EvidenceProf Blog

Where's My Subpoena?: SDNY Doesn't Quash Subpoena Seeking Impeachment Material

Federal Rule of Criminal Procedure 17(c)(1) provides that

A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

It is well established that

Rule 17(c) is "not intended to provide a means of discovery for criminal cases," and the scope of the rule is confined to "evidentiary" materials. See United States v. Nixon, 418 U.S. 683, 698-99...(1974).  Under Nixon, a party seeking the production of the documents must demonstrate that the materials are: (1) relevant; (2) admissible; (3) specifically identified; and (4) not otherwise procurable. United States v. Carollo, 2012 WL 1195194 (S.D.N.Y. 2012).

Therefore, in deciding whether to quash a subpoena, a court must deterime whether the materials sought will be admissible as evidence at trial, as was the case in Carollo.

In Carollo, the defendants were "charged with a conspiracy to commit fraud by manipulating municipal bond auctions."

Non-party Naeh is an unindicted coconspirator who is scheduled to testify. Between the period of late 2006, when Naeh was likely alerted to the government's investigation of his former employer, and early 2010, when Naeh pleaded guilty and entered into a cooperation agreement with the government, Naeh transferred money from the United States to banks in Switzerland. It is Naeh's bank statements, tax returns, and other documents that relate to these transfers that are the subject of the first subpoena, returnable at the start of trial when Naeh is scheduled to testify.

In deciding whether to quash this first subpoena, the United States District Court for the Southern District of New York thus had to determine whether this evidence might be admissible to impeach Naeh at trial. That court initially noted that if this evidence were being offered solely to impeach his general credibility as a witness, it would be inadmissible under Federal Rule of Evidence 608(b). That said, the court then found that

This is too narrow a view, however, of what these documents are or what they can provide in terms of Goldberg's defense. Goldberg will rely on the documents to show Naeh's activities and intentions during the period of his cooperation with the government in the investigation of the conspiracy to which Goldberg is alleged to be a part....This goes beyond simply demonstrating prior conduct in order to attack Naeh's character for truthfulness and may suggest bias or a motive on the part of Naeh to cooperate with the government on the conspiracy count in order to protect assets that arose out of that conspiracy, to protect himself from indictment here, or to otherwise guard against additional charges for other crimes.

-CM

I Guaranty It: Southern District Of California Finds Loan Documents To Be Self-Authenticating Under Rule 902(9)

Federal Rule of Evidence 902(9) provides that

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:...

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

The recent opinion of the United States District Court for the Southern District of California in Rancho Mountain Properties, Inc. v. Gray, 2012 WL 1192755 (S.D.Cal. 2012), provides one of the few examples that I have seen of a court applying Rule 902(9).

Gray arose

from a guaranty executed by Defendants Ray Gray and Linda Gray (husband and wife) to secure the purchase of real property located in Paciences, California, by Pfau, Pfau & Pfau, LLC (“Pfau”). On August 28, 2006, Pfau entered into a Loan Agreement with CMR Mortgage Fund II, LLC (“CMR II”) for the purpose of acquiring land and developing residential lots. The loan was secured by liens on real properties located in San Diego, Fresno, and San Benito Counties. Contemporaneously with the Loan Agreement, Pfau executed a Promissory Note, in the principal amount of $19,500,000, payable to CMR II. CMR II loaned $19,500,000 in principal to Pfau. Defendants made, executed, and delivered a General Guaranty and Indemnity Agreement (“Guaranty”) pursuant to which Defendants guaranteed “the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all of [Pfau's] indebtedness, obligations and liabilities to the Lender.” 

Pfau's and Defendants' obligations under the loan and related Guaranty were assigned by CMR II to ING USA Annuity and Life Insurance Company (“ING USA”), which assigned the obligations to Lion II Customs Investments, LLC (“Lion II”), which then assigned the obligations to Plaintiff. Starting on July 1, 2008, Pfau failed to make timely interest payments. CMR II paid Pfau's monthly payments through January 2009, but failed to make payments after that time. In addition, Pfau filed for relief under Chapter 11 in the United States Bankruptcy Court, Southern District of California, on December 16, 2008. Pfau's failure to timely make its scheduled interest payments as well as its filing for relief under Chapter 11 constituted a default on the loan documents.

Thereafter, on February 18, 2011, the Plaintiff initiated an action to recover amounts due under the Guaranty, as a result of Pfau's default. The Plaintiff thereafter filed for summary judgment based upon loan documents, including the Guaranty.

