EvidenceProf Blog

The Good Wife, The Alford Plea, The Jewish Ban On Confessions, & The Times Of Emergency Necessity Exception

I finally caught up with last week's episode of "The Good Wife," "Pants on Fire." In it,

Alicia and Diane represent one of a trio of girls who was convicted of murder at a summer camp five years ago. Recently, however, it was discovered that the crime lab mishandled the DNA evidence and a judge has overturned their sentence pending a new trial. Not wanting to face a wrongful conviction lawsuit, the state has offered the girls an Alford plea – they can go free, but only if they all sign a statement admitting that they were guilty of committing murder. 

The episode itself didn't do a great job of explaining the Alford plea, but CBS has a nice feature on its website, Cary's Corner, which often does a good job of breaking down the legal jargon of the show. That was certainly the case this week, with Cary's Corner explaining that "[a]n Alford plea is an unusual plea in which a defendant does not admit guilt while at the same time admitting that the prosecution could likely secure a conviction based upon the evidence they’ve compiled." The site then goes on to explain that

The Alford plea is named after Henry Alford, who, in 1963, was tried for first-degree murder in North Carolina, where at the time a guilty verdict for first-degree murder meant Alford would face capital punishment. The prosecutors had witness evidence that Alford had argued with the victim on the night of the murder. He left the victim’s house to return to his own residence to grab his gun. Later there was a knock at the victim’s door, and when he answered it, he was fatally shot by an assailant using Alford’s gun. Personally, I believe that Alford’s gun was sitting right next to Occam’s razor on the shelf, but Alford insisted he was innocent. However, fearing an automatic death sentence, he pled guilty to a lesser charge of second-degree murder. Alford later appealed, arguing that he was forced into the guilty plea because he was afraid of the possibility of receiving a death sentence. His appeal eventually went before the Fourth Circuit Court of Appeals, which ruled that Alford’s plea was not voluntary since it was made under fear of the death penalty. 

The case made its way to the Supreme Court in 1970, where the highest court in the land decided that even if Alford could show that he only entered the guilty plea in order to receive a lesser sentence, the plea would not be invalid, since evidence existed that could support his conviction. Therefore, Alford’s guilty plea was allowable while Alford still maintained his innocence.

Alford pleas are not popular with federal prosecutors. In fact, the U.S. Attorneys’ Manual states that in federal cases, Alford pleas should be avoided “except in the most unusual circumstances.” Alford pleas are more common in local and state courts, however, because of the volume and nature of crimes prosecuted. 

An Alford plea, by its nature, acknowledges the plea bargain system and a defendant’s interest in minimizing potential loss. Over 95% of criminal and civil cases never reach trial; instead, they are settled through attorney negotiation. The Alford plea recognizes this reality and allows a defendant to maintain innocence while, without lying, still making the most advantageous plea bargain possible. For this reason, the Alford plea is also sometimes known as a “best interests” plea.

All of this leads me to an interesting article that I recently read, Compelled to Render Oneself Evil: American Plea-Bargaining from a Jewish Law Perspective, by Melissa Softness, a student at the Emory University School of Law.

In the article, Softness notes that 

The Talmud, Judaism’s main source of Rabbinic law, states unequivocally that “No man may render him self an evil person.” Rather than a rule applied only to individual conduct, Mishnaic texts indicate that the concept was wholly embraced by the criminal justice system of the Talmudic era. The state was not only forbidden to compel a man to testify against himself, but if he did so of his own accord, the testimony was rejected completely and had no status in a court of law.

Softness then points out that "[t]he law against self-incrimination derives from several sources in Jewish texts." Indeed, this has been recognized by the Supreme Court. In Miranda v. Arizona, the Court noted that the roots of the privilege against self-incrimination go back to ancient times:

Thirteenth century commentators found an analogue to the privilege grounded in the Bible. ‘To sum up the matter, the principle that no man is to be declared guilty on his own admission is a divine decree.’ Maimonides, Mishneh Torah (Code of Jewish Law), Book of Judges, Laws of the Sanhedrin, c. 18, 6, III Yale Judaica Series 52—53. See also Lamm, The Fifth Amendment and Its Equivalent in the Halakhan, 5 Judaism 53 (Winter 1956).

