EvidenceProf Blog

Crossed Up: Supreme Court Of Montana Finds Trial Court Properly Circumscribed Character Inquiry

Like its federal counterpart, Montana Rule of Evidence 405(a) provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. 

So, let's say that pursuant to Montana Rule of Evidence 404(a)(2), defense counsel properly cross-examines a witness for the prosecution regarding the alleged victim's reputation for being a fighter. Can defense counsel now ask this witness about specific instances of fighting by the alleged victim? According to the recent opinion of the Supreme Court of Montana in State v. Daniels, 2011 WL 5357846 (Mont. 2011), the answer is "no."

In Daniels, Larry B. Daniels was convicted of  deliberate homicide as a result of his killing of his adult son Buddy. At trial, the prosecution called the defendant's 13 year-old son Hagen as a witness for the prosecution. After Hagen testified on direct, defense counsel cross-examined him, and he testified to Buddy's reputation for being a fighter pursuant to Montana Rule of Evidence 404(a)(2) without objection from the State. Thereafter, defense counsel asked Hagen about specific instances of fighting by Buddy, but the State did object to these questions, and the trial court sustained these objections.

After the defendant was convicted, he appealed, claiming, inter alia, that the trial court erred in circumscribing defense counsel's interrogation of Hagen. According to the defendant, defense counsel should have been able to ask Hagen about specific instances of fighting by Buddy pursuant to the last sentence of Montana Rule of Evidence 405(a), which states that "[o]n cross-examination, inquiry is allowable into relevant specific instances of conduct." The Supreme Court of Montana disagreed, concluding that

Rule 405(a) permits cross-examination about specific instances of conduct by a party who is adverse to the witness' reputation or opinion testimony, not by the same party. See § 26–1–101(1),MCA (emphases added) ("'Direct examination’ is the first examination of a witness on a particular matter. 'Cross-examination' is the examination of a witness by a party other than the direct examiner."); see also State v. Jones, 48 Mont. 505, 516, 139 P. 441, 445 (1914) (first emphasis in original) ("As the favorable [reputation] testimony tends to sustain the presumption of innocence which the law indulges in favor of the defendant, by introducing it the defendant tenders an issue of fact, viz., whether his reputation is such as the witnesses say it is, and the prosecution has the right to cross-examine the witnesses to ascertain the sufficiency of the grounds upon which they base their statements."). Otherwise, a party could offer reputation evidence and thereby open the door to further examination about specific instances, an interpretation which would swallow the rule. 

-CM

Google Me: Should Information From Google Maps Be Subject To Judicial Notice?

Judicial notice is a doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Federal Rule of Evidence 201(b) provides that

The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

The opinion of the Second Circuit in Ke Chiang Dai v. Holder, 2012 WL 10969 (2nd Cir. 2012), is the second recent opinion (see here) to find that a court may take judicial notice of information from Google Maps. But how comfortable should we be with these conclusions?

In Holder, an Immigration Judge denied Ke Chiang Dai's application for asylum, withholding of removal, and relief under the Convention Against Torture, and the BIA later affirmed that decision. The BIA later denied Dai's motion to reopen the matter, prompting his appeal to the Second Circuit. Dai's motion to reopen was based upon alleged increased harassment and abuse that he faced in China based upon his Christianity, and the Second Circuit agreed with him that there were several flaws with the BIA's decision (although it ultimately affirmed it): 

For example, it concluded that Dai"“failed to establish that conditions in China and, more specifically, his home province of Fujian, have changed fundamentally since his merits hearing" (emphasis added), when Dai's home province is Zhejiang. It stated that there was no evidence in the record that any increase in China's harassment and abuse against Christians around the Beijing Olympics had continued after the Olympics when the Congressional–Executive Commission on China's 2009 report explicitly stated that the "pre-Olympics campaign against Protestant activists and unregistered congregations in 2008 showed few signs of abatement in 2009." Its decision to discount a letter from Dai's friend Hong who lived in Ouhai District, Wenzhou City because Dai lived in Lucheng District, Wenzhou City and the two "never resided in the same city or district" and thus did not explain how they knew each other was arbitrary, given that Lucheng District and Ouhai District are neighboring districts within the same city.[FN1] And its suggestion that Dai "does [not] have to attend a 'mega-church' or the like" to practice Catholicism may be an inappropriate instruction about how Christians in China should tailor their religious practices to avoid persecution. 

The footnote in this block quote stated:

This fact is readily verifiable by searching for a map of "Wenzhou City, China" on http://maps.google.com/. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.2007) (citing the Federal Rules of Evidence for the proposition that judicially noticed facts must be not "subject to reasonable dispute" in that they are either "generally known" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.").