In response, the defendants first claimed that these documents were hearsay, but the court disagreed, concluding that the documents were

operative documents, or “verbal acts.” Operative documents include contracts, commercial paper, and negotiable instruments. They are not hearsay, and therefore need not fall under an exception to hearsay in order to be admitted into evidence.

The defendants also claimed that the documents were not properly authenticated, and the court again disagreed, finding that

the loan documents are self-authenticating documents under Federal Rule of Evidence 902(9)....Under Rule 902(9), extrinsic evidence of authenticity does not need to be provided for “[c]ommercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.” Under California Commercial Code Section 3308(a), “In an action with respect to an instrument, the authenticity of, and authority to make, each signature on the instrument is admitted unless specifically denied in the pleadings.” Moreover, “the signature is presumed to be authentic and authorized unless the action is to enforce the liability of the purported signer and the signer is dead or incompetent at the time of trial of the issue of validity of the signature." CAL. COM.CODE § 3308(a). Because the signer here is alive and competent, the loan documents are self-authenticating. Accordingly, the loan documents are admissible and may be properly considered by the Court.

-CM

Article Of Interest - A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, By Kevin Lapp & Joy Radice

In 2000, the federal DNA Analysis Backlog Elimination Act authorized for the first time compulsory extraction of DNA from federal offenders, covering those convicted of a “qualifying Federal offense” and who were still in custody or under post-conviction supervision. Federal law initially prohibited DNA profiles of arrestees from being placed in CODIS. In 2006, Congress significantly expanded DNA collection, authorizing the Attorney General to promulgate regulations for collecting DNA from individuals "arrested, facing charges, or convicted." The Department of Justice issued a final rule in 2008 that directs federal agencies to collect DNA samples from individuals who are arrested, facing charges, or convicted, regardless of the underlying charge or offense. Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, North Carolina Law Review Addendum, Vol. 90, p. 157 (2012).

In A Better Balancing, Lapp and Radice, Acting Assistant Professors of Lawyering at the New York University School of Law, take issue with this federal law in large part through deconstructing the analogy that courts have drawn between compulsory DNA collection and compulsory fingerprint collection. I thoroughly agree with their deconstruction and think that an analogy can be drawn between the progression from suspicionless, warrantless fingerprint collection to suspicionless, warrantless DNA collection and the progression from suspicionless, warrantless visual surveillance to suspicionless, warrantless GPS surveillance, a practice that was recently halted by the Supreme Court in United States v. Jones. In both cases, to say that we are dealing with an apples-to-apples comparison only makes sense if the the latter apple is the fruit of the poisonous tree.

In their artcle, Lapp and Radice note that

Supporters of compulsory DNA collection frequently begin their defense of the practice by analogizing DNA profiling to fingerprinting. According to the analogy, the uniqueness of the thirteen STR loci of the DNA profile is akin to the distinctive arches, loops, and whorls of fingerprints. The intentional selection of this so-called "junk DNA" for the DNA profile means that, like a fingerprint, a DNA profile provides "precise information about identity but little or no other personal information." Completing the analogy, DNA profiles are stored in a database, just like fingerprints, and are run against a database to search for matches to evidence from unsolved crimes, just like fingerprints.

The use of the fingerprint analogy goes back to the early promoters of DNA identification methods, who called the new technique “DNA fingerprinting” in an intentional attempt to “piggyback on the tremendous power that fingerprinting was known to have.” Their efforts to fix the metaphor have been successful. The DNA profiling-fingerprint analogy plays a prominent role in DNA case law. For example, in upholding DNA extraction from those convicted of nonviolent crimes and sentenced to only probation, the Second Circuit stated that "the governmental justification for this form of identification...relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs." In endorsing the analogy, the Third Circuit Mitchell majority concluded that "a DNA profile is used solely as an accurate, unique, identifying marker— in other words, as fingerprints for the twenty-first century."

The analogy of DNA profiling to fingerprinting allows courts to cite case law upholding the constitutionality of warrantless fingerprinting of arrestees for identification purposes as part of a routine booking process, as both the Mitchell majority and the vacated Pool panel did. Yet neither court mentioned that fingerprinting was considered routine long before Katz v. United States made "a reasonable expectation of privacy" the touchstone of the Fourth Amendment and before the "totality of the circumstances" test was announced in Illinois v. Gates. Rather, the pre-conviction DNA cases combine the unquestioned constitutionality of fingerprinting at booking with their depiction of DNA profiling as a twenty-first century fingerprint to conclude that the Fourth Amendment does not forbid warrantless pre-conviction DNA extraction at arrest.

