caller also stated that he saw Rebecca come home in a white Ford Escort. This detail was also correct, and the Escort had only recently been purchased. Neither of the facts described by the caller had been reported in the media.
February 15, 2011
D.C. Cab: DDC Denies Motion For Pretrial Hearing On Admissibility Of Co-Conspirator Admissions In Cab Corruption Case
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
So, let's say that the prosecution wants to admit alleged co-conspirator admissions against a defendant. Should the court allow the prosecution to introduce these alleged admissions only after it establishes that the declarant was a co-conspirator of the defendant and that the statements were made during the course and in furtherance of the conspiracy? Or should the prosecution be able to introduce these alleged admissions contingent upon its subsequent introduction of evidence sufficient to satisfy the Rule's requirements, with the court declaring a mistrial or instructing the jury to disregard the statements if such evidence is not presented? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Loza, 2011 WL 340290 (D.D.C. 2011), the answer is "no." I disagree, at least in cases in which the court only instructs the jury after it determines the the alleged admissions are inadmissible.
In Loza, Ted Loza, a former chief of staff of member of Council of the District of Columbia, was charged in connection with his alleged involvement in a conspiracy whose goals included corruptly obtaining taxicab company licenses and influencing legislation. Loza thereafter moved for a pretrial hearing on the admissibility of alleged co-conspirator admissions, alleging that at least some of the subject statements were not made as part of a conspiracy in which he participated.
The United States District Court for the District of Columbia disagreed. It did acknowledge that "[t]he court of appeals has suggested in the past that it is "the better practice" for the trial court to determine the admissibility of statements offered pursuant to Rule 801(d)(2)(E) before the statements are presented to the jury. That said, the court then went on to note that
Nevertheless, the court of appeals acknowledged in the same opinion that "it is just impractical in many cases for a court to comply strictly with the preferred order of a proof," and as a consequence, "the court is vested with considerable discretion to admit particular items of evidence 'subject to connection.'"...In this district it is common practice for a court to avoid a "disfavored 'mini-trial' of the evidence" by deferring its determination regarding the admissibility of alleged co-conspirator statements until after the close of the government's case.
And, according to the court, "If, after the close of the government's case, 'or at any other critical point,'the court determines that the government has failed to prove the necessary factual predicate for admissibility, the court may either declare a mistrial or strike and instruct the jury to disregard any inadmissible statements."
The court then decided to follow the "common practice" and denied Loza's motion for a pretrial hearing. And I have no problem with that ruling, assuming that the court was prepared to declare a mistrial in the event that the statements were later determined to be inadmissible. But I disagree with the position that a court cure any problems created by the erroneous admission of co-conspirator admissions, at least in some cases, by instructing the jury to ignore them.
As the Supreme Court concluded in Bruton v. United States, 391 U.S. 123 (1968), courts generally presume that jurors follow instructions, but that trust can only go so far. Therefore, under the Bruton doctrine, jurors in joint trials are presumed not to have followed an instruction that the confession of a non-testifying co-defendant that implicates other defendants is only evidence of the co-defendant's guilt. I think that the same should apply to co-conspirator admissions that are erroneously admitted. These admissions establish that there was a conspiracy and (often) that the defendant was involved in it. Simply telling jurors after they have heard such powerfully incriminatory evidence that they should ignore what they have heard seems to be a flight of fancy that courts simply cannot take.
February 14, 2011
Blue Valentine: Court Of Appeals Of Mississippi Finds Rule 408 Doesn't Cover Divorce Property Settlement Agreement
Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
But does Rule 408 preclude the admission of a property settlement agreement in a divorce agreement? According to the recent opinion of the Court of Appeals of Mississippi in Wilson v. Wilson, 2011 WL 386814 (Miss.App. 2011), the answer is "no."
In Wilson, Kelly Wilson
filed a complaint for divorce against Tara [Wilson] on the grounds of habitual cruel and inhuman treatment and uncondoned adultery or, in the alternative, irreconcilable differences....The chancellor granted the divorce on the ground of irreconcilable differences....They let the chancery court decide which party should have custody of their child, decide the division of marital property, determine the disposition of their marital home and who should pay the outstanding debts on the home, and determine who should make the guardian ad litem (GAL) payments.
The chancellor thereafter awarded full custody of the child to Kelly Wilson.
The chancellor did not award Tara any alimony, and she was not required to pay child support. The couple had previously entered into a property-settlement agreement, which was found to be a binding contract between the parties as to the property-division portion.
Tara Wilson thereafter appealed, claiming, inter alia, "that the chancellor erred in admitting the property-settlement agreement into evidence as an exhibit over her objection that it violated Mississippi Rule of Evidence 408." The Court of Appeals of Mississippi disagreed, concluding that because "this property-settlement agreement is a binding contract between the parties concerning an agreed equitable division of their marital property, it is not a settlement or an offer to settle. Thus, Rule 408 is not applicable, and this issue is without merit."
February 13, 2011
The Sound Of Silence: Court Of Appeals of Iowa Precludes Jury Impeachment After Jury Finds Guilt Based On Defendant's Choice Not To Testify
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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
So, let's say that a defendant exercises his Fifth Amendment right not to testify at trial, and jurors improperly use his failure to testify as evidence of his guilt. Can this jury misconduct form the proper predicate for jury impeachment under Rule 5.606(b)? According to the recent opinion of the Court of Appeals of Iowa in State v. Blair, 2011 WL 441968 (Iowa.App. 2011), the answer is "no."In Blair, Clark Allen Blair was convicted of indecent exposure. Blair thereafter moved for a new trial, submitting a jury affidavit indicating that jurors took his failure to testify as evidence of his guilt. Specifically, the affidavit stated that
the deciding factor among the panel was that Mr. Blair did not testify, thus he must be guilty. If a person didn't commit the crime, they would want to tell their side of the story. Given this is such a moral crime, a person couldn't not get up and say "no, I didn't do this."
The trial court denied Blair's motion, prompting his appeals to the Court of Appeals of Iowa, where he claimed "that the juror affidavit complied with Iowa Rule of [Evidence] 5.606(b)'s requirement that the evidence be extraneous prejudicial information, because it was a consideration of something lacking rather than a consideration of the evidence presented." The court noted that this was an issue of first impression in Iowa but noted that the Eighth Circuit had interpreted Federal Rule of Evidence 606(b) as precluding such testimony:
In United States v. Rodriguez, 116 F.3d 1225, 1226-27 (8th Cir. 1997), the eighth circuit held that jurors were prohibited by rule 606(b) from testifying that they discussed the defendant's failure to testify as part of their deliberation. The court found that the jury did not learn of the fact that the defendant did not testify from some outside communication, but learned it as part of the trial....While the court acknowledged that the jury should not have discussed the defendant's silence, the information was not extraneous to the trial and thus, the jury members are prohibited from testifying about it....
The Court of Appeals agreed with this reasoning and thus deemed the jury affidavit inadmissible.