EvidenceProf Blog

Silence, Please!: Court Of Appeals Of Wisconsin Finds Court Can Preclude Attorney From Sharing Prior Testimony With Future Witnesses

Wisconsin Stat. Section 905.15(3) provides that

The judge or circuit court commissioner may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended. 

But does this Section give courts the power to prevent an attorney from discussing with a nonparty witness the testimony of other witnesses? According to the recent opinion of the Court of Appeals of Wisconsin in State v. Copeland, 2011 WL 659381 (Wis.App. 2011), the answer is "yes."

In Copeland, Derek Copeland was convicted by a jury of one count of first-degree sexual assault of a child. At trial, Copeland was represented by Peter Thompson, and, after he was convicted, Copeland filed a postconviction motion alleging ineffective representation by Thompson and prosecutorial misconduct in that the State failed to provide exculpatory evidence. The circuit court thereafter held a 

hearing at which time Thompson, along with all other witnesses subpoenaed, was sequestered.

Thompson had yet to testify when the court adjourned the hearing until January 6, 2009. Copeland's postconviction attorney moved to clarify the scope of the sequestration order to specify that the prosecutor was not to discuss with Thompson the testimony given at the hearing that day. The prosecutor opposed the motion, questioning whether a court could prohibit an attorney from talking with a potential witness in preparation for that witness's testimony....

In a written decision, the circuit court denied Copeland's motion to prohibit the prosecutor from discussing hearing testimony with Thompson. The court concluded that it lacked the authority to issue an order limiting communications between a sequestered witness and a prosecutor.

Copeland thereafter appealed, claiming that Wisconsin Stat. Section 905.15(3) gave the court power to issue such an order. The Court of Appeals of Wisconsin agreed, finding that although the language of the Section

does not explicitly reference communications between witnesses and attorneys, the only reasonable reading of the statute is that the court may restrict those communications when necessary to prevent indirect communications, sharing one witness's testimony with another....There is no practical difference between an attorney sharing the testimony of a witness with another witness who has yet to testify and the same two witnesses communicating directly with each other. The result is the same: the second witness receives information about the first witness's testimony. The second witness might then tailor his or her testimony to that of the first witness, potentially frustrating the fact finder's ability to discern the truth. Without the authority to restrict attorney-witness communication in these circumstances, courts would be powerless to stop noncomplying attorneys from circumventing sequestration orders.

-CM

Without Limits: Court Of Appeals Of Indiana Finds No Problem With Limiting Instruction Given Before Introduction Of Evidence

Like its federal counterpart, Indiana Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.

But can a party only ask for a limiting instruction under Rule 105 only after the opposing party has introduced evidence admissible for one purpose but inadmissible for another, or can it ask for, and receive, such an instruction before such evidence is introduced? According to the recent opinion of the Court of Appeals of Indiana in State v. Velasquez, 2011 WL 601216 (Ind.App. 2011), the answer is that there is no need to wait.

In Velasquez,  Andy J. Velasquez, II was charged with child molesting as a class A felony and child molesting as a class C felony based upon acts allegedly committed against his stepdaughter G.S. Before trial, the State filed notices of intent to introduce evidence pursuant to Indiana Rule of Evidence 404(b) that Velasquez disciplined G.S. by striking her with a stick, made threats to G.S.'s mother, and made threats to G.S. The trial court held a hearing on this notice and deemed this character evidence admissible at trial.

Thereafter, at trial, before the prosecution introduced this character evidence, defense counsel asked for and the following limiting instruction: 

Evidence may be presented to you of incidents unrelated to the offenses charged. These incidents are only to be considered as they describe the relationship between G.[S]., and [Velasquez]. You may not consider it for any other reason. Specifically, you may not consider it as being evidence of [Velasquez]'s character, nor may it be considered as evidence that [Velasquez] acted in conformity with the acts charged.

The State subsequently presented the character evidence, and the jury later found Velasquez not guilty, prompting the State's appeal. And, according to the State, Rule 105 "allows for a limiting instruction or admonishment only at the time the evidence is offered and admitted." 

The Court of Appeals of Indiana disagreed, finding that 

We do not read Evidence Rule 105  as allowing an admonishment or limiting instruction only at the time evidence is offered. Instead, the purpose of the rule is "to enable a party to request a limiting admonishment at the time the evidence is offered, rather than waiting until the jury instructions."...Thus, a party may seek a limiting instruction or admonishment either prior to trial or at the time evidence is admitted....

In this case, Velasquez's counsel sought a limiting instruction prior to the presentation of evidence. While the more common practice may have been to admonish the jury at the time the character evidence was offered, and a limiting instruction is "usually" given after the presentation of evidence...we cannot say that the trial court in this case abused its discretion in giving a preliminary limiting instruction.