Lapp and Radice declare this analogy a straw man by claiming that courts erroneously assert that the goals of fingerprinting and DNA profiling are the same: investigation. According to the authors, in upholding suspicionless, warrantless DNA profiling, "[c]ourts give great weight to the government’s interest in accurately establishing the accused’s identity and an arrestee’s diminished expectation of privacy in her identity that follows arrest and detention."

The authors disagree, first claiming, inter alia, that

this reduction of the privacy interest to only encompass identity...depends on an "uncommonly capacious definition of identification" that includes within it "what the person has done (whether the individual has a criminal record, whether he is the same person who committed an as-yet unsolved crime across town, etc.)."

Simply put, this definition conflates identification and investigation. It uses "identify" not in the sense of identifying the individual before the court, but in the sense of identifying the person who committed the crime. For example, the Mitchell majority highlights that "DNA may permit identification in cases without fingerprint or eyewitness evidence." But there is a difference between verifying the identity of an individual who says he is or is not O.J. Simpson, and identifying the person whose DNA was found at the murder scene of Nicole Brown and Ronald Goldman. The former is properly construed as identification, while the latter constitutes law enforcement investigation. In fact, DNA profiling can only confirm the identity of an arrestee if the arrestee’s DNA profile is already in CODIS as a known profile. Any match of an arrestee’s DNA profile to unknown crime scene DNA profiles does not identify the arrested individual. At the most, it provides evidence for an unrelated crime. Therefore, to the extent that DNA collection facilitates the determination of who did something— which is the vast extent of what DNA profiling is meant to do—it is beyond the normal, booking-related understanding of "identification."

Second, they argue that

Including the seizure of the DNA sample and its indefinite retention in the reasonableness analysis, rather than only considering the DNA profile, also breaks down the analogy to fingerprints. When the government takes a fingerprint of an arrestee, all the government gets is a fingerprint. It does not retain a biological sample that contains markers for traits including aggression, sexual orientation, and substance addiction. When the government takes a DNA sample, which contains the entire human genome, it has all of this data and can identify individuals related to the arrestee. Fingerprints, on the other hand, "only identify the person who left them."

Of course, these are just a few of the arguments raised by Lapp and Radice in their article, which I highly recommend to readers. The article led me to think about compulsory DNA collection in a different way and gave me hope that courts might have a similar reaction. And if the Supreme Court's recent decision in United States v. Jones is a bellwether, that might just be the case.

Jones dealt with the suspcionless, warrantless placement of a GPS device on a Jeep by officers so that they could track the movements of the defendant. For the last several years, the government defended this practice by claiming that a defendant can neither reasonably expect privacy in the publicly accessible exterior of his or her vehicle, nor in the location of his or her vehicle on public streets. In support of this position, the government argued that placing a GPS device of a car was no different than driving behind a suspect's vehicle and conducting visual surveillance or using a beeper to track a suspect, a practice that was upheld in both United States v. Karo, 468 U.S. 705 (1984), and United States v. Knotts, 460 U.S. 276 (1983).

Many courts agreed with the government, but there were some strident critics, such as the Supreme Court of Washington in State v. Jackson, 76 P.3d 217 (Wash. 2003), which found that a warrant was required for such GPS surveillance, noting, inter alia, that it perceived

a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses...[T]he intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life.

In Jones, the United States Supreme Court agreed with the Washington Supreme Court, with Justice Scalia's majority opinion deconstructing each of the analogies that the government tried to draw between suspicionless, warantless GPS surveillance and prior police practices. In Karo and Knotts, police planted the beepers before the defendants came into possession of the subject property being tracked, meaning that "Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, [wa]s on much different footing."

Moreover, the Court noted that

The Government also points to our exposition in New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), that "[t]he exterior of a car...is thrust into the public eye, and thus to examine it does not constitute a 'search.'"...That statement is of marginal relevance here since, as the Government acknowledges, "the officers in this case did more than conduct a visual inspection of respondent's vehicle."...By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer's momentary reaching into the interior of a vehicle did constitute a search.

Meanwhile, in his opinion concurring in the judgment, Justice Alito explicitly relied upon the Jackson rationale to reject the government's analogy to visual surveillance, finding that a

relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U.S., at 281–282, 103 S.Ct. 1081. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4–week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveil lance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

The point of all of the Justices in Jones seems to be the same: Suspicionless, warantless visual (or beeper) surveillenace and suspicionless, warantless GPS tracking is not an apples-to-apples comparison, unless the GPS apple is the fruit of the poisonous tree. And this is the case because the government undersold both the nature of its intrusion and the privacy interest of the suspect.