Now, maybe this is the wrong place to bring this up because I'm pretty sure that Google Maps isn't wrong concerning the fact that Lucheng District and Ouhai District are neighboring districts, but is Google Maps generally really a source whose accurately cannot reasonably be questioned? I would argue that the answer is "no," and it seems as if Google agrees.

Indeed, check out this "Help" page from Google:

Contact Us

We appreciate your help in improving the Google Earth database. If possible, please include the address or latitude and longitude of the specific area where you've found a problem. This will help us find a solution more quickly. While you won't receive a personal response, rest assured that we'll investigate your report.

Depending on the type of error you've found, you may be able edit the map yourself on Google Map Maker. Try making changes on Map Maker or learn more about getting started with Map Maker. You can use Map Maker to edit features in the 187 countries and regions listed here.

Doesn't this reveal that the accuracy of Google Maps can be questioned and that Google even encourages it and allows users to make changes (of questionable accuracy)?

-CM

Return To Sender?: Court Of Appeals Of Arkansas Precludes Jury Impeachment Regarding Pre-Existing Knowledge

Like its federal counterpart, Arkansas Rule of Evidence 606(b) provides that

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 his or any other juror's mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions 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. 

But, as the recent opinion of the Court of Appeals of Arkansas in Blake v. Shellstorm, 2012 WL 11254 (Ark.App. 2012), makes clear, the exception for "extraneous prejudicial information" covers information acquired after the start of trial, not pre-existing knowledge.

In Shellstorm, Scott Blake, a postal employee, was involved in an automobile accident with Jonathan Shellstorm and brought an action against Shellstorm and others seeking damages for his injuries.

Prior to trial, Blake filed a motion in limine seeking to prevent any mention of his medical-insurance coverage, and it is undisputed that insurance was not mentioned at trial. It is also undisputed that Blake did not request or proffer a collateral-source instruction to be given to the jury. The case was submitted to the jury with interrogatories on the issue of negligence, but a general-verdict form with regard to damages. The jury returned a judgment on liability in favor of appellee Whitten but against appellee Shellstrom, and awarded Blake damages in the amount of $10,400.

After trial,

Blake obtained affidavits from two of the jurors stating that two other jurors, who were unnamed, said during jury deliberations that they had been federal employees and "knew as a matter of fact" that Blake would have health insurance through his employment with the U.S. Postal Service. The affidavits also stated that, during deliberations, one of the affiants asked to send a note to the judge asking if the jury could consider insurance, but the jury "all agreed" that the note did not need to be delivered to the court. One of the affiants further stated that the verdict would have been much larger if the jury had not believed that Blake had insurance. 

Blake thereafter moved for a new trial, claiming that the jurors' communicated knowledge constituted extraneous prejudicial information, meaning that jurors could impeach the verdict pursuant to Arkansas Rule of Evidence 606(b). The Court of Appeals of Arkansas disagreed, finding that

The issue of extraneous prejudicial information has arisen most often when jurors have visited an accident scene during trial and reported their observations to other jury members. This case, however, does not involve a juror traveling outside the courthouse to gather extrinsic information. Rather, Blake argues that the jury was exposed to extraneous prejudicial information in the form of two unnamed jurors' statements, allegedly made during jury deliberations, that they had been federal employees and knew Blake would have health insurance through his job at the U.S. Postal Service. We disagree. This court has previously held that knowledge obtained by a juror and brought into the jury room from the ordinary scope of her life experiences, including knowledge obtained through her profession or vocation, does not qualify as "extraneous prejudicial information" as contemplated by Rule 606. In fact, the jury in this case was given the following instruction: "In considering the evidence in this case you are not required to set aside your common knowledge, but you have a right to consider all of the evidence in light of your own observations and experiences in the affairs of life." Because the statements alleged by Blake's affiants clearly fit into this category, Rule 606 prohibited the circuit court from considering Blake's affidavits, and there was no evidence of juror misconduct upon which to grant a new trial.

-CM

Striptease: DDC Finds Strip Club-Defendant Can Question Plaintiff-Strippers About Unreported Tips, But...

Federal Rule of Evidence 608(b) provides  that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

Under Rule 608(b), it is clear that witnesses can only be questioned about acts relating to crimen falsi, i.e., acts of falsehood or deceit, such as a waitress failing to report tips as income, as was the case in United States District Court for the District of Columbia in Tompson v. House, Inc., 2011 WL 6794939 (D.D.C. 2011). But as the language of Rule 608(b) makes clear, such questioning often won't be effective.

