EvidenceProf Blog

A Foolish Consistency?: Does Minnesota's Prior Consistent Statement Rule Make Sense?

Federal Rule of Evidence 801(d)(1)(B) indicates that 

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

Meanwhile, Minnesota Rule of Evidence 801(d)(1)(B) indicates that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness...

The recent opinion of the Court of Appeals of Minnesota in State v. Johnson, 2012 WL 254476 (Minn.App. 2012), reveals the problem that I have with Minnesota's version of Rule 801(d)(1)(B).

In Johnson, Jerome Johnson was convicted of second-degree assault and unlawful possession of a firearm. After he was convicted, Johnson appealed, claiming that the district court erred by precluding him from introducing into evidence a videotape of his police interview, which he claimed was a prior consistent statement under Minnesota Rule of Evidence 801(d)(1)(B) that was consistent with his trial testimony.

The Court of Appeals of Minnesota agreed, concluding that

First, the statements are not hearsay and are admissible as prior statements by a witness. Appellant testified at trial and was subject to cross-examination concerning the statements; the statements are "consistent with [appellant's] testimony and helpful to the trier of fact in evaluating [his] credibility as a witness." See Minn. R. Evid. 801(d)(1)(B). The statements echoed appellant's comments during the police interview and his testimony at trial; therefore, we conclude that the statements were admissible to assist the jury in evaluating his credibility. Second, the district court's finding that the statements were "self-serving" cannot serve as a basis to exclude otherwise admissible evidence.Accordingly, we conclude that the district court abused its discretion in excluding the statements.

The court of appeals ultimately found that the district court's error was harmless, but this second point illustrates the problem that I have with Minnesota Rule of Evidence 801(d)(1)(B): It allows self-serving statements to be admitted as long as they are consistent with trial testimony. The only requirement for admission is that the prior statement be "helpful to the trier of fact in evaluating the declarant's credibility as a witness..." But when would a prior consistent statement not be helpful to the jury in evaluating credibility?

Federal Rule of Evidence 801(d)(1)(B) only allows for the admission of a prior consistent statement to rehabilitate the credibility of a witness who has had his credibility attacked. Minnesota's version allows for such bolstering in the absence of an initial attack.

-CM

You And I: Supreme Court Of Maine Reverses Conviction Based On Improperly Admitted Hearsay

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Meanwhile, Maine's counterpart, Maine Rule of Evidence 804(b)(3), provides an exception for

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 him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception. (emphasis added).

And what this last, bolded sentence of Maine Rule 804(b)(3) means is that the statement prompting the defendant's appeal in State v. Guyette, 2012 WL 182159 (Me. 2012), was clearly inadmissible.

In Guyette, Jesse Guyette was convicted of of unlawful possession of scheduled drugs. At Guyette's trial, Scott Drost, who was not a co-defendant of Guyette, invoked his Fifth Amendment privilege self-incrimination. Thereafter, pursuant to Maine Rule 804(b)(3), the prosecution introduced a recording of a phone call in which Dorst incriminated himself as well as Guyette.

After he was convicted, Guyette appealed, claiming that his statement was inadmissible under Maine Rule 804(b)(3) because it was "A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused...." The Supreme Court of Maine agreed, finding that "[w]hen offered against the accused in a criminal case, the last sentence excludes from the statement against penal interest hearsay exception out-of-court statements made by any person that implicate both the declarant and the accused." 

So, how many states have a similar explicit exclusion? According to the Maine Supremes, "six states have implemented similar language in their rules governing the admissibility of statements against penal interest." Those states are Arkansas, Indiana, Nevada, North Dakota Oklahoma, and Vermont.

-CM

Revelations: Should A Jury Verdict Based On A Divine Revelation Be Impeachable?

Similar to its federal counterpart, Utah Rule of Evidence 606(b) provides that

(1)   Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2)   Exceptions. A juror may testify about whether:

(A)   extraneous prejudicial information was improperly brought to the jury’s attention; or

(B)   an outside influence was improperly brought to bear on any juror.

So, let's say that a juror claims to have received a revelation that if defense counsel did not make eye contact with her when he presented his argument, the defendant was guilty. If the defendant seeks to present evidence of this revelation to impeach his guilty verdict, should the court deem the evidence admissible? Let's take a look at the recent opinion of the Supreme Court of Utah in Taylor v. State, 2012 WL 192798 (Utah 2012).

Taylor itself didn't deal with this issue. Instead, it dealt with the question of whether the defendant could present evidence that the jury foreperson suggested to another juror during deliberations that she put herself in the "shoes" of the victims. The answer to this question was a clear "no." In reaching this opinion, though, the Supreme Court of Utah relied upon its prior opinion in State v. DeMille, 756 P.2d 81 (1988). 

In DeMille, the facts were as stated in the introduction. In rejecting the defendant's argument that the juror's revelation was an improper outside influence, the Supreme Court of Utah held that

If we were to accept defendant's argument that supposed responses to prayer are within the meaning of the term "outside influence" in rule 606(b), we would implicitly be holding that it is improper for a juror to rely upon prayer, or supposed responses to prayer, during deliberations. Such a conclusion could well infringe upon the religious liberties of the jurors by imposing a religious test for service on a jury....A juror is fit to serve if he or she can impartially weigh the evidence and apply the law to the facts as he or she finds them....Prayer is almost certainly a part of the personal decision-making process of many people, a process that is employed when serving on a jury. There is no necessary inconsistency between proper performance as a juror and reliance on prayer or supposed responses to prayer. So long as a juror is capable of fairly weighing the evidence and applying the law to the facts, one may not challenge that juror's decision on grounds that he or she may have reached it by aid of prayer or supposed responses to prayer. Therefore, we hold that under rule 606(b), prayer and supposed responses to prayer are not included within the meaning of the words "outside influence." Testimony that a juror has so acted is not admissible to challenge a verdict; the trial judge properly refused to consider the proffered affidavit.