And then, the following year, in Garrity v. New Jersey, the Court found that confessions by police officers given the choice of incriminating themselves or forfeiting their jobs were "infected by...coercion[FN5]

[FN5] Cf. Lamm, The 5th Amendment and Its Equivalent in Jewish Law, 17 Decalogue Jour. 1 (Jan.—Feb.1967):‘It should be pointed out, at the very outset, that the Halakhah does not distinguish between voluntary and forced confessions, for reasons which will be discussed later. And it is here that one of the basic differences between Constitutional and Talmudic Law arises. According to the Constitution, a man cannot be compelled to testify against himself. The provision against self-incrimination is a privilege of which a citizen may or may not avail himself, as he wishes. The Halakhah, however, does not permit self-incriminating testimony. It is inadmissible, even if voluntarily offered. Confession, in other than a religious context, or financial cases completely free from any traces of criminality, is simply not an instrument of the Law. The issue, then, is not compulsion, but the whole idea of legal confession.‘The Halakhah, then, is obviously concerned with protecting the confessant from his own aberrations which manifest themselves, either as completely fabricated confessions, or as exaggerations of the real facts. * * * While certainly not all, or even most criminal confessions are directly attributable, in whole or part, to the Death Instinct, the Halakhah is sufficiently concerned with the minority of instances, where such is the case, to disqualify all criminal confessions and to discard confession as a legal instrument. Its function is to ensure the total victory of the Life Instinct over its omnipresent antagonist. Such are the conclusions to be drawn from Maimonides' interpretation of the Halakhah's equivalent of the Fifth Amendment.‘In summary, therefore, the Constitutional ruling on self-incrimination concerns only forced confessions, and its restricted character is a result of its historical evolution as a civilized protest against the use of torture in extorting confessions. The Halakhic ruling, however, is much broader and discards confessions in toto, and this because of its psychological insight and its concern for saving man from his own destructive inclinations.’ Id., at 10, 12."

This quotation gets to Softness' point, which is that the United States criminal justice system permits "voluntary" confessions while Jewish law has a blanket ban on all confessions, which are not accorded any probative value at all. Softness argues that the U.S. criminal justice should adopt the blanket ban on confessions, including guilty pleas, and thus abandon the plea bargaining process.

Of course, Softness then recognizes that such a shift is unlikely and likely not feasible given the statistic cited above that 95% of criminal cases are resolved by guilt plea. As an alternative, then, she maintains that the plea bargaining system could be maintained because of the necessity exception:

The main exception in the Talmudic courts was necessity. Judges were permitted to suspend the prohibition on self-incrimination, along with other procedural safeguards, in three situations: times of emergency, substantial threat to the community, or widespread disregard of the law. The overflow of criminal cases in the United States may be seen as constituting the “widespread disregard of the law” that the Talmudic exception was granted to alleviate. However, Maimonides noted that such exception was only permissible if used temporarily, meaning it could not be codified in law as it has been in the United States.

All of this is pretty interesting, and it has made me reconsider the much maligned Alford plea. In some ways, the Alford plea represents the very worst of the American criminal justice system. Just look at the Alford case itself. In Alford, the defendant claimed that he pleaded guilty only to avoid the death penalty, but the Court found that the plea was still "voluntary." An Alford plea is a oxymoronic in that the defendant is pleading guilty to very crime that he is claiming that he did not commit. And such a plea doesn't provide closure to the friends and family of the victim, who want accountability, apology, and closure, none of which the Alford plea provides.

That said, isn't the contradiction of the Alford plea absolutely appropriate considering the current state of the American criminal justice system? Previously, I've written about how,

[i]n 2007, indigent defendants in three Michigan counties sued the state, claiming ―that the public defender systems in their counties are so bad that poor people are pleading guilty because, for all practical purposes, they are given no other choice. Specifically, they alleged that ―cash-strapped public defenders [we]re violating the constitutional rights of defendants by allegedly too eagerly encouraging plea bargains, as opposed to vigorously fighting the charges.

These criticisms have also come from public defenders themselves. The following year, ― in November 2008, public defenders' offices from seven states either refused to take on new cases or sued to limit them, citing overwhelming workloads that prevented defendants from receiving adequate attention, time, and representation. According to these offices, the majority of a public defender‘s workload has turned into the processing of guilty pleas, leading them to claim ―that the hurried pace of their representation was less justice and more McJustice, as their representation essentially formed plea bargain assembly line[s].

