January 14, 2012
In The Main(e): Supreme Court Of Maine Reveals Lack Of Mercy Rule For Victim Character Evidence
Federal Rule of Evidence 404(a)(2)(B) provides in relevent part that
subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait...
In other words, despite the propensity character evidence proscription, a criminal defendant charged with murdering a victim could present evidence concerning the victim's violent character pursuant to the above "mercy rule." Maine Rule of Evidence 404(a), however, does not contain a similar provision, which was fatal to the defendant's appeal in State v. Holland, 2012 WL 90160 (Me. 2012).
In Holland, Rory Holland was convicted of two counts of intentional or knowing murder based upon the shooting deaths of Derek Greene and Gage Greene. After Holland was convicted, he appealed, claiming, inter alia, that the trial court erred by precluding him from presenting evidence of the victims' violent reputations. Holland claimed that this evidence was plainly admissible under the Federal Rules of Evidence, as noted above.
The Supreme Court of Maine, however, responded that Holland's case was governed by the Maine Rules of Evidence and not the Federal Rules of Evidence. And the problem for Holland in this regard was that the Maine Rules of Evidence do not have a counterpart to Federal Rule of Evidence 404(a)(2)(B). Moreover, the court noted that
Our decision to diverge from the federal rule was intentional. Reputation evidence not known to the accused "is omitted from [Rule 404] because it has slight probative value and is likely to be highly prejudicial, so as to divert attention from what actually occurred." M.R. Evid. 404 Advisers' Note....
In other words, if Holland new of the victims' violent reputations before he shot them, evidence of their reputations would have been admissible to prove his reasonable apprehension of them. But because Holland did not know of their violent reputations, evidence of their reputations was inadmissible to prove their violent tendencies.
January 13, 2012
Parting Gesture: Court Of Appeals Of Indiana Finds Trial Court Properly Found Hand Gestures Were Excited Utterances
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
And, as the recent opinion of the Court of Appeals of Indiana in Evans v. State, 2012 WL 77216 (Ind.App. 2012), makes clear, this "excited utterance" exception covers not only oral statements but also nonverbal conduct intended as an assertion.In Evans,
A.K. was a 37–year–old resident at Eagle Valley Meadows, a long-term care facility in Indianapolis. A.K.'s family had placed her in the facility after she suffered a ruptured brain aneurysm that left her severely physically handicapped and unable to care for herself. She breathes through a tracheotomy tube and is fed through a tube. Although A.K. has feeling in her limbs, she maintains only a slight ability to move her left hand. The aneurysm did not affect her cognitive functions, and she communicates through hand gestures to indicate "yes" and "no" using her left hand. A.K.'s sister, M.K., visited A.K. at the facility every day.
Diyon Evans was a Certified Nursing Assistant at the facility and entered A.K.'s room at approximately 9:00 a.m. on April 7, 2009 and remained inside with the door closed for twenty to thirty miuntes.
When M.K. arrived at the facility later that day, A.K. immediately began crying when she saw M.K. M.K. described the crying as "terrifying."...This was not the first time that M.K had seen A.K. cry, but because of the nature of her crying, M.K. suspected that something terrible had happened. M.K. asked A.K. a series of investigative questions to deduce what was wrong, beginning with whether her head hurt. A.K. gestured "no" to each of those questions....Then, not believing it to be a serious question, M.K. asked A.K. if she had been raped. A.K. began to cry harder and gestured "yes."...M.K. further questioned her sister, and A.K. signaled "yes" when asked whether it was one of her caretakers and whether that person was a man. A.K. also indicated she had been touched in her vagina and "butt" and gestured "yes" when asked whether the person had put his penis into her vagina and "butt."
At trial, the court allowed for the admission of testimony concerning A.K.'s gestures as excited utterances, leading to Evans' conviction for Rape and Criminal Deviate Conduct. After he was convicted, Evans appealed, claiming, inter alia, that the trial court erred in admitting testimony concerning A.K.'s gestures because "the State failed to present a clear record of the amount of time that elapsed between the rape and when A.K. reported the rape to M.K."