That said, Justice Stewart dissented on Constitutional grounds, finding that

A defendant is constitutionally entitled to a jury that determines guilt or innocence based on the evidence and the law presented to it. Verdicts decided on some other basis make the constitutionally guaranteed right to trial by jury a nullity. Indeed, a verdict that is rendered on the basis of supposed divine intervention is a throw-back to the primitive days of trial by ordeal where, for example, the manner of healing of a severe burn inflicted on a party was deemed to be an indication of God's judgment....

I believe the majority fails to draw a critical distinction between the legitimacy of jurors' seeking divine assistance in accurately and dispassionately weighing the evidence and the illegitimacy of jurors' abdicating their sworn duty to decide the case on the evidence and instead relying on some supposedly divine sign. Although "[a] juror is fit to serve if he or she can impartially weigh the evidence and apply the law to the facts as he or she finds them," as the majority observes, the fact appears to be that the juror in question did not impartially weigh the evidence and apply the law to the facts, but disregarded the evidence and the law and ruled on the basis of an "outside influence." Accordingly, the trial court could have relied on the affidavit under Rule 606(b) for the purpose of deciding that a hearing on the allegations should have been held. It is of particular significance that the juror in question is alleged to have been "one of the leaders" during the jury deliberations.

-CM

Do You Yahoo?: NJ Court Applies Federal Rule Of Evidence 901(b)(4) To Find Proper Authentication Of Yahoo! Chats

Similar to its federal counterpart, New Jersey Rule of Evidence 901 provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.

That said, the New Jersey Rules of Evidence do not have a counterpart to Federal Rule of Evidence 901(b)(4), which provides that evidence can be authenticated through

The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

As the recent opinion of the Superior Court of New Jersey, Appellate Division in State v D.D., 2012 WL 246378 (N.J.Super.A.D. 2012), makes clear however, New Jersey courts do look to Rule 901(b)(4) for guidance.

In D.D., D.D., was convicted of two counts of first-and one count of second-degree sexual assault on three boys all under the age of twelve and three counts of child endangerment. After he was convicted, D.D. appealed, claiming, inter alia, that the trial court erred in allowing for the admission of a computer printout of Yahoo! text messages or "chats" he had with his alleged co-conspirator Robert Pelle because they were improperly authenticated. Specifically, D.D. claimed that the printouts were improperly authenticated because the person who printed them out from Pelle's computer did not testify at trial.

In response, the Superior Court of New Jersey, Appellate Division noted that Federal Rule of Evidence 901(b)(4) permits "authentication based on such distinctive characteristics as proof of a communication's contents or substance." The court then found that

There is sufficient circumstantial evidence to support the authentication of the Yahoo! chats, even though the individual who retrieved them from Pelle's computer did not testify. Specifically, the contents of the chats are consistent with the trial testimony of Pelle and defendant. For example, the chats showed that: "Robert," identified as Pelle, was conversing with someone named "Dave" who lived nearby; "Dave" met Robert at a campground; and Pelle asked if "Dave" and "J" wanted to stop by after a game. Moreover, Pelle identified his screen name on the chats, acknowledged that he participated in the chats, and confirmed that the contents of the chats were the same as his offline conversations with defendant. Pelle also testified that the chats took place over seven days in March 2004; that the federal government retrieved the chats from his hard drive; and the chats were the ones he had not deleted from his computer with the wiping program. And despite his denial of any online communications with Pelle, defendant's testimony was also consistent with the matters addressed in these chats. Thus, there was sufficient circumstantial evidence for a reasonable juror to conclude that these chats were taken from Pelle's computer.

-CM

Objection!: Appellate Court Of Connecticut Finds Issue Waived Because Defendant Cited To Federal Rule Of Evidence

In order to preserve an issue for appellate review, a party must make a timely objection and state the specific ground for the objection. The recent opinion of the Appellate Court of Connecticut in Corbett v. Commissioner of Correction, 2012 WL 224914 (Conn.App. 2012), is instructive in this regard. But did the court go too far?

In Corbett, Terrance Corbett, appealed from the judgment of a habeas court denying his third amended petition for a writ of habeas corpus. Part of Corbett's argument on appeal was that the court erred by precluding him from presenting into evidence a prior consistent statement by Jamelle Byrd, a witness. The Appellate Court of Connecticut, however, rejected this argument, finding that

The petitioner, in his second renewed offer of Byrd's testimony, only cited to rule 801(d)(1)(B) of the Federal Rules of Evidence in making this claim, and did not cite to the Connecticut Code of Evidence. The court denied the motion, noting the "absence of any showing or indication that Federal Rule of Evidence 801(d)(1)(B) has been adopted by the Supreme Court of Connecticut or otherwise is applicable in state court proceedings."

"Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection."... Moreover, "[a]lthough the [c]ode follows the general format and sometimes the language of the Federal Rules of Evidence, the [c]ode does not adopt the Federal Rules of Evidence or cases interpreting those rules."...We therefore decline to review this claim.

Pretty harsh, right? It's clear that Corbett objected at trial that the subject statement qualified for admission as a prior consistent statement and merely erred by citing to Federal Rule of Evidence 801(d)(1)(B) rather than Connecticut Code of Evidence Section 6-11. But should that simple error have precluded appellate review when it was clear that the court basically knew what Corbett was doing? The court in Corbett of course was careful to distinguish the Connecticut Code of Evidence from the Federal Rules of Evidence, but Federal Rule of Evidence 103 deems an objection sufficient to preserve an issue for appellate review if the objection states the specific ground for the objection or if the ground for the objection "was apparent from the context..." Shouldn't the appellate court have applied this principle in Corbett?