In her article, Softness focuses on the "widespread disregard of law" necessity exception to the prohibition on self-incrimination, and I believe that a good argument can be made that the current public defender crisis triggers the "times of emergency" necessity exception. Prosecutors are told to avoid Alford plea and a number of states ban them. But given the realities of the current American justice system, maybe we should embrace them. The public defender system is in a state of emergency, and it means that the bulk of defendants charged with crimes cannot present a reasonable defense.

The Talmud states that "No man may render him self an evil person," but an Alford plea doesn't render a man an "evil person;" it merely renders him a "guilty person." And, if we think about it, it doesn't even do that. The defendant's Alford plea isn't accorded probative value; instead, it acknowledges the probative value of the prosecution's evidence and allows for a conviction based upon that evidence. Obviously, there are a plethora of reasons to be uncomfortable with the Alford plea, but there are also a plethora of reasons to be uncomfortable with the current state of criminal defense. And maybe a proliferation of Alford pleas will force us to confront that reality.

-CM

Friend Request: New Articles By Aviva Orenstein & Caren Morrison Address Issues Related To Authenticating Social Networking Evidence

Hundreds of millions of people world-wide use social media. Wikipedia, which is itself a form of social media, describes social media as follows: “Social media includes web-based and mobile technologies used to turn communication into interactive dialogue.” Of particular interest in evidence law are social networking sites that provide online platforms for people to interact. Users adopt a screen name and establish an on-line identity, forming links with friends they know in the real world or strangers who share similar interests. Users can create and edit written content, post photographs, join affiliational groups, post on the page of friends, and engage in one-on-one electronic conversations, all in real time with a timestamp. The content can be original or can be replicated from other sources. Aviva Orenstein, Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords (fortcoming).

Professor Orenstein's article, which I discussed a bit yesterday, is one of two recent pieces I have read on the authentication of evidence from social networking sites, with the other being Professor Caren Morrison's Passwords, Profiles, and the Privilege Against Self-Incrimination: Facebook and the Fifth Amendment (forthcoming). Like their prior works (here and here), both of these works are trenchant and timely, and, as this post will demonstrate, interact in interesting ways.

Let's start with Morrison's piece first. In her article, Morrison addresses the Fifth Amendment implications of forcing citizens to disclose private social networking information. As an example, consider Griffin v. State, 2010 WL 2105801 (Md.App. 2010), the (in)fanmous "SNITCHES GET STITCHES" case that Morrison discusses in her article (and which I have addressed on this blog). In that case, the threat, "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" was on the MySpace profile page of the defendant's girlfriend (Ms. Barber), and an intermediate appellate court in Maryland found that the prosecution properly authenticated this threat as one made by the girlfriend through this fact and other circumstantial evidence.

On appeal, however, the Court of Appeals of Maryland disagreed, finding

that the trial judge abused his discretion in admitting the MySpace evidence pursuant to Rule 5-901(b)(4), because the picture of Ms. Barber, coupled with her birth date and location, were not sufficient "distinctive characteristics" on a MySpace profile to authenticate its printout, given the prospect that someone other than Ms. Barber could have not only created the site, but also posted the "snitches get stitches" comment. The potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user leads to our conclusion that a printout of an image from such a site requires a greater degree of authentication than merely identifying the date of birth of the creator and her visage in a photograph on the site in order to reflect that Ms. Barber was its creator and the author of the "snitches get stitches" language.

So, what's the government to do if it wants to authenticate social networking evidence? One answer is to order the citizen to furnish social networking information (e.g., passwords, metadata, etc.) via subpoena. But as Morrison notes, if this compelled act of production is "testimonial," it is protected by the Fifth Amendment, rendering the data (and metadata) inadmissible.

Morrison then claims that there is a good argument that the compelled disclosure of social networking data is "testimonial":

An individual who is compelled to give law enforcement access to her Facebook page is forced to engage in cognition for the benefit of the state and to turn over the results of that mental process. In addition, she does implicitly relate the factual assertions, “I do have a Facebook page” and “Here is how to access that Facebook page.” Given the fact that most of the controversies surrounding the use of social media evidence at trial have to do with authentication (in other words, is the Facebook profile of “Frederick Walters” really Walters’ Facebook page, or the page of someone posing as Frederick Walters?), these admissions are of considerable value to law enforcement.