This is the exact same point made by Lapp and Radice in A Better Balancing, and that's why they argue for a better balancing of the interests of the government and individuals in deciding when DNA collection can be justified. The hope would be that courts see the Jones-parallel and take the authors upon their proposal.

I asked the authors what led them to write the article, and Lapp responded that

it was the result of two things coming together: curriculum development and scholarly interests. A year and a half ago, Joy and I were tasked with developing a brief writing/oral argument exercise for our first-year Lawyering students. Because we both share an interest in the collateral consequences of a person's contact with the criminal justice system, we became really excited about creating a problem for our students that required them to tackle the constitutionality of pre-conviction DNA collection.  We were frankly surprised that the federal law is so expansive (mandating collection from anyone arrested), and that the case law is so decidedly supportive of the practice.  We were particularly struck by how courts have incrementally permitted more expansive DNA collection - first from certain dangerous and violent convicted felons, then to all people with a conviction, and now to mere arrestees - each time promising that the next step was a tough one, but then failing to acknowledge the toughness or adjusting the balancing when they got there.

Mindful that DNA collection from arrestees is an issue that seems likely to reach the Supreme Court in the near future, we wanted to bring attention to this incremental expansion of DNA collection that has taken courts to places many of them insisted in earlier opinions that they were not going (or would see very differently if they got there).  We also feel that courts are miscalculating the privacy interest at stake, ignoring the weight that should be given to the initial seizure and indefinite retention of the DNA sample (whatever statutory protections are in place regarding use of the seized sample), focusing instead solely on the DNA profile, in their totality of the circumstances balancing test.  

-CM

Cruz Control?: Could The Bruton Doctrine Provide A Solution To The Problem Facing The Court In Williams v. Illinois?

In Bruton v. United States, 391 U.S. 123 (1968) and its progeny, the Supreme Court has held that the Confrontation Clause of the Sixth Amendment is violated by the admission at a joint jury trial of a co-defendant's confession that facially incriminates another defendant if the co-defendant does not testify at trial. So, for example, If Carl confesses to Police Officer Peters, "Dan and I robbed the bank," the prosecution could not call Peters to testify to this statement at the joint jury trial for Carl and Dan if Carl chose not to testify. The thinking of the Court in Bruton was two-fold: (1) Carl's confession is not admissible against Dan, and even if the judge instructed the jury only to use Carl's confession as evidence of Carl's guilt, there would be too strong of a likelihood that the jury would use the confession as evidence of Dan's guilt; and (2) the jury's likely use of Carl's confession as evidence of Dan's guilt would have a "devastating effect" on Dan's defense.

But what if Dan himself confessed to the crime? Wouldn't that mean that Dan devastated his own case and could not complain about the admission of Carl's confession? The Supreme Court answered this question in the negative in Cruz v. New York, 481 U.S. 186 (1987). According to the Court in Cruz, the admission of Carl's "interlocking" confession in this latter situation would be more devastating because

it seems to us that "interlocking" bears a positively inverse relationship to devastation. A codefendant's confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the defendant's alleged confession. It might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefendant's confession does no more than support the defendant's very own case. But in the real world of criminal litigation, the defendant is seeking to avoid his confession—on the ground that it was not accurately reported, or that it was not really true when made.

Of course, Bruton and Cruz are still good law today, and some, myself included, have argued that the Bruton line of cases involves a separate strain of Confrontation Clause analysis than do the Crawford line of cases. So far, the vast majority of courts have disagreed with me, and if they're right, could Bruton/Cruz provide a solution to the Supreme Court's pending decision in Williams v. Illinois and similar cases?

While riding on the El train last week, I read two fascinating articles back-to-back: 'Bull' Coming from the States: Why the Supreme Court Should Use Williams v. Illinois to Close One of Bullcoming’s Confrontation Clause Loopholes, a note by Tara R. Price, a law student at the Florida State University College of Law, and She Blinded Me with Science: Wrongful Convictions and the 'Reverse CSI-Effect', 17 Tex. Wesleyan L. Rev. 481 (2011), by Mark Godsey, a professor at the University of Cincinnati College of Law, and Marie Alou, an Ohio Innocence Project fellow. 

The topic of Price's piece is the Supreme Court's forthcoming opinion Williams v. Illinois, which I discussed in a prior post:

The new Confrontation Clause case is Williams v. Illinois (10-8505).  In that case, the Illinois Supreme Court ruled that prosecutors could introduce a forensic analyst’s report on a DNA test of evidence by offering it through the on-stand testimony of an expert witness, when the lab analyst was not available to testify.  The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done.  The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the lab report was being admitted not for its truth, but only to explain the expert’s opinion about the results.