-CM

 

Ham Handed?: 6th Circuit Finds Character Evidence Properly Excluded Despite Mercy Rule

While Federal Rule of Evidence 404(a)(1) precludes the admission of propensity character evidence, Federal Rule of Evidence 404(a)(2)(A), the "mercy rule," states that

a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it...

That said, Federal Rule of Evidence 405(a) states that

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

And what this means is that the defendant in United States v. Silber, 2012 WL 171397 (6th Cir. 2012), was out of luck.

In Silber, Dr. Alan Silber was convicted defrauding Medicare to the tune of several hundred thousand dollars by prescribing expensive medications to patients who did not need them. At trial, the district court excluded Silber's testimony that he received no overbilling notices from Medicare while working in earlier jobs. Silber offered this evidence to show his honest character.

After he was convicted, Dr. Silber appealed, claiming that his proffered testimony was admissible under Federal Rule of Evidence 404(a)(2)(A). The Sixth Circuit disagreed, concluding that

Although a criminal defendant generally may introduce character evidence, see Fed.R.Evid. 404(a)(2)(A), he must do so through "testimony about [his] reputation or by testimony in the form of an opinion," Fed.R.Evid. 405(a). Only where "a person's character or character trait is an essential element" of the charge (not true here) may the defendant introduce character evidence about "relevant specific instances of the person's conduct."

And, according to the court,

The testimony at issue falls squarely within Rule 405's implicit prohibition. A leading treatise provides a helpful example: "a federal inspector charged with accepting a bribe from a meat packer can call a character witness to show his reputation for being honest, but he may not call other meat packers to testify that he did not solicit bribes from them."...Silber's attempt to establish his character for honesty by showing that Medicare had not previously noticed any overbillings from him was, if anything, even more ham-handed: rather than calling others to testify to specific instances in which he had not behaved dishonestly, he attempted to do so himself. The court properly excluded the testimony.

-CM

This Is A Recording?: California Court Finds No Error In Admission Of Recorded Recollection Despite Contradictory Testimony

In a post in August 2010, I wrote about the opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010). That post concerned California Evidence Code Section 1237, which, similar to Federal Rule of Evidence 803(5), provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made

(i) by the witness himself or under his direction or

(ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

That post questioned whether the California Supremes were correct in deeming a statement made three months after an event admissible under California Evidence Code Section 1237. In its recent opinion in People v. Gallardo, the Court of Appeal, Fourth District, Division 1, California, also allowed for the admission of a statement that was about three months old. And, as in People v. Cowan, I'm not sure that the court got it right, albeit for a different reason.

In Gallardo, Robert A. Gallardo, Jr. was convicted of making a criminal threat, misdemeanor infliction of corporal injury to a person he formerly dated, vandalism, two counts of disobeying a restraining order, and misdemeanor battery. He thereafter appealed, claiming, inter alia, that the trial court erred in allowing for the admission, under California Evidence Code Section 1237, of a recorded statement made by the alleged victim to police about three months after the crime charged. The appellate court initially noted that Cowan held that even statements made three months after an even can still be made while the event was fresh in the witness' memory and satisfy Section 1237.

Gallardo claimed, however, that the alleged victim's recorded statement was "unreliable because her trial testimony contradicted the statement, and she admitted she was angry at the time she made the statement." The appellate court disagreed, concluding that

Gallardo's argument...does not go to the admissibility of the evidence, but instead, to its weight. The jury heard the differing testimony and, as the factfinder, was in the best position to determine which testimony was most credible. 

I disagree. As the language of Section 1237 makes clear, a recorded recollection is only admissible if it "[i]s offered after the witness testifies that the statement he made was a true statement of such fact...." In other words, the classic recorded recollection case involves a witness who forgets an event or portions of an event but is willing to testify that a prior recorded statement was a true statement of fact. That's not what happened in Gallardo. Instead, the alleged victim's trial testimony apparently contradicted her prior recorded statement, meaning that the alleged victim did not testify that the recorded statement was a true statement of fact. And despite the court's contrary conclusion, such testimony is a foundation fact, not merely something that goes to the weight of the evidence.

-CM 

Reelin' In The Years: NJ Case Reveals Differences Between Federal & New Jersey Rule Of Evidence 609

Federal Rule of Evidence 609(b) states:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Moreover, the Advisory Committee Note to this Rule states that "[a]lthough convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." In other words, it is rare that a conviction that is more than ten years old is admissible under Federal Rule of Evidence 609(b).

Conversely, New Jersey Rule of Evidence 609 simply states that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

And, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Rock, 2012 WL 177866 (N.J.Super.A.D. 2012), makes clear, convictions that are more than ten years old are routinely admitted under this Rule.

In Rock, Eric Na–Eem Rock was convicted of two counts of armed robbery, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, and, after a second jury trial, second-degree possession of a weapon by a convicted person. Before trial, the court determined that two of Rock's prior convictions would be admissible in the event that he testified at trial: Rock's 1998 convictions for fourth-degree evidence tampering and second-degree aggravated assault. Specifically,

The judge noted that the evidence tampering conviction "even though it's only a fourth[-]degree crime,... falls into that...category of crimes that impact one's veracity." The judge concluded that "the convictions pass the test with regard to remoteness" and will "be admitted for purposes of impeachment if the defendant" testifies. However, "it would be appropriate to sanitize" both convictions, allowing the State to refer only to the "date of the conviction, the degree of the crimes of which he was convicted, and the sentence that was imposed for each conviction."

In addressing Rock's appeal, the the Superior Court of New Jersey, Appellate Division held that

There is no bright-line rule providing a length of time after which a prior conviction is automatically considered too remote. See State v. Murphy, 412 N.J.Super. 553, 564 (App.Div.) (contrasting New Jersey case law with Fed.R.Evid. 609(b), which establishes a ten-year rule for admissibility of prior convictions)....In appropriate circumstances, convictions older than ten years have been found admissible.