Further, such a subpoena places the suspect in the “cruel trilemma,” the traditional touchstone for whether something is testimonial—forcing the suspect to a choice between incriminating truth, a lie, or contempt of court. Since disclosure of Facebook access information would place a suspect squarely in the position of disclosing the information (thereby leading the government to her Facebook page), denying that she has a Facebook page, or refusing to answer, the act of providing the access information to the government would also be testimonial under this standard.

Finally, some contend that the response to a government demand for a person’s password would be inherently testimonial because the demand calls for “specific testimony asserting a fact.”

Moreover, Morrison adds that

the response to a subpoena for Facebook access information may be not only testimonial, but also protected by the Act of Production doctrine. An individual who is compelled to give law enforcement his Facebook password, his user name, or the email address with which he set up the account, implicitly indicates his belief that his Facebook page is the one meant by the government, and that he has control over the page. This situation, then, seems to fall squarely within the act of production doctrine, which bars the government from using evidence of the defendant’s compliance with the subpoena to authenticate the substantive information contained on the Facebook page.

Morrison does acknowledge that the government can grant immunity to the citizen's act of production but then notes that, under such a grant of immunity

the government is barred from making "direct or indirect" use of the implied assertions that the [social networking] account exists, that it is authentic, and that it belongs to the suspect. If the government pursues the case, it must prove that any subsequent evidence that it wants to use “is derived from a legitimate source wholly independent of the compelled testimony."

You might think that this Fifth Amendment analysis leaves citizens secure in their right to privacy, by Morrison argues that "[i]f it cannot obtain the information by subpoena, the government might be spurred to greater intrusions in its attempt to obtain equivalent evidence through surveillance and searches."

So, might citizens be better off, then, with courts more readily finding social networking evidence more readily authenticated? This is where Orenstein's article come into play. Like Morrison, Orenstein notes the current difficulties parties have in authenticating social networking evidence. And the culmination of her piece is to propose a process whereby parties can create a rebuttable presumption of authenticity of social media accounts if they follow three steps:

1. Lay a foundation for the provenance of the print-out of the social media page in question.

a. The witness must describe where on the Internet the page was located and how the witness downloaded it.

b. The relevant page should be printed out with its URL visible.

c. The witness should also be prepared to testify that the printout reflects accurately what the witness saw on the webpage.

d. Some evidence should be offered as to who has access to the page and

2. Establish ownership of the page. This can be accomplished by stipulation, testimony of a person with knowledge (ideally, but not necessarily, the page-owner), an affidavit from the service provider about to whom the page is registered, or circumstantial evidence. In appropriate circumstances, particularly where the name, birthdate, zip code, photo, and other identifying characteristics of the page owner are visible on the page, ownership can be established by such distinctive criteria along with content-based evidence. Allowing authentication based on the page information alone is particularly appropriate where evidence is abundant from the style and content of the page that the page owner regularly used it. It would be an expensive and unnecessary impediment to litigation if courts routinely required affidavits from service providers.

3. Demonstrate that the page owner actually wrote the post in question. This can best be accomplished by stipulation or questioning the page-owner or post-writer. It can also sometimes be established by examining the hard drive of the page-owners computer, but again, that is expensive and incomplete, because Facebook pages and their ilk can be accessed from many different devises anywhere there is an internet connection. Even if the owner of the page denies having written the post, circumstantial evidence such as the content of the post can provide sufficient distinctive characteristics for authentication and identification of the author. Where the page-owner acknowledges ownership of the page but claims hacking or other usurpation, evidence that the posting remained up while the page was in the owner’s control would persuasively rebut claims of hacking etc.

This takes me back to the point that I was making yesterday, which is Orenstein's point as well: We don't need to blow up the rules of evidence, including the rules of authentication, to accommodate technological innovations such as social networking sites. Instead, the existing rules are perfectly adequate to accommodate such advances as long as are a little creative with them, and, if we are, the government shouldn't have to compel production of data and metadata very often. But, if we're not, then we have the situation Morrison described, in which we're damned if we compel production and damned if we don't.

-CM

Interpreting The Text: Supreme Court Of Nevada Finds Only 2 Of 12 Text Messages Authenticated In Kidnapping Appeal

A woman is attacked in her apartment by two men. Later that night, the woman's boyfriend receives 12 text messages from the girlfriend's cell phone: 

• “Willy boy, you better [].” (1:29 a.m.).