That was quite similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in the Bullcoming case.  In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible.  Sotomayor sought to show that the decision was a narrow one, and listed several factual scenarios that she said were not covered.  One of them was a situation in which "an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence."   The Court apparently granted the Williams case on Tuesday to judge that very situation. 

The fundamental question in Williams, then, is whether a second analyst can rely upon a nontestifying first analyst's report for her testimony pursuant to Federal Rule of Evidence 703 and state counterparts even though the underlying report could not be admitted consistent with the Confrontation Clause to prove the truth of the matter asserted unless the first analyst testified. In People v. Williams, 939 N.E.2d 268 (Ill. 2010), the Supreme Court of Illinois answered this question in the affirmative, finding as follows:

The defendant argues that the State introduced the Cellmark report to establish the truth of the matter asserted and it is therefore hearsay. Without Cellmark's report, according to the defendant, Lambatos could not have given her testimony that the defendant's DNA matched the profile deduced by Cellmark. The State counters that Lambatos testified about the Cellmark tests only to explain how she formed her own opinion. Therefore, the only statement that the prosecution offered for the truth of the matter asserted was Lambatos' own opinion. According to the State, presentation of the person who prepared the DNA profile at Cellmark was not necessary for confrontation purposes. We agree with the State.

I have disagreed with this type of conclusion before (see, e.g, here), and Price disagrees with it her piece, arguing, inter alia, that

While it is true that it is Lambatos’s expert opinion that is at issue, so too is the authenticity and accuracy of the evidence upon which she based her opinion. Williams should have had not only the opportunity through cross-examination to test the credibility and reliability of the expert, but also the authenticity and reliability of the scientific evidence upon which she based her opinion. Williams could not have this opportunity without the ability to cross-examine the Cellmark analyst who certified the test results.

That takes me to the Thomas Dolby-inspired piece by Godsey and Alou. Most people in the legal field have heard of and accept to at least a certain degree the so-called CSI-effect. Under the CSI-effect, jurors who have watched shows such as CSI come to expect the prosecution to put on a dog and pony show replete with forensic science and high tech evidence that conclusively proves the defendant's guilt. When those pyrotechnics aren't present, jurors are more inclined to acquit than they were in the days before CBS head honcho Les Moonves made the last second decision to move forward with Anthony Zuiker's show rather than yet another Tony Danza vehicle.

In their article, however, Godsey and Alou posit that there is a reverse-CSI effect. In other words, when prosecutors do present forensic science evidence, jurors who have been taught by shows like CSI that such evidence is infallible place too much stock in such evidence and too readily convict despite significant evidence about the problems with such expert evidence.

So, let's revisit Williams v. Illinois through a Bruton/Cruz prism. Bruton first holds that the co-defendant's (Carl's) confession is inadmissible because jurors would use it as evidence of the defendant's (Dan's) guilt, even if given a jury instruction to the contrary. In a case like Williams, the second analyst testifies and references the findings of the first analyst. What's the likelihood that jurors will abstain from using the first analyst's findings to prove the truth of the matter asserted (that the defendant is a DNA "match"), even if given a jury instruction? My guess would be that the answer is "not very likely." Indeed, it is arguable that the answer is "impossible." In a prior post, I cited Julie Seaman, Triangulating Testimonial Hearsay: The Constitutional Boundaries of Expert Opinion Testimony, 96 Geo. L.J. 827 (2008), for the proposition that

In the post-Crawford cases that rely on this non-hearsay rationale to permit expert witnesses to repeat testimonial statements at trial, courts reason that the statements are offered not for their truth, but only "to show the bases of [the expert's] opinions." Such reasoning is widespread. Of the more than one hundred cases applying Crawford to expert reliance on testimonial hearsay, over thirty rely on this particular non-hearsay rationale to hold that there is no constitutional violation. However, as discussed above, it is not logically possible for a jury to use the hearsay statements to assess the weight of the expert's opinion other than by considering their truth. Unless the jury is thought to evaluate the expert's opinion simply based on the quantity of facts or data on which it relies, or perhaps on the type of data relied upon, it cannot but consider the substance of the hearsay statements that form the basis of the opinion. After all, should the jury find that the hearsay statements are false, it is difficult to imagine how the statements might support the expert's opinion; only if they are true can they reasonably be said to offer any weight to the opinion. (emphasis added). 