The Court of Appeals of Indiana disagreed, concluding that
Here, the record reveals that Evans was in A.K.'s room with the door closed from approximately 9:00 to 9:30 a.m. M.K. testified that, when she arrived and A.K. told M.K she had been raped, she immediately reported that information to the on-duty nurse, who recalled talking to M.K. sometime around 5:00 p.m. Although the time between the incident and A.K.'s statements to M.K. may have been in upwards of seven hours, it is certainly conceivable that A.K.'s physical limitations prolonged the stress of the rape committed by her caretaker. Unable to talk, A.K. could not communicate to anyone about what had occurred until her sister arrived. Unable to move, she remained in the same bed where she had been raped. When she made the statements to her sister, A.K.'s crying was "terrifying."...Under these facts and circumstances, the trial court could reasonably conclude that, despite the elapsed time, A.K.'s statements to M.K. were made while she was under the continuing stress of excitement caused by the rape.
January 12, 2012
Dead Again: NJ Appellate Court Finds Dying Declarations Were Nontestimonial
In a criminal proceeding, [for] a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death.
Since the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), every case that I have seen dealing with Rule 804(b)(2) has found that the admission of a testimonial dying declaration per se does not violate the Confrontation Clause. But what about the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Whitehurst, 2012 WL 28670 (N.J.Super A.D. 2012)?
In Whitehurst, Tiquan Whitehurst was convicted of the first-degree purposeful or knowing murders of Joseph Cox and Charles Jackson and related crimes. These murders allegedly took place with Whitehurst in the back seat of a car being driven by Jackson, with Cox as the front seat passenger. Police Officer Gregory Hamilton
and police officer Lisa Sanchez arrived at the scene after...fire fighters and EMTs. Hamilton saw the front-seat passenger, Cox, had been shot in the head and was dead. He also saw defendant in the backseat, unconscious. Jackson was trying to unbuckle his seat belt, and said to Hamilton, "Officer, I'm dying, I want to get out the seat belt." Hamilton tried to calm Jackson, who repeated that he felt like he was dying and wanted to get out of his seat belt. When Hamilton asked what happened, Jackson responded, "[T]he guy in the back seat shot us." Jackson told Sanchez, "I'm dying. Ma‘am, I'm dying."
The trial court allowed for the admission of Jackson's statements as dying declarations, prompting Whitehurst's appeal after he was convicted. Specifically, Whitehurst claimed that these statements were testimonial, rendering them inadmissible under the Confrontation Clause.
the Superior Court of New Jersey, Appellate Division, disagred, noting that in Michigan v. Bryant,
the defendant challenged the admission of the murder victim's statements at trial claiming a violation of the Confrontation Clause. On the night of the crime, police found the victim, who had "a gunshot wound to his abdomen, appeared to be in great pain, and spoke with difficulty."...The officers asked the victim "what had happened, who had shot him, and where the shooting had occurred."...The victim died shortly after telling the police that the defendant had shot him and where the shooting occurred....
The Court held that "the ultimate inquiry is whether the 'primary purpose of the interrogation [was] to enable police assistance to meet [the] ongoing emergency.'"...The questions asked of the victim—"what had happened, who had shot him, and where the shooting occurred"—"were the exact type of questions necessary to allow the police to 'assess the situation, the threat to their own safety, and possible danger to the potential victim' and to the public."..."When, as in Davis, the primary purpose of an interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause."
The court then found Bryant analogous to the case before it despite Whitehurst's protestations to the contrary:
Defendant contends that the situation was different from that posed by Bryant because he was unconscious in the backseat of the car and the police did not face an ongoing emergency regarding the location or threat of a gunman at large. Of course, this argument overlooks the fact that the police knew defendant was the gunman only as a result of Jackson's responses to their questions. We believe it is clear that admission of Jackson's dying declarations did not violate the Confrontation Clause.
What's interesting about this conclusion is that the court even bothered to go through the analysis of whether Jackson's statements are testimonial. The implication seems to be that there would have been a Confrontation Clause violation if Jackson's statements were testimonial. That would be contrary to what other courts have found, and it will be interesting to see what the court does if presented with that factual circumstance in an upcoming case.