• “Willy, do you love me.” (1:30 a.m.).

• “You better go check on your b––––.” (1:38 a.m.).

• “Not playing, not going to answer the phone. You better go check on that ... b––––, she is, you know.” (1:42 a.m.).

• “You dumb ass idiot, you're not talking to her. You better go to her house now. I have to keep my promise and I'm not going back over there. I think you should.” (1:47 a.m.).

• “You're an a––––––. Come over ... there or your girl is going to suffocate, idiot.” (1:50 a.m.).

• “Yeah, you better go over there now. She is in the closet tied up.” (1:53 a.m.).

• “I hope you is going over there.” (2:00 a.m.).

• “We just f–––– your b––––.” (2:02 a.m.).

• “I'm not going to tell me or you no more. She even told me she got herps.” (2:05 a.m.).

• “How is your girl? Is she okay?” (3:08 a.m.).

• “You're lucky I didn't kill that b–––– and I told you.” (4:21 a.m.). 

The State is able to establish that:

• the girlfriend's cell phone was stolen during the attack; and that

• when the cell phone was recovered, there were photos of the defendant on the phone.

That said, a bus surveillance video shows that the defendant was sitting next to his co-defendant while the co-defendant was authoring the first two text messages, and the cell phone was eventually recovered from the co-defendant. In the defendant's trial for crimes against the victim, are the text messages admissible? Let's take a look at the recent opinion of the Supreme Court of Nevada in Rodriguez v. State, 2012 WL 1136437 (Nev. 2012).

In Rodriguez, the facts were as stated above, with Kevin Rodriguez allegedly being the assailant along with Timothy Sanders. Rodriguez was eventually charged with conspiracy to commit robbery, conspiracy to commit kidnapping, conspiracy to commit sexual assault, and other crimes.

At trial, the prosecution introduced the 12 text messages into evidence, and, after he was convicted, Rodrigue appealed, claiming that the messages were hearsay and improperly authenticated as messages written by him. In addressing Rodriguez's appeal, the Supreme Court of Nevada held that

Text messages offer new analytical challenges when courts consider their admissibility. However, those challenges do not require a deviation from basic evidentiary rules applied when determining authentication and hearsay.

First, with regard to authentication, the court held that "[a]lthough this presents a question of first impression for this court, other courts have addressed the authentication of text messages, and we turn to their decisions for guidance." The court then cited to several of these cases and distilled from them that

Establishing the identity of the author of a text message through the use of corroborating evidence is critical to satisfying the authentication requirement for admissibility. We thus conclude that, when there has been an objection to admissibility of a text message,...the proponent of the evidence must explain the purpose for which the text message is being offered and provide sufficient direct or circumstantial corroborating evidence of authorship in order to authenticate the text message as a condition precedent to its admission.

Applying these principles to the case before it, the Nevada Supremes held that

Although the State provided sufficient evidence that the text messages offered into evidence were sent from the victim's cell phone to her boyfriend's cell phone during a time when Rodriguez and Sanders had access to the victim's cell phone, the State only provided sufficient evidence to show that Rodriguez participated in authoring 2 of the 12 proffered text messages—the text message sent at 1:29 a.m. stating, “Willy boy, you better []” and the text message send at 1:30 a.m. stating, “Willy, do you love me.” Those two text messages were sent while Rodriguez and Sanders were on a bus together following the assault. The bus's surveillance video demonstrates that, with Rodriguez seated next to him and watching, Sanders held and operated the victim's cell phone. While it does not appear that Rodriguez typed the two messages, he had firsthand knowledge of the messages and appeared to be participating in composing the messages. Based on this, we conclude that the State provided sufficient direct and circumstantial evidence that tends to corroborate that the two text messages sent at 1:29 a.m. and at 1:30 a.m. were what the State claimed them to be—messages sent or endorsed by Rodriguez that connect him to the assault. However, the record is devoid of any evidence that Rodriguez authored or participated in authoring the ten text messages that were sent after he and Sanders exited the bus around 1:36 a.m. In fact, the evidence suggests that it was Sanders, not Rodriguez, who had possession of the cell phone before the were arrested. Because those ten text messages were not sufficiently authenticated, we conclude that the district court abused its discretion in admitting them.