If you agree with Professor Seaman, the situation is actually much worse in a case like Williams than in a case like Bruton because jury misuse of the subject statement is not merely a strong probability; it is an inevitability. And secondly, as Price notes in her piece, a defendant in a case like Williams, like a defendant in a case like Bruton, is unable to cross-examine the person who made the subject statement. Indeed, in a case like Williams, the first analyst isn't even in he courtroom at trial, unlike the co-defendant in a Bruton doctrine case.

Third, Bruton was based upon the devastating practical effect that admission of the co-defendant's (Carl's) confession would have on the defendant's (Dan's defense). In a case like Williams, you could see the prosecution claiming that the jury's potential use of the first analyst's findings would not be "devastating" because they still have the second analyst reaching the same conclusions. But even barring the issue of whether the second analyst's conclusions would be truly "independent" of the first analyst's findings, that still leaves Cruz.

And my argument would be the the two analysts' "interlocking" conclusions would be analogous to the "interlocking" conclusions in Cruz. Sure, it is devastating if one analyst says the defendant is a DNA match, but the defendant can always challenge the analyst's credentials, claim that there was an error, etc. But when jurors hear that two separate analysts both found that the defendant is a DNA match and the defendant can cross-examine the first analyst, the defendant's case is truly devastated and he bears little to no chance of prevailing. And if Godsey and Alou are correct about the reverse-CSI effect, could we really conclude that such "interlocking" conclusions are any less devastating than "interlocking" confessions in a case like Cruz?

-CM

Make Me Whole, Take 7: Court Of Appeals Of MN Finds No Problem W/Impeachment Through 2 Assault Convictions In Assault Case

Following up on yesterday's post about the admissibility of prior conivctions for sex crimes for impeachment purposes, I give you another in a long line of ridiculous impeachment cases from the great state of Minnesota: State v. Gardner, 2012 WL 1149325 (Minn.App. 2012)

In Gardner, Pierre Garnder was charged with 2nd and 3rd degree assault. At trial, Gardner testified in is own defense, and the trial court allowed the prosecution to impeach him with evidence of (1) a 2008 conviction for felony domestic assault by strangulation; and (2) a 2008 conviction for felony fifth-degree assault.

After he was convicted, Gardner appealed, claiming, inter alia, tha the trial court erred by deeming evidence of the convictions admissible under Minnesota Rule of Evidence 609(a), which provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

I've written about the test that Minnesota applies under Rule of Evidence 609(a) on six previous occasions (here, here, here, here, here, and here) and promised to continue writing about it until Minnesota abandons it. Like most jurisdictions, Minnesota applies a 5 factor test  for determining the admissibility of convictions under Rule 609(a) that balances

(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue. 

The devil, though, is in the details. Under the first factor, a court in any other state would actually consider how much bearing Gardner's two prior convictions had on his (dis)honesty as a witness. And a court in any other state would find that because these two prior convictions were for crimes of violence, they have little bearing on witness credibility, making the first factor favor exclusion. Minnesota courts, however, apply a "whole person" test under which any prior conviction is always viewed as having enough "impeachment" value to pass this first factor because it allows the jury sees the witness' "whole person" and thus better assess his credibility.

In a prior post, I noted how a judge on the Court of Appeals challenged this "whole person" test in a prior case. In Gardner, the court rolled over and played dead, finding that despite criticisms of he test, it was created by the Supreme Court of Minnesota and that "[i]t is not this court's role to review supreme court decisions."

The court then correctly found that the second factor favored admission because the other convictions were relatively recent and that the third factor cut against admission because of the likelihood that the jury would (mis)use the prior convictions to conclude, "Once an assailant, always an assailant" (or, really, "Twice and assailant, always an assailant.")

That then took the court to the fourth and fifth factors, which it bungled once again. According to the court, under the fourth factor,

If a defendant's version of the relevant events is important to the jury's verdict, the importance of the defendant's testimony weighs in favor of excluding the impeachment evidence if, "by admitting it, appellant's account of events would not be heard by the jury."

But, according to the court, If "the defendant's credibility would have been the main issue for the jury to consider, this would weigh in favor of admitting the impeachment evidence," making both the fourth and fifth factors favor admission. Nope. That's not even close to correct.

Instead, these factors are supposed to counterbalance in most cases. See, e.g., United States v. Brewer, 451 F.Supp. 50, 54 (E.D.Tenn. 1978). If the defendant's testimony is very important the fourth factor cuts against admissibility of the defendant's prior conviction because the defendant might choose not to testify in the event that the prosecution could impeach him. But because his testimony is important, his credibility is also a central issue, meaning that the fifth factor favors admission. Thus, the 2 factors should counterbalance. It makes logical sense. But under Minnesota law, when a defendant's credibility is the main issue (which is almost always the case), factors four and five automatically favor admission.

