Saturday, April 28, 2012
Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for
A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
Until yesterday, Florida did not have a similar forfeiture by wrongdoing exception, but that all changed with the stroke of the pen by Governor Rick Scott.
Friday, April 27, 2012
Little Jerry Was Born To Cockfight: 4th Circuit Finds Juror Wikipedia Research Invalidated Cockfighting Conviction
A defendant and co-defendants are convicted of violating, and conspiring to violate, the animal fighting prohibition of the Animal Welfare Act, 7 U.S.C. § 2156(a), resulting from their participation in "gamefowl derbies," otherwise known as "cockfighting." the Act prohibits, among other things, "sponsor[ing] or exhibit[ing] an animal in an animal fighting venture." If a juror looks up the word "sponsor" on Wikipedia, prints out the relevant page, and brings the page to the jury deliberation room, is there a rebuttable presumption of prejudice? According to the recent opinion of the Fourth Circuit in United States v. Lawson, 2012 WL 1372172 (4th Cir. 2012), the answer is "yes."
Thursday, April 26, 2012
Leading Authority: Court Of Appeals Of Mississippi Finds No Error With Trial Judge Allowing Some Leading ?s
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop his testimony. Ordinarily, leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
As the language of Rule 611(c) makes clear, parties calling (1) a hostile witness, (2) an adverse party, or a (3) witness identified with an adverse party may use leading questions. But as the language of Rule 611(c) implies and the recent opinion of the Court of Appeals of Mississippi in James v. State, 2012 WL 1399120 (Miss.App. 2012), makes clear, the court has the discretion to allow leading questions even for non-adverse witnesses called by a party.
Wednesday, April 25, 2012
Nonconfrontational: Florida Appellate Court Finds Different Tests For Hearsay And Confrontation Clause Terms
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Like Federal Rule of Evidence 804(a), section 90.804(1) of the Florida Statutes sets forth five situations in which a hearsay declarant is "unavailable" for hearsay purposes. And, like Federal Rule of Evidence 804(b)(1), section 90.804(2)(a) provides an exception to the rule against hearsay for
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
So, do we determine if a declarant "unavailable" for Confrontation Clause purposes by using the hearsay test, and do we determine whether the defendant was previously able to cross-examine the declarant by using the "former testimony" test? According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in Petit v. State, 2012 WL 1314153 (Fla.App. 4 Dist. 2012).
Tuesday, April 24, 2012
Liar, Liar: Polygraph Evidence, The Jury As Lie Detector, Cross-Racial IDs & Quantifying Probable Cause & Reasonable Doubt
In United States v. Scheffer, 523 U.S. 303 (1998),
Air Force airman Edward Scheffer volunteered in March 1992 to work as an informant on drug investigations, which rendered him subject to drug testing and polygraph examinations. Soon after taking a drug test that April, but before the results were known, Scheffer agreed to take a polygraph test, which “indicated no deception” when he denied using drugs since enlisting. If Scheffer was lying, the drug test was not, as it revealed the presence of methamphetamine.
During his ensuing court-martial on charges of methamphetamine use, Scheffer raised an “innocent ingestion” theory, but the military judge precluded him from introducing the polygraph evidence in support of this claim pursuant to Military Rule of Evidence 707, which stated in relevant part: “(a) Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination shall not be admitted into evidence.”
In finding that the application of Rule 707 to the polygraph results did not violate Scheffer's right to present a defense, Justice Thomas, writing for the Court, found that "there is simply no way to know in a particular case whether a polygraph examiner's conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams." Accordingly, the Court held that Rule 707 rationally and proportionally advanced the government's "legitimate interest in ensuring that reliable evidence is presented to the trier of fact in a criminal trial."
It was another portion of Justice Thomas' opinion that got the most ink even though this portion of the opinion was not joined by a majority of the Court. In this portion of the opinion, Justice Thomas averred that the problem with polygraph evidence is that "[a] fundamental premise of our criminal trial system is that 'the jury is the lie detector.'" And, according to Justice Thomas,
Jurisdictions, in promulgating rules of evidence, may legitimately be concerned about the risk that juries will give excessive weight to the opinions of a polygrapher, clothed as they are in scientific expertise and at times offering, as in respondent's case, a conclusion about the ultimate issue in the trial. Such jurisdictions may legitimately determine that the aura of infallibility attending polygraph evidence can lead jurors to abandon their duty to assess credibility and guilt. Those jurisdictions may also take into account the fact that a judge cannot determine, when ruling on a motion to admit polygraph evidence, whether a particular polygraph expert is likely to influence the jury unduly.
Before my recent blog exchange with Erica Goldberg (see here, here, and here), I never understood why a majority of the Court did not join in this portion of Justice Thomas' opinion. Now, I think I do, and this understanding further informs the issue of whether courts should quantify probable cause and reasonable doubt.
Monday, April 23, 2012
Reelin' In The Years: 11th Circuit Badly Botches Rule 609(b) Analysis, Bypassing "Confinement" Issue
Federal Rule of Evidence 609(b) provides that
This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
If you want to find an especially terrible analysis of Rule 609(b), you need to look no further than the recent opinion of the Eleventh Circuit in United States v. Colon, 2012 WL 1368162 (11th Cir. 2012). Even worse, that terrible analysis meant that the Elevent Circuit sidestepped the most interesting issue in the case.
Sunday, April 22, 2012
As reported by Brad Zinn,
Sometimes the wheels of justice, or in this case the codes that oil those wheels, can move incredibly slow in Virginia.
But after 18 years, come July 1 the state will have codified rules of evidence that will bring Virginia's courts in line with 48 other states that already have rules of evidence in place, leaving Massachusetts as the last remaining state not to do so.
Cadaver dogs are back in the news with the revelation that a cadaver-sniffing dog detected the odor of human remains in a basement near the SoHo home of Etan Patz, a 6-year-old who disappeared in 1979 en route to a New York City bus stop. The Patz case again raises the issue of the reliability od cadaver dogs, which I previously addressed on this blog (here and here) during the Casey Anthony trial. Two problems with cadaver dogs are that:
(1) Sometimes they get waylaid by any decaying organic matter (e.g. a rotten log), and similar chemical signatures make it impossible for them to distinguish between humans and pigs. Thus, handlers are taught always to be on the alert for false positives; and
(2) No one knows exactly what dogs are smelling when they indicate the possible presence of remains.
Of course, the Patz case raises the separate question of whether dogs can really smell 33 year-old remains. According to an article,
Researchers from the University of Alabama, hoping to zero in on how long the scent of death might linger at a crime scene, designed a test for the state police’s cadaver dogs. A single human vertebra, more than 30 years old, was buried 12 inches deep. The dogs were let loose across a 300-by-150-foot plot, and several succeeded in sniffing out the dry bone fragment. So it’s certainly possible that the canines recruited for Etan Patz’s search could detect parts of a 33-year-old body hidden in the basement on Prince Street. A variety of factors, however, mediate the strength of the death odor and how quickly it dissipates. Temperature, humidity, the softness or hardness of the ground, and the amount of degrading matter all play a role, as does the physiology of the dog. (A heavily panting pooch can’t scent very well.)
What this reveals is that there is at least some research out there regarding the reliability of cadaver dogs, and yet, I haven't seen any evidence of courts really using this research to create a rigorous and scientifically valid test for when cadaver-sniffing dog detection creates probable cause or is admissible at trial. Indeed, in the case on the issue that I previously cited, the court tried to retrofit the test that it applies for scent lineup dogs to cadaver dogs while acknowledging that what the two types of dogs do is very different.