That left the question of hearsay, with the court finding that the first two text messages were adoptive admissions that were properly admitted against Rodriguez. Of course, that meant that the latter ten text messages were not properly authenticated and constituted inadmissible hearsay, but the court found their improper admission was harmless error given the other evidence of Rodriguez's guilt.

I agree with the court's conclusion and am glad that the court found that evidentiary challenges presented by new forms of communication do not require deviation from basic evidentiary rules. This is part of the point made by Professor Aviva Orenstein in her Shakespearean-inspired forthcoming article, Friends, Gangbangers, Custody Disputants, Lend Me Your Passwords. In it, she argues, inter alia, that we should avoid the temptation reivent the authentication wheel to accommodate the change from pen and paper to text messages to social networking:

Some scholars believe that the complexity and novelty of the new social media “requires greater scrutiny of ‘the foundational requirements’ than letters or other paper records, to bolster reliability.” I, however, agree with the Court in In re F.P., which rejected the notion that electronic communication is “inherently unreliable.” It rejected challenges to authentication stating that “[e]ssentially, appellant would have us create a whole new body of law just to deal with e-mails or instant messages.” The Court acknowledged the possibility that the difficulty of tracing electronic communication with a specific author can create some uncertainty and that “anybody with the right password can gain access to another's e-mail account and send a message ostensibly from that person.” It continued to observe, however, that “the same uncertainties exist with traditional written documents. A signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen.” Historically, those sorts of questions are for the finder-of-fact to sort out.

I think that these are some of many terrific observations that Orenstein makes in her article, which I will address in more detil tomorrow.

-CM

Doctor, Doctor, Give Me The News: Court Of Appeals Of NY Finds Statements By Police/Family In Hospital Record Admissible

In People v. Ortega, 15 N.Y.3d 210 (2010), the Court of Appeals of New York held that "hearsay statements by crime victims contained in a hospital record that pertain to medical diagnosis and treatment of the victim" are admissible under the exception to the rule against hearsay for business records and/or statements made for purposes of diagnosis or treatment. In Dolan v. Joan W., 2012 WL 108362 (2012), the Court of Appeals of New York had to answer the follow-up question of whether statements by relatives or law enforcement personnel should also be admissible under the exception in hearings pursuant to Article 9 of the Mental Hygiene Law.

In Dolan, Joan W. challenged the proposed continuation of a court-ordered treatment plan for her. During her Article 9 hearing, Joan W.'s attorney

objected to hearsay statements contained in various records in the hospital record which were attributable (1) to respondent's son, who allegedly stated in the Syosset emergency room that his mother wanted to hurt herself and that her family found her in an intoxicated state; (2) to respondent's son, who claimed to the emergency ambulance personnel that the respondent was suicidal; (3) to respondent's son, which states in the emergency department record "suicidal ideation as per family...patient going through crisis. Patient denies [suicidal ideation];" (4) to Central Nassau Guidance, in Nassau University Medical Center's progress notes, “that patient only kept her intake appointment and failed to show up for her subsequent medication appointment;” and (5) to Brian Shannon, respondent's caseworker, that "patient has been non-compliant with meds as evidenced from her recent callings to the caseworker, always verbalizing paranoid ideation associated with family. Patient has been unstable, angry on the phone."

Joan W. renewed these objections on appeal, but the Court of Appeals of New York found that these statements were properly admitted. According to the court,

 all of these statements in the hospital record are admissible evidence, under the business record exception to the hearsay rule, to support an AOT order since the statements were relevant for the hospital to diagnose, treatment and ultimately develop a discharge plan for the respondent....Accordingly, the objections by the respondents to the admissibility of these statements into evidence is overruled, and the aforesaid statements are deemed to be admitted into evidence.

I agree with this conclusion at the hearsay level. Also, I'm assuming that an Article 9 hearing is not criminal in nature, meaning that there would be ne Confrontation Clause problem.

-CM

The Pit & The Pendulum: Supreme Court Of Indiana Reverses Prior Precedent Regarding Child Molestation Expert Testimony

Indiana Rule of Evidence 704(b) provides that

Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.