The court then found that

the trial judge did not mistakenly exercise his discretion in ruling that defendant's convictions would be admissible if he testified. Certainly, a jury was entitled to know this information in assessing defendant's truthfulness. Moreover, these convictions clearly had a bearing on defendant's credibility and were not so distant in time to be remote.

Really? An aggravated assault conviction had a bearing on Rock's credibility? I don't see it. But what I do see is that if Rock's case were governed by Federal Rule of Evidence 609(b), there is no way that it would have been deemed admissible.

-CM

Bad Trip: Court Of Appeals Of Iowa Oddly Hedges On Issue Of Whether Statement Qualified As Present Sense Impression

Like its federal counterpart, Iowa Rule of Evidence 5.803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

So, let's say that a defendant is charged with second-degree murder and related charges. And let's say that at several points during trial, the prosecution introduces a hearsay statement that the defendant was on a "bad crack trip" at the time of the killing. Finally, let's say that, on appeal, the prosecutor himself conceded that the person making that statement had no information to suggest that the defendant actually used crack cocaine on that evening. Is there any chance that the statement qualified for admission as a present sense impression under Rule 5.803(1)? Well, let's take a look at the recent opinion of the Court of Appeals of Iowa in State v. Mayton, 2012 WL 163047 (Iowa.App. 2012).

In Mayton, the facts were as stated above. In response to the defendant's appeal, the prosecution claimed that the subject statement was not hearsay because it was offered "to show the responses and reactions of the persons hearing the statements" or to "provide context," not to prove the truth of the matter asserted (i.e., that the defendant was on a "bad crack trip"). The Court of Appeals of Iowa disagreed, concluding that "[t]here is no question in our minds that the statement was offered to prove the truth of the matter asserted...." Specifically, the court found that

The responses and reactions of individuals at the scene, as well as the context, were fleshed out in great detail over the course of the two-week trial and this single statement did nothing to enlighten the jury about the unfolding events....The statement did, however, cast an unwarranted aspersion on [the defendant] because, as the prosecutor himself conceded, [the declarant] had no information to suggest [the defendant] actually used crack cocaine on that evening. As the statement was offered for the truth of the matter asserted, it was hearsay.

The court then pointed out that, "[a]nticipating this conclusion, the State argues the statement nonetheless was admissible under the 'present sense impression' exception to the hearsay rule." The court found, however, that it did not need to "address the applicability of this exception" because it was "persuaded by the State's alternate argument that the statement was not prejudicial."

Here's my question: Why did the court even bother to note that it did not need to "address the applicability of this exception"? The implication of such a statement is that it was at least arguable that the exception applied when in fact it clearly did not. As with live testimony, for a statement to come in under an exception to the rule against hearsay, the speaker needs personal knowledge pursuant to Rule 602. By the prosecution's own admission, the person claiming that the defendant was on a "bad crack trip" had no information to suggest that the defendant actually used crack cocaine. Thus, it was clear that the statement did not qualify for admission under Rule 5.803(1) or any exception to the rule against hearsay.

-CM

Judge Me Not: Court Of Appeals Of Kentucky Finds Problems With Judicial Research, Comment

Like its federal counterpart, Kentucky Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

As the recent opinion of the Court of Appeals of Kentucky in Whitlock v. Haney, Sr., 2012 WL 2012 WL 163024 (Ky.App. 2012), makes clear, however, Rule 605 covers not only actual judicial testimony but also improper judicial research and improper judicial comment.

In Whitlock, Arthur Whitlock appealed from an order of the Carter Circuit Court granting a directed verdict and dismissing his malicious prosecution claim against Larry Haney, Sr. Specifically, Whitlock claimed that

the trial court considered evidence outside of the record when granting the directed verdict. The trial judge noted that she had been present at the time when the criminal charges against Whitlock were dismissed, and she took exception to the manner in which Haney and his counsel characterized that dismissal. The trial court also noted that Whitlock appeared before the grand jury after the dismissal of his charges. Following that appearance, the grand jury indicted Haney for perjury, but that charge was also dismissed prior to trial. Whitlock contends that these matters were outside of the evidence presented at trial and were therefore not proper for the court to consider.

In response, the Court of Appeals of Arkansas began by noting that "[t]rial courts may take judicial notice of court records of the same court when the records concern the same parties and the same issues." That said, the court then noted that "[t]he trial court's observations about the circumstances about the dismissal of the charges against [Whitlock] are problematic because they implicate the trial judge as a witness. Kentucky Rules of Evidence (KRE) 605." Nonetheless, the court concluded that

while the trial judge noted that her recollection of these events conflicted somewhat with Whitlock's account, the judge stated that her memory confirmed Whitlock's central argument – that the theft charges were dismissed due to lack of evidence. Thus, Whitlock was not prejudiced by the trial court's consideration of this evidence.

The court then found, though, that

On the other hand, the trial court's statements about Whitlock's appearance before the grand jury and the perjury charge against Haney merely involved matters within the court's record. We question whether it was appropriate for the court to speculate about the content of Whitlock's grand jury testimony, since no evidence was entered about that proceeding. The tone of the court's comment suggests, without any foundation, that Whitlock may have given false testimony to the grand jury. Trial courts should avoid such gratuitous speculation. Nevertheless, the trial court's opinion does not suggest that it considered this speculation in its probable cause determination about the charges against Whitlock. Therefore, the inclusion of the comment was, at most, harmless error. On remand, however, we would suggest that the trial court avoid such comments.

-CM

Unsequestered Witness: Southern District Of Florida Finds No Need For New Trial Despite Rule 615 Violation

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

So let's say that this witness sequestration rule is violated. What should the court do? According to the recent opinion of the United States District Court for the Southern District of Florida in United States v. McQueen, 2012 WL 163885 (S.D. Fla. 2012), there are 3 options.