According to the court, the issuance of the instruction was not premature because the State had already secured a ruling that the character evidence at issue was admissible. Finally, the court rejected the State's argument the the instruction was confusing; instead, it applied the general presumption that jurors are presumed to follow courts' instructions.

-CM

 

Hitting On The Moonshine: Court of Appeals Of Kentucky Finds Evidence Defendant Drank Moonshine Inadmissible Under Rule 403

Like its federal counterpart, Kentucky Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

So, assume that a plaintiff sues a defendant for assault and seeks to present evidence that the defendant admitted to drinking "moonshine" before the alleged assault. Should the plaintiff be able to present evidence relating to the defendant's ingestion of "moonshine," or should the trial court exclude such evidence under Rule 403? According to the recent opinion of the Court of Appeals of Kentucky in Wilkerson v. Williams, 2011 WL 559218 (Ky.App. 2011), there was no problem with the trial court excluding such evidence. I disagree.

In Williams,

Nathan [Wilkerson] claim[ed] that he was punched in the face by Aaron Z. Williams at a party hosted by Aaron's father, Jeffrey L. Williams. Alcoholic drinks were served at the party. According to the Wilkersons, Aaron, who was thirty-one years of age at the time, was visibly intoxicated at the party and admitted to them that he was consuming moonshine. The Wilkersons filed suit on June 21, 2007, alleging that Aaron had committed assault and negligent assault against Nathan....[Nathan's wife] Keisha asserted a claim for loss of consortium.

At trial, the court granted the Williams's motion in limine to exclude the Wilkersons' testimony that Aaron had admitted to drinking moonshine, finding that the prejudicial effect of the word "moonshine" would outweigh any probative value. The court did, though, allow for the admission of evidence that alcohol was served and consumed at the party. The jury eventually found that Nathan had not been struck by Aaron, and the trial court entered a judgment dismissing the Wilkersons' claims with prejudice.

The Wilkersons thereafter appealed, claiming, inter alia, that the trial court erred by excluding their testimony that Aaron had admitted to drinking moonshine. The Court of Appeals of Kentucky disagreed, finding that

KRE 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury[.]" "It is within the discretion of the trial court to determine whether the probative value of proffered evidence is substantially outweighed by undue prejudice."...The precise type of alcohol Aaron was consuming was not relevant to the jury's task of determining whether he struck Nathan or not. The evidence would have served only to prejudice the jury against...Jeffrey. The trial court's ruling that the moonshine testimony was more prejudicial than probative was fully in accord with KRE 403 and will not be disturbed on appeal.

I wish that the court had provided more analysis of the issue. Presumably, Jeffrey and other individuals who drank moonshine testified at trial. And presumably, they were impeached based upon their consumption of alcohol. And undoubtedly, the amount of alcohol that they drunk was relevant to their credibility. It is easy to see why the jury would discount the testimony of a witness who drank four beers in an hour more than the testimony of a witness who drank two beers in an hour.

But what about the witness who drinks moonshine? Well, I guess that could go either way. I'm guessing that some moonshine contains less alcohol than your average alcoholic beverage, but I'm betting that most moonshine contains more alcohol. Therefore, learning that Jeffery drank moonshine seems very relevant to his credibility.

Conversely, what is the unfair prejudice? Sure, making moonshine is illegal, but Jeffrey wasn't charged with the crime and the action against him didn't deal with the making of the moonshine. I thus struggle to see how the probative value of the proposed evidence was substantially outweighed by the danger of unfair prejudice.

-CM

Take Good Care Of My Baby: Court Of Appeals Of Kentucky Deems Will Related Statements Inadmissible Under Rule 803(3)

Like its federal counterpart, Kentucky Rule of Evidence 803(3) 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.

So, let's say that after executing a will, the testator tells (1) a friend how he had taken care of his wife and how she had always taken care of him; and (2) his reverend that his wife would be taken care of. Are these statements admissible under Rule 803(3)? According to the recent opinion of the Court of Appeals of Kentucky in Kemper v. Kemper, 2011 WL 557708 (Ky.App. 2011), the answer is "no." I disagree.

In Kemper, in 1986, W.S. executed a joint will with his wife, Norma Jean Kemper, who later passed away. Thereafter,

On September 7, 1993, W.S., then seventy-three years of age, married thirty-five-year-old Bonnie Lee Maiden. As a result of the marriage between W.S. and Bonnie, familial relations between W.S., his two sons, and their families became seriously strained to the point of an alleged physical altercation between Bonnie and W.S.'s daughter-in-law. It also was alleged that Bonnie discouraged and restricted Paul and David's access to W.S. Sometime in 2000, Bonnie relocated W.S. from Carroll County to Cumberland County, Kentucky. After the move, W.S. was diagnosed with prostate cancer. In January 2006, W.S. was hospitalized. His cancer had metastasized causing compression of his spinal cord and resulting in paralysis below the waist. On January 21, 2006, while still hospitalized, W.S. executed another will leaving the bulk of his estate to Bonnie; Paul and David were each devised a mere one-sixth interest in a tract of real property. W.S. died on June 27, 2006.