In Lawrence v. State, 464 N.E.2d 923 (Ind. 1984), the Supreme Court of Indiana found that 

Whenever an alleged child victim takes the witness stand in [child molestation] cases, the child's capacity to accurately describe a meeting with an adult which may involve touching, sexual stimulation, displays of affection and the like, is automatically in issue, whether or not there is an effort by the opponent of such witness to impeach on the basis of a lack of such capacity. The presence of that issue justifies the court in permitting some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters. Such opinions will facilitate an original credibility assessment of the child by the trier of fact, so long as they do not take the direct form of "I believe the child's story", or "In my opinion the child is telling the truth".

But can such testimony be given consistent with Rule 704(b)? According to the recent opinion of the Supreme Court of Indiana in Hoglund v. State, 962 N.E.2d 1230 (Ind. 2012), the answer is "no."

In Hoglund, Keith Hoglund was charged with two counts of child molesting based upon acts allegedly committed against A.H. At trial,

The State called as expert witnesses pediatrician Carol Butler, clinical psychologist Amanda Mayle, and mental health counselor Christine Shestak. Each witness had treated or counseled A.H. In varying degrees of specificity, each witness essentially testified that A.H. was "not prone to exaggerate or fantasize" concerning sexual matters.

After he was convicted, Hoglund appealed, claiming, inter alia, that this testimony should have been deemed inadmissible under Indiana Rule of Evidence 704(b). In response, the Supreme Court of Indiana noted that, starting with its opinion in Lawrence, "our courts have adhered to relaxed evidentiary rules concerning the testimony of children who are called upon as witnesses to describe sexual conduct." Of course, the court then noted that Lawrence was decided before the adoption of the Indiana Rules of Evidence.

The Indiana Supremes thus decided to reconsider the issue and found that

Much akin to the development of the depraved sexual instinct exception to the hearsay rule—which we abrogated in Lannan v. State—a significant underlying rationale to support permitting some accrediting of a child witness' testimony was that "allowing such evidence lends credence to a victim's testimony describing acts which would otherwise seem improbable standing alone."...But this rationale presupposes that the very idea of an adult forcing himself or herself upon a defenseless child is inconceivable and that absent some amount of accrediting testimony the child will not be believed....

Sadly, accusations of child molesting in this twenty-first century are all too common. And precisely because of the unfortunate frequency of such accusations the need for accrediting testimony is not as acute as it may have been over two decades ago. See Laurie Shanks, Child Sexual Abuse: Moving toward a Balanced and Rational Approach to the Cases Everyone Abhors, 34 Am. J. Trial Advoc. 517, 517 (2011) (observing a "pendulum" swing in recent years in public perception about the testimony of young children in child sex abuse cases). We conclude that the shift in public attitudes concerning allegations*1237 of child sex abuse undermines the necessity to carve out an exception to Rule 704(b).

Therefore, the court "expressly overrule[d] that portion of Lawrence allowing for 'some accrediting of the child witness in the form of opinions from parents, teachers, and others having adequate experience with the child, that the child is not prone to exaggerate or fantasize about sexual matters.'" (That said, because the court found harmless error, it affirmed Hoglund's conviction).

-CM 

True Confessions?: Court Of Appeals Of New York Finds No Problem With No Frye Hearing On False Confession Testimony

In People v. LeGrand, 8 N.Y.3d 449 (2007), the Court of Appeals of New York held

that where the case turns on the accuracy of eyewitness identifications and there is little or no corroborating evidence connecting the defendant to the crime, it is an abuse of discretion for a trial court to exclude expert testimony on the reliability of eyewitness identifications if that testimony is (1) relevant to the witness's identification of defendant, (2) based on principles that are generally accepted within the relevant scientific community, (3) proffered by a qualified expert and (4) on a topic beyond the ken of the average juror.

In People v. Bedessie, 2012 WL 1032738 (2012), the Court of Appeals of New York was presented with the appeal of a man convicted in a case that turned on the accuracy of his confession and in which there was possibly little or no corroborating evidence connecting the defendant to the crime. That man claimed that the trial court abused its discretion by excluding expert testimony on the phenomenon of false confessions So, what did the court do?

Well, the majority found that the trial court did not abuse its discretion by deeming the expert testimony inadmissible without even conducting a Frye hearing. In Bedessie, the defendant was charged with first degree rape, first degree sexual abuse, and endangering welfare of child, and according to the Court of Appeals of New York, the trial

judge in this case declined to hold a Frye hearing. He reasoned that this was unnecessary because Dr. Ofshe's expert testimony was not relevant and likely to assist the jurors in any way. He noted in particular that the jurors, based on their own life experiences, were competent to assess the reliability of defendant's confession, and, indeed, the expert's testimony threatened to usurp the jury's function. Second, he concluded that the child's testimony was likely to (and, in fact, did) corroborate defendant's confession.