In McQueen, Alexander McQueen was convicted of conspiring "to injure, oppress, threaten, and intimidate inmates at [a state prison] in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and law of the United States, namely, the right to be free from cruel and unusual punishment." Moreover, McQueen and Steven Dawkins were convicted of knowingly falsifying and making false entries in records with the intent to impede, obstruct and influence the investigation and proper administration of a matter within the jurisdiction of the Federal Bureau of Investigation.

After they were convicted, McQueen and Dawkins file a motion for a new trial, claiming a violation of Federal Rule of Evidence 615. Specifically, "[d]uring cross-examination of a Government witness, it was learned that incarcerated Government witnesses had been placed in the same cell together prior to and after testifying at trial, and spoke to each other about the case." The defendants claimed that they were "entitled to a new trial because the Court erroneously denied a motion for mistrial based on a violation of the witness sequestration rule of Federal Rule of Evidence 615."

The Eleventh Circuit disagreed, concluding that

As the Court explained at the time the issue arose during the trial, the Eleventh Circuit has identified three sanctions at a court's disposal when the witness sequestration rule is violated: a citation for contempt; allowing thorough cross-examination before the jury on the facts of the violation; or striking the testimony given—the most serious of the three sanctions. See United States v. Jimenez, 780 F.2d 975, 980 (11th Cir.1986) (citing United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.1983)). The undersigned applied the standards enunciated in Jimenez, and seeing no "connivance by the witness or counsel to violate the rule,"...found thorough cross-examination about the violation sufficient to cure the violation. The Court sees no reason to deviate from its initial decision now.

-CM

The Interpreter: 9th Circuit Finds Interpreters Don't Need To Give An Oath Before Testifying At A Trial

Federal Rule of Evidence 603 states that

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

So, under Rule 603, a witness must give an oath or affirmation before he testifies. Meanwhile, Federal Rule of Evidence 604 states that

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

So, before an interpreter may translate the testimony of a witness, he must give an oath or affirmation. Well, not exactly, according to the recent opinion of the Ninth Circuit in United States v. Solorio, 2012 WL 161843 (9th Cir. 2012).

In Solorio, Carlos Quintana Solorio was convicted of possession with intent to distribute 500 or more grams of a substance containing methamphetamine and conspiracy to distribute 500 or more grams of a substance containing methamphetamine. At trial, Miguel Portillo-Rodriguez testified as a witness for the prosecution in Spanish, with translation by interpreters Carol Rhine–Medina and Aracely Callaway.

Solorio did not object to these translations at trial, but he later appealed, claiming, inter alia, that the trial court erred in permitting these translations because neither Rhine–Medina nor Callaway gave an oath or affirmation before testifying. In addressing this issue, the Ninth Circuit initially noted that

Rule 604 does not...indicate whether such an oath must be administered in any particular manner or at any specified time, including whether the oath must be administered for each trial. The Administrative Office of the United States Courts ("AO"), has published guidelines on the administration of oaths to interpreters, observing that "[p]olicies with regard to the oath of interpreters vary from district to district and from judge to judge."...Although some courts administer oaths to interpreters each day, or once for an entire case, others "administer the oath to staff and contract interpreters once, and keep it on file."

The Ninth Circuit then

agree[d] with the courts that proceed in the latter fashion that there is no requirement that the oath be administered during each trial. Most telling in that regard is the absence of any such requirement—or any indication as to how or when interpreters are to be qualified and their oaths administered—in Rule 604. In contrast, Rule 603, applicable to witnesses, specifies that the oath must be administered "[b]efore testifying," suggesting a temporal nexus to the actual appearance of each witness at a particular trial. Unlike witnesses, an interpreter's role is not limited to a specific trial, and there is no apparent reason the oath need be either. In the absence of any requirement that the interpreter's oath be administered during each new trial, it could not have been plain error for the trial judge to have failed to do so.

That said, the court then found that the record did not indicate indicate "that the interpreters took the requisite oath at any time." Thus, the court found error but because it did not find plain error affecting Solorio's substantial rights, it refused to reverse because of the absence of a timely objection.

-CM

No Expert: 3rd Circuit Finds No Error In Refusing To Appoint Expert Under Rule 706

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As the recent opinion of the Third Circuit in Born v. Monmouth County Correctional Inst., 2012 WL 130697 (3rd Cir. 2012), males clear, courts are under no affirmative obligation to appoint experts under Rule 706(a). But as the opinion also makes clear, some courts have done some interesting things with the Rule.

In Born,  Karen Born brought a section 1983 lawsuit alleging that Sergeant William Cornine and Corrections Officer Robert Pisano violated her rights under the Eighth Amendment to the United States Constitution. Specifically,

Born allege[d] that in March 2007, when she was a prisoner in the Monmouth County Correctional Institution (MCCI), Officer Pisano stomped on her back and that Sergeant Cornine observed this but did not intervene. She filed her complaint, pro se, on August 9, 2007, requesting $200,000 in relief that she termed "restitution."...On November 8, 2007, a pretrial order was entered in the case by Magistrate Judge Tonianne Bongiovanni, directing Born to name any expert witness she intended to call at trial by April 24, 2008.

On January 8, 2009, the parties appeared before Judge Bongiovanni for a pretrial conference and filed their joint pretrial memorandum, which did not identify any expert witnesses. It appears from the record that Born requested that an expert be appointed for her to establish that she suffers from post-traumatic stress disorder (PTSD), but that Judge Bongiovanni denied this request.

After the jury found for the defendants, Born appealed, claiming, inter alia, that the judge erred by refusing to appoint an expert pursuant to Federal Rule of Evidence 706(a). The Third Circuit disagreed, finding that the exercise of authority under Rule 706(a) is "in the discretion of district court judges, and we see no basis for saying that there was an abuse of discretion in not ordering the defendants here to pay for Born to hire an expert witness."