Subsequently,

On December 8, 2006, Paul and David filed a complaint in Cumberland Circuit Court seeking to set aside the January 21, 2006, will due to lack of W.S.'s mental capacity to execute same and due to Bonnie's undue influence over W.S. In August of 2009, the case was tried in the Cumberland Circuit Court. The jury found that W.S. possessed the requisite mental capacity to execute the January 21, 2006, will but that Bonnie exerted undue influence over W.S. in the drafting of the will. By judgment entered August 27, 2009, the circuit court set aside the January 21, 2006, will.

Bonnie thereafter appealed, claiming, inter alia, that the circuit court erred in precluding her from admitting the statements mentioned in the introduction to this post. According to Bonnie, these statements should have been admissible under Kentucky Rule of Evidence 803(3). The Court of Appeals of Kentucky disagreed, concluding that

A statement by W.S. that he had taken care of Bonnie is vague and ambiguous; moreover, such statement does not directly prove the contents of W.S.'s will, his mental condition at the time of executing the will, or his susceptibility to external influences at the time of executing the will. Taken together, we cannot conclude that the trial court abused its discretion by excluding the above testimonies.

I disagree. The language of Rule 803(3) makes clear that it allows for the admission of statements of memory or belief to prove the declarant's state of mind as it related to the execution of his will. And W.S.'s statements clearly were admitted for this purpose, i.e., to prove that his state of mind when he executed his will was that he wanted to take care of Bonnie. Now, the Court of Appeals of Kentucky was certainly correct that these statements did not directly prove the contents of the will or disprove his susceptibility to external influence. But these factors merely should have gone to the weight of the evidence, not the admissibility of the statements.

-CM

The Hole Dang Thing: Supreme Court Of Rhode Island Finds Calling Of Defendant By Nickname Not Hearsay

Like its federal counterpart, Rhode Island Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

So, let's say that an eyewitness to a crime testifies that a man with the nickname "Dang" committed a crime. Can the prosecution call a witness to testify that people use that nickname to refer to the defendant charged with the crime. Is the use of that nickname hearsay? According to the recent opinion of the Supreme Court of Rhode Island in State v. Johnson, 2011 WL 576082 (R.I. 2011), the answer is "no."

In Johnson, the facts were as stated above, with Kendall Johnson being charged with (1) assault with a dangerous weapon (namely, a firearm); (2) discharging a firearm while committing a crime of violence, causing injury; (3) assault with intent to rob; and (4) carrying a pistol without a license. Yolanda Reed, an eyewitness to the crime unequivocally identified the perpetrator as "Kendall Johnson" or "Dang," despite the fact that he was wearing a ski mask that covered much of his face. According to Reed, "despite the mask, she recognized Mr. Johnson by his walk, his voice, his eyes, and his clothes."

Thereafter, a police officer testified that he knew Johnson's nickname to be "Dang" in part because Johnson responded when other people called him "Dang." The Supreme Court of Rhode Island disagreed, finding that

a multitude of courts have held that evidence about a person's nickname, in this context, does not constitute hearsay because the use of such a name does not rise to the level of an assertion. See United States v. Allen, 960 F.2d 1055, 1059 (9th Cir. 1992) ("One virtually always learns a name-even one's own-by being told what it is. * * * Nevertheless, evidence as to names is commonly regarded as either not hearsay because it is not introduced to prove the truth of the matter asserted, * * * or so imbued with reliability because of the name's common usage as to make any objection frivolous."); United States v. Weeks, 919 F.2d 248, 251 (5th Cir. 1990) (holding that a prison warden's testimony that guards and inmates used a nickname to refer to the defendant was merely a report of “non-assertive oral conduct and was therefore not hearsay”); Commonwealth v. Gabbidon, 494 N.E.2d 1317, 1320 (Mass. 1986) (determining that witness's testimony about observing others call the defendant several nicknames did not constitute hearsay because it "was not admitted for the truth of any fact asserted outside of court"). We are persuaded by the logic of these holdings and concur with it.

Of course, as the court also noted, Reed also identified Johnson by his actual name and characteristics, meaning that even if the statements about his nickname were hearsay, their admission was harmless error.