Hopefully, you see the problem. In a criminal case in Minnesota, factor one will always favor admission of a defendant's prior convictions while factors four and five will almost always favor admission. That's usually three automatic strikes against the defendant in a five factor test. He can't win, and Gardner didn't win, with the Court of Appeals of Minnesota rejecting his appeal. That's right, according to the court, the probative value of his two prior assault convictions for proving his propensity to lie outweighed the danger that the jury would misuse the convictions to prove, "Once, twice, three times, an assailant." When will Minnesota courts end the insanity?

-CM

Julia Rickert's Denying Defendants the Benefit of the Doubt & an Argument for Empiricism in Rule 609 Impeachment

Late one cold night in Chicago, a homeless man came upon an unlocked car parked on the street. He decided he would sleep in it. Early the following morning, he awoke just as a police cruiser pulled parallel to the car. He was arrested and later charged with burglary. Because of his criminal history, the man faced six to thirty years if convicted. The prosecutor offered him eight years in exchange for a guilty plea.

The crime of burglary, a Class 2 felony in Illinois, is committed when one "knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft." The requisite intent to commit a felony or theft can be inferred from the bare circumstance of having entered without authority. This inference can of course be rebutted.

In this case, the defendant had not disturbed any of the valuables in the car. The police had been called by the car’s owner, who reported the presence of someone in his vehicle, but did not specify whether the person was awake or asleep. The police report did not comment on whether the homeless man appeared to have just awoken, but it did indicate that sunglasses were found in the homeless man’s pocket. The vehicle owner told the police that the sunglasses looked familiar and may have been left in his car by a friend. The trespasser, however, claimed the sunglasses were his own. What no one disputed was that the car contained items of value that had not been disturbed, such as a cellular phone, a stereo, and compact discs.

If this defendant is charged with burglary and wants to argue that he is only guilty of trespass, how is he going to rebut the inference of intent? The obvious answer is "by testifying." But what if the defendant has two prior convictions for criminal sexual assault. Would evidence of these convictions be admissible in the event that the defendant testifies, in effect putting him between a rock (not testifying) and a hard place (testifying and having the jury hear about his prior convictions)? This is the question addressed by Julia Rickert, currently a clerk for the United States Court of Appeals for the Seventh Circuit, in her article, Denying Defendants the Benefit of the Doubt: Federal Rule of Evidence 609 and Past Sex Crime Convictions, 100 J. Crim. L. & Criminology 213 (2010).

The hypothetical that led this post is the hypothetical that led Rickert's article, and it is taken from a real case that she observed while a summer clerk for the Cook County Public Defender. The difficulty for a court in deciding whether to admit the defendant's prior convictions in the event that he testifies is that it must balance probative vale against prejudicial effect under Federal Rule of Evidence 609 (or, in the hypothetical, Illinois Rule of Evidence 609).

The probative value of the convictions consists of how much those convictions tell us about the likelihood that the defendant will perjure himself on the witness stand. If they tell us a good deal (as with most property crimes), they are highly probative. If they don't tell us much (as with most crimes of violence), they are minimally probative. Meanwhile, the potential prejudicial effect twofold: (1) We don't want the jury to use the prior convictions to conclude, "Once a sexual predator, always, a sexual predator" or, more generally, "Once a criminal, always a criminal; and (2) We don't want the jury to think that even if there is insufficient evidence to prove burglary, it wouldn't be a big deal to convict the defendant of the crime because it is not the worst thing in the world to take a two time sex offender off the streets for an extended period of time. By looking at the hypothetical above, you get a good sense of the general arguments that Rickert makes on both sides of the issue, and I would certainly recommend that you read her terrific piece for a full explication of these issues. 

In this post, though, I want to focus on one statistic I that Rickert cites that I had seen before but which I had never realized has relevance to Rule 609. According to Rickert,

studies show that those who are convicted of sex offenses are significantly less likely to commit non-sex crimes than are other types of criminals.[FN61] Does this mean that sex offenders are less likely to commit the crime of perjury than are defendants previously convicted of non-sex crimes? Perhaps not, but in any event, I have encountered no argument that past sex crimes are especially probative of a witness’s propensity to lie on the stand.