Before reaching this conclusion, however, the Third Circuit pointed out

that some courts have held that Rule 706 can be used to appoint an expert for an indigent civil litigant and apportion the costs of such expert to the other side. See Ledford v. Sullivan, 105 F.3d 354, 360 (7th Cir.1997); Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir.1996); McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir.1991), vacated and remanded on other grounds sub nom. Helling v. McKinney, 502 U.S. 903 (1991); Webster v. Sowders, 846 F.2d 1032, 1038–39 (6th Cir.1988); U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1058 (8th Cir.1984). We, however, have never so held. Cf. Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (finding no statutory authority for courts to pay expert witness fees of indigent civil litigants; not mentioning Fed.R.Evid. 706).

-CM

Copping A Plea: 11th Circuit Addresses Admissibility Of Plea Discussions At Sentencing

Federal Rule of Evidence 410(4) provides that

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

It is well established that the rules of evidence generally do not apply at the sentencing stage of trial. But does this hold true with regard to Rule 410(4)? Let's take a look at the recent opinion of the Eleventh Circuit in United States v. Davis, 2012 WL 118444 (11th Cir. 2012).

In Davis, Karriece Quontrel Davis appealed from a district court's denial of his postjudgment Motion to Enforce Specific Performance of the Plea Agreement. That plea agreement was in connection with charges against him for possession of counterfeit currency with intent to defraud, and Davis claimed, inter alia, that the government breached the plea agreement by using protected statements he uttered during his debriefing sessions at sentencing.

In addressing Davis' argument, the Eleventh Circuit noted that 

Federal Rule of Evidence 410 states that any statement made during the course of guilty plea proceedings or plea discussions with the prosecution that do not result in an ultimate plea are inadmissible against the defendant in criminal proceedings. In addition, the Sentencing Guidelines provide that when the Government agrees that self-incriminating information provided pursuant to the cooperation agreement will not be used against the defendant, such information "shall not be used in determining the applicable guideline range, except to the extent provided in the agreement."

In the end, though, the problem for Davis was that

the Government agreed not to use the statements Davis made pursuant to the agreement only if Davis satisfied the terms and conditions of the agreement. Davis did not comply with the terms because he did not fully cooperate with the Government; therefore, the Government did not violate the plea agreement.

-CM

Hearsay For Dummies: "The Good Wife" Episode "Bitcoin For Dummies" Badly Botches Hearsay Issue

I like "The Good Wife." I've written about it on this blog several times (see here, here, and here). I think that the show generally gets the law right more than most other legal shows. That certainly wasn't the case, though, with the show's most recent episode, "Bitcoin for Dummies," which contained the most egregious (non)application of the rule against hearsay that I've ever seen in a legal movie or TV show.

As the title suggests, the episode dealt with Bitcoin, described on its site as

an experimental new digital currency that enables instant payments to anyone, anywhere in the world. Bitcoin uses peer-to-peer technology to operate with no central authority: managing transactions and issuing money are carried out collectively by the network. Bitcoin is also the name of the open source software which enables the use of this currency.

In the episode, as in real life, the creator of Bitcoin -- Mr. Bitcoin -- is unknown, which creates a problem for returning guest star Bob Balaban and the Treasury Department, which wants to prosecute the creator for making an alternate currency. Jason Biggs (the guy who #@$!%# the pie), guest stars as an attorney who ostensibly represents the creator (and won't reveal his identity due to attorney-client confidentiality) and whom the Treasury Department charges in connection with Bitcoin either because it believes that he really created it or to smoke out the actual creator.

Lockhart/Garden's theory is the latter, and its investigator, Kalinda, gets a couple of Treasury Department flunkies to call their boss to the hotel of a cryptography convention to uncover the alleged actual creator. Kalinda then surreptitiously records Balaban's character, Gordon Higgs, as he says that he's looking for the real creator of Bitcoin, with the implication being that the Treasury Department doesn't really think that Biggs' character created it. This then leads to the following exchange the next day in court (at 39:48 of the episode):

Alicia Florrick: And he stated that he was looking for the real inventor of Bitcoin?

Gordon Higgs: Objection, your honor!

Judge Sobel: No, Mr. Higgs. You may answer.

Kalinda: Mr. Higgs stated that he believed I was on the right track to finding Mr. Bitcoin.

Alicia Florrick: And what was that right trrack?

Kalinda: Bao Shuwei, and econophysicist from Nankai University.

Gordon Higgs: Objection, this is all hearsay, your honor.

Kalinda: No, no, uh, I recorded it..by accident, I just got a new phone, and I didn't know how to turn it off.

Really? Federal Rule of Evidence 801(a)-(c) sets forth three definitions:

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Under these definitions, Higgs' statement was clearly hearsay, and it is irrelevant that Kalinda recorded it. Indeed, Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for "recorded recollections" such as audio recordings, making clear that such recordings are indeed hearsay. Higgs' statement would not qualify under this exception for a variety of reasons, but it could have qualified for admission under Federal Rule of Evidence 803(5), which provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

In other words, the statement could have been admissible to prove Higgs' (and the Treasury Department's) belief that Biggs' character was innocent but not to prove that he was in fact innocent. And this is because Higgs' recorded statement was clearly hearsay, despite what the show led viewers to believe.

-CM

Living Social: Supreme Court Of Alaska Finds Medical Hearsay Exception Applies To Statements To Social Worker

Like its federal counterpart, Alaska Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

But does Rule 803(4) apply to statements made to a clinical social worker? According to the recent opinion of the Supreme Court of Alaska in Martha S. v. State, 2012 WL 104471 (Alaska 2012), the answer is "yes."