-CM

Thanks For The Opportunity: Court Of Appeals Of Ohio Finds Deficient Cross-Examination Doesn't Preclude Application Of Rule 804(b)(1)

Similar to its federal counterpart, Ohio Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

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

So, let's say that a witness for the prosecution testifies at a preliminary hearing, and the prosecution seeks to present that testimony at trial without having that witness testify again. Will the fact that defense counsel engaged in a deficient cross-examination of that witness present the testimony from being introduced under this "former testimony" exception. According to the recent opinion of the Court of Appeals of Ohio, Tenth District, in State v. Sidibeh, 2011 WL 553140 (Ohio App. 10 Dist. 2011), the answer is "no" because Rule 804(b)(1) only requires the opportunity and similar motive to develop the testimony.

In Sidibeh,  Hassan Sidibeh was convicted of offenses pertaining to an October 12, 2008 home invasion. The invasion happened at a home in which Raheem Carter lived, and, at a 

bindover hearing, Raheem testified that [Sidibeh], [Kacey] Brown, and [Robert] Vann committed the home invasion around 10:45 p.m. He recognized [Sidibeh] when the incident occurred, and, during the bindover hearing, he identified [Sidibeh] as a participant of the home invasion. [Sodobeh]'s defense counsel, who was different from the one at trial, cross-examined Raheem. During cross-examination, Raheem testified that he had seen a photograph of [Sidibeh] on a social networking website before the home invasion. He said that he had not seen [Sidibeh] "in person" before the incident, however.

Later, Raheem was unavailable to testify at trial because he had died in an incident unrelated to the home invasion, so the prosecution introduced his testimony from the bindover hearing pursuant to Ohio Rule of Evidence 804(b)(1).

After he was convicted, Sidibeh appealed, claiming, inter alia, that Raheem's former testimony was inadmissible under Rule 804(b)(1) because his attorney at the bindover hearing was deficient in that he failed to conduct a sufficiently rigorous cross-examination of Raheem. The Court of Appeals of Ohio disagreed, finding that Rule 804(b)(1)

is not concerned with "the actual cross-examination itself."...Instead, the rule requires that a party have an opportunity for cross-examination....Likewise, a defendant's constitutional right to confront witnesses "guarantees only an opportunity for cross-examination."...Appellant was given an opportunity to cross-examine Raheem, and we need not consider appellant's challenges to the adequacy of that cross-examination.

-CM

¿Hablas Español?: Supreme Court Of Indiana Finds No Problem With Admission Of Translation Under Best Evidence Rule

Like its federal counterpart, Indiana Rule of Evidence 1002, its Best Evidence Rule, provides in relevant part 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 statute. 

So, let's say that a confidential informant surreptitiously records Spanish-language drug deals between the defendant and himself. Can the prosecution admit English language translations of these recordings without introducing the original recordings at trial? According to the recent opinion of the Supreme Court of Indiana in Romo v. State, 2011 WL 446285 (Ind. 2011), the answer is "yes"...sort of.

In Romo, the facts were as stated above. Before trial, the prosecution provided the defendant with the original recordings and the English language translations to the defendant. At trial, however, the prosecution only admitted the English language translations.

After he was convicted, the defendant appealed, claiming, inter alia, that the prosecution was required to introduce the original recordings pursuant to Indiana Rule of Evidence 1002. In addressing this argument, the Supreme Court of Indiana noted that in three prior opinions it had viewed "the function of transcripts of recordings purely as an aid to assist a jury's understanding of the actual recording, and Evidence Rule 1002 requires the original of a recording, if available, to be submitted in evidence as proof of the contents of the recording." That said, the court then noted that in two of these prior opinions left

open the possibility of a more robust role for transcripts where the recording is inaudible or indistinct. For juries without appropriate foreign language comprehension, audio recordings of foreign language speakers may fall into this category and require special consideration.

The Indiana Supremes then pointed out that the Fifth, Seventh, and Eighth Circuit had each reached this conclusion and agreed with them, finding that

Here, under the reasonable assumption that the jury did not comprehend Spanish, the original recording, being solely in Spanish, would not likely convey to the jury the content of the recorded conversations. Applying the rule to limit the evidence of content to the original Spanish recordings would not serve the purpose of the rule because it could not prove any content to the jury. We thus hold that the admission into evidence of foreign language translation transcripts is not governed by Evidence Rule 1002....We hold that English language translation transcripts of statements recorded in a foreign language, if otherwise admissible, may properly be considered as substantive evidence.

That said, the court did

determine that it is generally the better practice to play such foreign language recordings to the jury upon a reasonable request by a party. Expediency undoubtedly results when a jury is spared from listening to foreign-language recordings, and practical usefulness is served by providing them instead with reliable English translations or translation transcripts. But we value even higher the capacity of jurors to apply their sensing and intuition faculties in reaching their determinations.

-CM