In Tompson, the plaintiff on behalf of herself and all others similarly situated brought an action against several defendants, including The House, a nightclub and bar featuring nude exotic dancers. According to the complaint,

During her term of employment, Plaintiff was paid approximately $40 in cash per night for the nights that she danced. Plaintiff regularly worked ten (10) hour dance shifts per night, four (4) nights per week. While in Defendants employ, Plaintiff's regular rate of pay was approximately $4.00 per hour ($40 per day / 10hrs/night).

The plaintiff's complaint alleged, inter alia, that the defendants took unexplained deductions from her wages and that her rate of pay violated the minimum wage level set by the Fair Labor Standards Act.

Before trial, the plaintiffs filed  motion in limine "to prohibit evidence of any kind of tip income received by plaintiffs as irrelevant because any evidence of tips or gratuities received from patrons at defendants' club cannot be used as an offset against minimum wages owed to plaintiffs by defendants." In response, the

Defendants agree[d] that tip income does not provide an offset against minimum wages due....Defendants argue[d], however, that the tip income [wa]s relevant because plaintiffs' receiving tip income and not reporting it as income on their tax returns bears on their credibility. Additionally, according to defendants, plaintiffs' receipt of large amounts of tip income would establish that defendants not paying them minimum wage was done in good faith because defendants were aware that plaintiffs were receiving tips that were apparently greater than the minimum wage.

The United States District Court for the District of Columbia sided with the defendants, but not really. According to the court,

First, while not paying one's taxes might qualify as a prior bad act, defendants are bound by plaintiffs' answers and their not reporting their tips as income may not be proved by extrinsic evidence. Fed. R.Evid 608(b). Thus, proof of their tip income from some source other than their own testimony is inadmissible.

Second, each plaintiff would have an absolute right at the hearing not to answer whether she received and reported tip income because the answer might tend to incriminate her.

So, in other words, under Rule 608(b), the defendants could ask the plaintiffs about failing to report their tips because these were acts of falsehood deceit; however, (1) the plaintiffs could refuse to answer these questions on Fifth Amendment grounds; and (2) the defendants couldn't prove these acts through extrinsic evidence.

-CM

It's Of No Use: 6th Circuit Finds Proffer Statements Pursuant To Use Immunity Offer Aren't Statements Against Interest

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.

So, let's say that a co-defendant makes proffer statements that (patially) incriminate himself and (partially) exonerate himself pursuant to an offer of use, but not derivative-use, immunity. Do those statements qualify as statements against interest under Rule 804(b)(3)? According to the recent opinion of the Sixth CIrcuit in United States v. Jackson, 2011 WL 6881788 (6th Cir. 2011), the answer is "no."

In Jackson, Michael Clark and James Sigmund Jackson were convicted of conspiracy to possess with intent to distribute and to distribute controlled substances, and Clark was also convicted of related crimes. Before trial, Todd Bennally, another co-defendant, made proffer statements as part of a Kastigar agreement that provided direct-use immunity, but not derivative-use immunity. In other words, the government could not diretly use Clark's statements against him at a subsequent trial (use), but it could use his statements to gather other evidence which it could introduce against him at a subsequent trial (derivative use).

After Clark and Jackson were convicted, they appealed, with Jackson claiming, inter alia, that the district court erred in precluding him from introducing Bennally's proffer statements at trial pursuant to Federal Rule of Evidence 804(b)(3). Unfortunately, the Sixth Circuit's opinion doesn't reveal that content of Clark's statements, but I think it is safe to assume that they at least partially incriminated him and at least partially exonerated Jackson. But were they the type of statements that a reasonable person wouldn't make because they would expose him to criminal liability? According to the Sixth Circuit, the answer was "no."

First, the court found that

Where a defendant derives benefit from truthful statements, specifically avoidance of direct criminal prosecution, those statements rather obviously operate in his interest, rather than against his interest. The district court based its decision on this basic logic, finding that "[p]rovided Bennally told the truth, his statements could not be used against him, and thus could not be used to subject him to criminal liability." criminal liability."

Then, the court found that,

without the specific statements at issue available, no evidence suggests the co-defendant would have known with any certainty that he would be inculpating himself and subjecting himself to prosecution. He offered the proffer as part of seeking a plea agreement with the prosecution, and all parties agree that, under the operative Kastigar letter, the co-defendant knew that his statements could not be used directly in any prosecution against him, as long as he told the truth. Jackson's challenge is meritless.

-CM

Bleacher Report: Court Of Appeals Of North Carolina Finds Subsequent Remedial Measure Evidence Was Properly Precluded

Like its federal counterpart, North Carolina Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if those issues are controverted, or impeachment.