In Martha S., Martha and William S., the parents of six children, appealed a superior court order adjudicating their two youngest children as children in need of aid and placing the children in the custody of the Office of Children's Services. At trial, clinical social worker Cynthia Bridgman testified about numerous statements made by Allie, the daughter of Martha and William,

during her therapy sessions that related to alleged sexual experiences or exposure to sexual material. In recounting these statements, Bridgman clarified that her role was to provide treatment for Allie and that she was not conducting forensic interviews. The superior court concluded that the statements were admissible because they were made for the purposes of medical diagnosis or treatment under Evidence Rule 803(4). The superior court further explained that "[t]he circumstances and details are necessary to the treatment[,] including the identity of the perpetrator and the circumstances of the sexual contact and the nature of the sexual contact. [Allie] understands the purpose of therapy and g[ave] the statements understanding...th[at] context."

Specifically, Allie told Bridgman that she was sexually assaulted by her brothers. 

In appealing the superior court order, Martha and William claimed, inter alia, that Allie's statements didn't qualify for admission under Alaska Rule of Evidence 803(4). The Supreme Court of Alaska disagreed, concluding that

The commentary to the rule provides that the statements need not be made to a physician, and many other courts have applied this rule to mental health workers under rules similar to Evidence Rule 803(4).[FN17] As the Alabama court of appeals has explained, this hearsay exception applies where "the purpose of the child's counseling sessions...[is] for treatment" rather than "designed primarily for an evaluation of the child for a custody recommendation."

[FN17]....Federal courts have also allowed statements to mental health workers to be admitted under Federal Rule of Evidence 803(4), which is identical to Alaska's rule. 

Moreover, the court found no problem with the content of Allie's statements, noting that "The court of appeals has recognized that a child's statements identifying an assailant in the case of potential sex abuse can be made for the purposes of treatment...."

-CM

In The Public Eye: Puerto Rico Court Finds Pilot's Statements Should Be Excluded From Public Report

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

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

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

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

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

The theory behind this public records exception to the rule against hearsay is "the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record." What this makes clear is that the public records exception only covers statements made by public officials in public records, not statements made to public officials by non-public officials that are recorded in public records, as is made clear by the recent opinion of the United States District Court for the District of Puerto Rico in Echevarria v. Caribbean Aviation Maintenance Corp., 2012 WL 89839 (D.Puerto Rico 2012).

In Echevarria, the plaintiffs filed an

action against Robinson Helicopter Co...., Caribbean Aviation Maintenance, Corp. and Chartis Insurance Company—Puerto Rico...for the events that led to the death of Diego Vidal Gonzalez....On November 12, 2008 a helicopter piloted by Jose A. Montano...and carrying Vidal Gonzalez suffered severe damage while attempting to land at the Fernando Luis Ribas Dominicci Airport. Vidal Gonzalez was rushed to the Rio Piedras Medical Center where he was treated for injuries. Vidal Gonzalez lapsed into a coma and died 59 days later. Through the various consolidated actions Vidal Gonzalez's widow and three children..., his son..., his father and sisters...brought suit against Defendants for damages, claiming it was the negligence of Defendants that led to the death of Vidal Gonzalez.

The National Transportation Safety Board conducted an investigation of the accident and prepared a report. Included in the report were statements made by the helicopter pilot to the NTSB investigator. Before trial, the defendants filed a motion in limine, seeking to preclude parts of the NTB report, including the parts that contained statements made by the helicopter pilot. The United States District Court for the District of Puerto Rico granted this portion of the motion in limine, finding that

“The Advisory Committee's Notes make clear that Federal Rule of Evidence 803(8) exempts from the hearsay rule only reports by officials; and of course the pilots and other witnesses are not officials for this purpose. Moreover, the memoranda submitted to the government by its investigators often contained statements from witnesses which would make such memoranda encompass double hearsay."...Reports that contain multiple statements of hearsay or double hearsay, even if written by an official, can be excluded based on the hearsay rule or through the trial court's discretion rooted in Rule 403.

-CM

In The Main(e): Supreme Court Of Maine Reveals Lack Of Mercy Rule For Victim Character Evidence

Federal Rule of Evidence 404(a)(2)(B) provides in relevent part that

subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait...

In other words, despite the propensity character evidence proscription,  a criminal defendant charged with murdering a victim could present evidence concerning the victim's violent character pursuant to the above "mercy rule." Maine Rule of Evidence 404(a), however, does not contain a similar provision, which was fatal to the defendant's appeal in State v. Holland, 2012 WL 90160 (Me. 2012).

In Holland, Rory Holland was convicted of two counts of intentional or knowing murder based upon the shooting deaths of Derek Greene and Gage Greene. After Holland was convicted, he appealed, claiming, inter alia, that the trial court erred by precluding him from presenting evidence of the victims' violent reputations. Holland claimed that this evidence was plainly admissible under the Federal Rules of Evidence, as noted above.

The Supreme Court of Maine, however, responded that Holland's case was governed by the Maine Rules of Evidence and not the Federal Rules of Evidence. And the problem for Holland in this regard was that the Maine Rules of Evidence do not have a counterpart to Federal Rule of Evidence 404(a)(2)(B). Moreover, the court noted that

Our decision to diverge from the federal rule was intentional. Reputation evidence not known to the accused "is omitted from [Rule 404] because it has slight probative value and is likely to be highly prejudicial, so as to divert attention from what actually occurred." M.R. Evid. 404 Advisers' Note....

In other words, if Holland new of the victims' violent reputations before he shot them, evidence of their reputations would have been admissible to prove his reasonable apprehension of them. But because Holland did not know of their violent reputations, evidence of their reputations was inadmissible to prove their violent tendencies.

-CM

Parting Gesture: Court Of Appeals Of Indiana Finds Trial Court Properly Found Hand Gestures Were Excited Utterances

Like its federal counterpart, Indiana Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

And, as the recent opinion of the Court of Appeals of Indiana in Evans v. State, 2012 WL 77216 (Ind.App. 2012), makes clear, this "excited utterance" exception covers not only oral statements but also nonverbal conduct intended as an assertion.