The Court of Appeals found that this decision was not an abuse of discretion despite the defendant's claim that the child's testimony was tainted by suggestive influence by the alleged victim's mother.

In a dissenting opinion, Justice Jones disagreed, claiming that "without a Frye hearing on the issue of whether the proposed testimony contained information generally accepted by the scientific community, such conclusion [wa]s not possible." Moreover, Justice Jones cited to the block quote from LeGrand cited in he introduction and used it to conclude that

A similar rule should be extended to the phenomenon of false confessions. Where, aside from the confession, there is little or no evidence connecting the defendant to the charged crime, to exclude expert testimony on the reliability of the defendant's disavowed confession would be an abuse of a trial court's discretion "if that testimony is [1] based on principles that are generally accepted within the relevant scientific community, [2] proffered by a qualified expert and [3] on a topic beyond the ken of the average juror."

-CM

Feeling Like A Criminal: 2nd Circuit Joins Other Circuits In Finding Rule 404(b) Covers Non-Criminal Acts

Federal Rule of Evidence 404(b) states:

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

Every circuit that has addressed the issue has found that Rule 404(b) extends to non-criminal acts or wrongs, and, after the recent opinion in United States v. Scott, 2012 WL 1143579 (2nd Cir. 2012), you can now add the Second Circuit to their ranks.

In Scott, William Scott was charged with distributing, and possessing with the intent to distribute, a controlled substance. Scott was arrested by two police officers, and

Prior to trial, the government informed defense counsel that it planned to ask the following questions during the direct examination of each of the two police witnesses: "About how many times had you seen [Scott] in the past? Had you spoken to him before? And when you had spoken to him before, what was about the longest conversation you had ever had with him?" The government indicated that one detective would say his longest conversation with Scott lasted five minutes, the other twenty. Defense counsel first objected to this line of questioning at a pretrial telephone conference. The district court overruled the objection because "the amount of time that the witnesses would state that they had spoken to Mr. Scott before would not lead someone to conclude that he had ever been arrested, and as we all know, that is something that, unless he takes the stand, we are not getting into his prior record."

Thereafter,

Defense counsel continued his objection before trial, arguing that the recognition testimony would encourage the jury to speculate about Scott's prior encounters with the police. He stated:

I don't think anyone in the jury box is going to think it was a friendly encounter. I don't think the jurors are going to believe that Mr. Scott was just saying hello and asking about the officers' family life. But, rather, it would be clear that the police engaging in these conversations were doing so in the course of investigative processes, and the jury is going to believe that this is an individual who is known to the police.... Again, it's not a matter of the jury just being led to believe that the officers were setting up in a location and watching to see what, if any, activity would be happening in this known drug location, but, rather, that they intentionally stopped because they saw an individual who has been known to them in the past, who they have had encounters with in the past, and therefore they chose to stop and observe him, which would only lead a jury to believe that there is a history of criminal activity on behalf of Mr. Scott, there is a propensity for him to commit crimes or a propensity for them to do something that would warrant police observation.

After some more back-and-forth, the district court allowed for the admission of this testimony, and Scott was eventually convicted. He thereafter appealed, claiming that this testimony was improperly admitted. In response, the government claimed that Rule 404(b) was inapplicable because the police witnesses did not testify that Scott was "engaging in criminal or wrongful conduct." The Second Circuit disagreed, finding that

The problem with such an argument is that Rule 404(b) is not limited to evidence of crimes or wrongs. By its very terms, Rule 404(b) addresses "other crimes, wrongs, or acts." (emphasis added). Nothing about these words implies that the "other...acts" to which Rule 404(b) refers must be "bad." Indeed, to read the Rule as such "violate[s] the cardinal principle of statutory interpretation that courts must 'give effect, if possible, to every clause and word of a statute.'"...While crimes, wrongs, or bad acts may be more likely than other kinds of acts to demonstrate criminal propensity and thus be inadmissible for that reason under Rule 404(b), the Rule itself is in no sense limited to such acts. Each of our sister Circuits to consider the issue has concluded that Rule 404(b) extends to non-criminal acts or wrongs, and we now join them.

-CM