So, let's say that a six year-old is injured when he falls through the bleachers at a high school. And let's say that the school board thereafter adds a riser plate to the bleachers. Evidence of this subsequent remedial measure will be inadmissible under Rule 407 according to the recent opinion of the Court of Appeals of North Carolina in Davis ex rel. Gholston v. Cumberland County Bd. of Educ., 2011 WL 6365163 (N.C.App. 2011).

In Davis ex rel. Gholston, Tyson Davis, who was six years old at the time, was severely and tragically injured when he fell through bleachers located on the premises of the Cumberland County Board of Education's Seventy–First High School. Betty Gholston, on her own behalf and as guardian for Tyson Davis, thereafter brought a negligence action against the Board, which moved for summary judgment. The trial court granted the Board's motion 

[b]ecause the Board presented evidence that it was not negligent—in that the bleachers complied with the North Carolina Building Code...and it had no notice of any prior problems with the bleachers—and because plaintiff presented no admissible evidence that a reasonable and prudent school board would have done anything different with respect to the bleachers....

Gholston therafter appealed, claiming, inter alia, that the trial court erred by precluding her from presenting evidence of the Board's response to an interrogatory question asking the Board to describe all actions "that were taken in response to the accident."  The Board objected that this interrogatory called for evidence of a subsequent remedial measure contrary to Rule 407, but nonetheless responded:

Without waiving said objection, for the bleachers in question, a 6″ x 1″ riser plate was added to 14 rows and a 6″ x 2″ footboard to 14 rows and the riser plate ran continuously across the steps. 180′ of 10″ riser plate was added at the back and additional railing behind the top was added for 42″ compliance. Fencing and stiffeners for the front walkway were added and approximately 30 feet of footboard was replaced.

The Court of Appeals of North Carolina agreed with the trial court's decision to exclude this response, finding that "[t]he Board's interrogatory answer falls squarely within Rule 407—plaintiff is relying upon the subsequent measures to prove the Board's negligence."

-CM

High Tension: Supreme Court Of Alabama Finds No Tension Between Hearsay Rule & Hearsay Statute

Like its federal counterpart, Alabama Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition....

Meanwhile, Alabama Code § 15-25-31 provides that

An out-of-court statement made by a child under 12 years of age at the time of the proceeding concerning an act that is a material element of any crime involving child physical offense, sexual offense, and exploitation, as defined in Section 15-25-39, which statement is not otherwise admissible in evidence, is admissible in evidence in criminal proceedings, if the requirements of Section 15-25-32 are met.

So, let's say that an alleged child victim of a sex crime makes a statement that does not qualify for admission under Rule 801(d)(1)(A) but does qualify for admission under § 15-25-31. Should the court admit it. According to the recent opinion of the Supreme Court of Alabama in M.L.H. v. State, 2011 WL 6004617 (Ala. 2011), the answer is "yes."

In M.L.H., 

M.L.H. was charged with first-degree sodomy...and first-degree sexual abuse...M.L.H. applied for and was granted youthful-offender status. At the bench trial, L.H., the child victim, testified. The State also presented testimony from L.H.'s mother; Dr. Allison Cunningham, a pediatrician who had examined L.H.; Sharon Whitfield, a forensic interviewer who had interviewed L.H.; Dr. Michael Taylor, another pediatrician who had examined L.H.; and Terry Osberry, a licensed professional counselor who had interviewed L.H. Each of those witnesses testified regarding prior out-of-court statements that L.H. had made to him or her that were inconsistent with L.H.'s trial testimony concerning how much M.L.H. had touched him.

L.H.'s prior inconsistent statements did not qualify for admission under Alabama Rule of Evidence 801(d)(1)(A) because they were not "given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition....: Nonetheless, the trial court deemed them admissible under Alabama Code § 15-25-31.

After he was convicted, M.L.H. appealed, claiming that the trial court erred in finding that § 15-25-31 could "override" Rule 801(d)(1)(A). The Court of Criminal Appeals of Alabama agreed, concluding that there is an "inherent tension" between  § 15-25-31 and Rule 801(d)(1)(A) and "that Rule 801(d)(1)(A), and not § 15-25-31, governs the admissibility of a child witness's prior inconsistent out-of-court statements." 

In response to the State's subsequent appeal, the Supreme Court of Alabama agreed with the trial court, correctly citing to Alabama Rule of Evidence 802, which provides that

Hearsay is not admissible except as provided by these rules, or by other rules adopted by the Supreme Court of Alabama or by statute.

In other words, statutes such as § 15-25-31 supplement the Alabama Rules of Evidence and can make evidence admissible that is otherwise inadmissible under the Rules. Thus, the court found no "inherent tension" between  § 15-25-31 and Rule 801(d)(1)(A) and concluded that the trial court properly admitted L.H.'s prior inconsistent statements under § 15-25-31.

-CM