In Evans,

A.K. was a 37–year–old resident at Eagle Valley Meadows, a long-term care facility in Indianapolis. A.K.'s family had placed her in the facility after she suffered a ruptured brain aneurysm that left her severely physically handicapped and unable to care for herself. She breathes through a tracheotomy tube and is fed through a tube. Although A.K. has feeling in her limbs, she maintains only a slight ability to move her left hand. The aneurysm did not affect her cognitive functions, and she communicates through hand gestures to indicate "yes" and "no" using her left hand. A.K.'s sister, M.K., visited A.K. at the facility every day.

Diyon Evans was a Certified Nursing Assistant at the facility and entered A.K.'s room at approximately 9:00 a.m. on April 7, 2009 and remained inside with the door closed for twenty to thirty miuntes. 

When M.K. arrived at the facility later that day, A.K. immediately began crying when she saw M.K. M.K. described the crying as "terrifying."...This was not the first time that M.K had seen A.K. cry, but because of the nature of her crying, M.K. suspected that something terrible had happened. M.K. asked A.K. a series of investigative questions to deduce what was wrong, beginning with whether her head hurt. A.K. gestured "no" to each of those questions....Then, not believing it to be a serious question, M.K. asked A.K. if she had been raped. A.K. began to cry harder and gestured "yes."...M.K. further questioned her sister, and A.K. signaled "yes" when asked whether it was one of her caretakers and whether that person was a man. A.K. also indicated she had been touched in her vagina and "butt" and gestured "yes" when asked whether the person had put his penis into her vagina and "butt."

At trial, the court allowed for the admission of testimony concerning A.K.'s gestures as excited utterances, leading to Evans' conviction for Rape and Criminal Deviate Conduct. After he was convicted, Evans appealed, claiming, inter alia, that the trial court erred in admitting testimony concerning A.K.'s gestures because "the State failed to present a clear record of the amount of time that elapsed between the rape and when A.K. reported the rape to M.K." 

The Court of Appeals of Indiana disagreed, concluding that

Here, the record reveals that Evans was in A.K.'s room with the door closed from approximately 9:00 to 9:30 a.m. M.K. testified that, when she arrived and A.K. told M.K she had been raped, she immediately reported that information to the on-duty nurse, who recalled talking to M.K. sometime around 5:00 p.m. Although the time between the incident and A.K.'s statements to M.K. may have been in upwards of seven hours, it is certainly conceivable that A.K.'s physical limitations prolonged the stress of the rape committed by her caretaker. Unable to talk, A.K. could not communicate to anyone about what had occurred until her sister arrived. Unable to move, she remained in the same bed where she had been raped. When she made the statements to her sister, A.K.'s crying was "terrifying."...Under these facts and circumstances, the trial court could reasonably conclude that, despite the elapsed time, A.K.'s statements to M.K. were made while she was under the continuing stress of excitement caused by the rape.

-CM

Dead Again: NJ Appellate Court Finds Dying Declarations Were Nontestimonial

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

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death.

Since the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), every case that I have seen dealing with Rule 804(b)(2) has found that the admission of a testimonial dying declaration per se does not violate the Confrontation Clause. But what about the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Whitehurst, 2012 WL 28670 (N.J.Super A.D. 2012)?

In Whitehurst, Tiquan Whitehurst was convicted of the first-degree purposeful or knowing murders of Joseph Cox and Charles Jackson and related crimes. These murders allegedly took place with Whitehurst in the back seat of a car being driven by Jackson, with Cox as the front seat passenger. Police Officer Gregory Hamilton

and police officer Lisa Sanchez arrived at the scene after...fire fighters and EMTs. Hamilton saw the front-seat passenger, Cox, had been shot in the head and was dead. He also saw defendant in the backseat, unconscious. Jackson was trying to unbuckle his seat belt, and said to Hamilton, "Officer, I'm dying, I want to get out the seat belt." Hamilton tried to calm Jackson, who repeated that he felt like he was dying and wanted to get out of his seat belt. When Hamilton asked what happened, Jackson responded, "[T]he guy in the back seat shot us." Jackson told Sanchez, "I'm dying. Ma‘am, I'm dying."

The trial court allowed for the admission of Jackson's statements as dying declarations, prompting Whitehurst's appeal after he was convicted. Specifically, Whitehurst claimed that these statements were testimonial, rendering them inadmissible under the Confrontation Clause.

the Superior Court of New Jersey, Appellate Division, disagred, noting that in Michigan v. Bryant,

the defendant challenged the admission of the murder victim's statements at trial claiming a violation of the Confrontation Clause. On the night of the crime, police found the victim, who had "a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty."...The officers asked the victim "what had happened, who had shot him, and where the shooting had occurred."...The victim died shortly after telling the police that the defendant had shot him and where the shooting occurred....

The Court held that "the ultimate inquiry is whether the 'primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.'"...The questions asked of the victim—"what had happened, who had shot him, and where the shooting occurred"—"were the exact type of questions necessary to allow the police to 'assess the situation, the threat to their own safety, and possible danger to the potential victim' and to the public."..."When, as in Davis, the primary purpose of an interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause."

The court then found Bryant analogous to the case before it despite Whitehurst's protestations to the contrary:

Defendant contends that the situation was different from that posed by Bryant because he was unconscious in the backseat of the car and the police did not face an ongoing emergency regarding the location or threat of a gunman at large. Of course, this argument overlooks the fact that the police knew defendant was the gunman only as a result of Jackson's responses to their questions. We believe it is clear that admission of Jackson's dying declarations did not violate the Confrontation Clause.

What's interesting about this conclusion is that the court even bothered to go through the analysis of whether Jackson's statements are testimonial. The implication seems to be that there would have been a Confrontation Clause violation if Jackson's statements were testimonial. That would be contrary to what other courts have found, and it will be interesting to see what the court does if presented with that factual circumstance in an upcoming case.

-CM