[FN61] "Sex offenders were less likely than non-sex offenders to be rearrested for any offense—43 percent of sex offenders versus 68 percent of non-sex offenders." BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, available at http://www.ojp.usdoj.gov/bjs/crimoff.htm#recidivism (last visited Oct. 26, 2009). This statistic should not be read as suggesting that sex offenders don’t have a tendency to commit future sex offenses: "Sex offenders were about four times more likely than non-sex offenders to be arrested for another sex crime after their discharge from prison—5.3 percent of sex offenders versus 1.3 percent of non-sex offenders." Id. Furthermore, "Within 3 years of release, 2.5% of released rapists were rearrested for another rape," while only "1.2% of those who had served time for homicide were arrested for a new homicide." Id.

In other words, while statistics can only tell us so much, the above statistics strongly imply that convicted sex offenders are much less likely than most other witnesses with past convictions to perjure themselves on the witness stand. And I think this makes intuitive sense. A person who commits a sexual offense is a sexual deviant, and there is little reason to believe that this sexual deviancy would lead the person to commit perjury. It is this deviancy and not (necessarily) a disregard for society's laws that leads to the crime. Conversely, someone who commits larceny, drug offenses, or even a violent crime such as battery shows a certain disregard for obeying society's laws and thus has a higher likelihood of committing perjury than the sex offender. Therefore, there is a decent argument that convictions for sexual crimes should be the least probative convictions under Rule 609, rendering them rarely admissible.

That's the smaller point, and the more general point is that perhaps courts should start engaging in a more empirical analysis of what types of prior convictions predict perjury. My sense from reading gobs of Rule 609 cases is that judges shoot from the hip in deciding, say, that a larceny conviction has decent bearing on witness honesty and that an assault conviction does not. But what do the statistics actually show? If we looked at all defendants convicted of perjury in the past decade, what percentage of these defendants would have larceny convictions? What percentage would have assault convictions? And what percentage would have convictions for sexual crimes? I'm not sure that a court, litigant, or scholar has ever done such an analysis, but it is sure something that could increase the efficacy of Rule 609.

-CM

Withdrawal Symptoms: Court Of Appeals Of Missouri Finds Statements Related To Withdrawn Guilty Plea Inadmissible

Missouri Supreme Court Rule 24.02(d)(5) states that

Except as otherwise provided in this Rule 24.02(d)5, evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or of any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, or an offer to plead guilty to the crime charged or any other crime is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

Rule 24.02(d)(5) thus makes explicit what Federal Rule of Evidence 410(1) does not: that statements made in connection with a withdrawn guilty plea are inadmissible. As an example, let's look at the recent opinion of the Missouri Court of Appeals, Southern District, Division Two, in State v. Thieman, 353 S.W.3d 384 (Mo.App. S.D. 2011).

In Thieman, Robert Thieman was charged with assault in the first degree, armed criminal action, and unlawful use of a weapon. These charges stemmed from Thieman shooting a .22 rifle at the victim's vehicle.

Initially, [Thieman] pled guilty to the crimes charged and a sentencing assessment report ("SAR") was prepared by [the prosecutor] in conjunction with the preparation of that plea. [The prosecutor] interviewed [Thieman] at that time. Thereafter, [Thieman]'s plea agreement was rejected by the plea court and [Thieman] was allowed to withdraw his guilty plea. He then entered a plea of not guilty and th[e] matter proceeded to trial.

At trial, the prosecutor was called to the witness stand and testified, inter alia, that while she was interviewing Thieman for the SAR, he told her that he consumed between six and twelve beers soon before discharging his .22 rifle.

Thieman was eventually convicted and filed a motion for a new trial, but that motion did not argue that the prosecutor's testimony was wrongfully admitted. After the trial court denied his motion, Thieman appealed, claiming, inter alia, that the trial court committed plain error by refusing to award him a new trial despite the erroneous admission of the prosecutor's testimony based upon Missouri Supreme Court Rule 24.02(d)(5).

The Court of Appeals agreed that the trial court committed error because "'Rule 24.02(d)(5) precludes [the] use at trial of statements made by a defendant during a plea if that plea was withdrawn, for the plea has thereby been rendered involuntary and inadmissible as evidence of guilt.'" (That said, the court found that the error was not "plain" because it was not "outcome determinative").

Obviously, this result makes sense given the language of Rule 24.02(d)(5), but it also would make sense under Federal Rule of Evidence 410(1). Even though this latter Rule only deems inadmissible evidence of a withdrawn guilty plea, courts have also found that it covers statements related to a withdrawn guilty plea, as I have previously noted.

-CM