January 11, 2012
"State Farm Is There" Take On New Meaning In Character Evidence Case Involving Undercover Surveillance
State Farm's slogan is, "Like a good neighboor, State Farm is there." What I didn't realize until reading the recent opinion of the Sixth Circuit in State Farm Mut. Auto Ins. Co. v. Accident Victims Home Health Care Services, Inc., 2012 WL 48338 (6th Cir. 2012), is that if you're injured in a car accident and State Farm provodes you with home attendant care supervision services, State Farm will really be there. Carrie Mathison in "Homeland" there.
In State Farm, Wendell Jackson and Luella Neal were insured by State Farm and injured in an automobile accident. Pursuant to Michigan's no-fault law, State Farm paid Accident Victims Home Health Care Services, Inc. personal injury protection insurance benefits for all necessary and reasonable services for Jackson and Neal.
AVHHC employees used a "Daily Observation Report" to record their time and activities while providing attendant care supervision to clients. As AVHHC's president, [George] Paige reviewed the accuracy of these reports and corrected any errors before forwarding the reports to the insurance company with a request for payment.
State Farm conducted twenty-four days of undercover surveillance, which yielded minutes of video showing Jackson unsupervised on two occasions and Neal unsupervised playing a casino slot machine.
State Farm thereafter filed an action against AVHHC and Paige to recover all of the benefits it had paid for Jackson and Neal in the amount of $916,754.00. State Farm alleged that the services AVHHC provided to these two clients were unnecessary or unreasonable or, alternatively, AVHHC submitted fraudulent claims. The district court entered summary judgment in favor of Paige and dismissed him from the suit, and the action against AVHHC proceeded to trial.
Before trial, AVHHC filed a motion in limine.
AVHHC's motion in limine sought to exclude evidence concerning a Michigan state court proceeding, Owens v. State Farm. That case involved Kathy Owens, an AVHHC client who sued State Farm to recover first-party no-fault benefits. State Farm settled with Owens. AVHHC intervened in the suit as a plaintiff to pursue a reimbursement claim against State Farm for services it provided to Owens. During trial, the state court judge found that Paige had tampered with documentary evidence shortly before trial by fraudulently altering certain AVHHC daily observation reports. As a sanction for Paige's conduct, the court dismissed AVHHC's case against State Farm.
The district court denied AVHHC's motion, and judgement as eventually entered in favor of State Farm. AVHHC thereafter appealed, claiming that evidence realting to the prior proceeding was inadmissible propensity character evidence under Federal Rule of Evidence 404(a)(1), which provides that
Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
The Sixth Circuit agreed, finding that it was evident from the district court's denial or AVHHC's motion that the subject evidence was propensity character evidence. That ruling stated:
The prior litigation unfortunately will have to be admitted. I don't think it's more prejudicial than probative. It is relevant not only to the character of the defendant but to the fact of a fraud having been committed once before, the same type of fraud, and it's not 404(b) evidence.
January 10, 2012
The Loss Of Sexual Innocence: Supreme Court Of Guam Finds Trial Court Erred In Limiting Cross-Examination Of Child Rape Victim
A defendant is on trial for criminal sexual conduct based upon acts that he allegedly committed against a 10 year-old victim. Previously, a forensic examination of the alleged victim revealed scar tissue on her hymen. Before trial, the defendant failed to comply with the procedure for admitting evidence under an exception to the rape shield rule, but he later asks to introduce evidence of another sexual crime committed against the alleged victim under one of these exceptions. The trial court refuses to allow defense counsel to cross-examine the alleged victim regarding evidence of this other sexual crime, but it does allow him to present such evidence through other witnesses. Sounds like a reasonable compromise, right? In fact, maybe the court shouldn't even have allowed the introduction of this evidence at all, right? Well, not according to the recent opinion of the Supreme Court of the Territory of Guam in Guam v. Ojeda, 2011 WL 6937376 (Guam Terr. 2011).
Notwithstanding any other provision of law, evidence of specific instances of a person's past sexual conduct is not admissible in any trial if an issue in such trial is whether such person was a victim of criminal sexual conduct, except that otherwise admissible evidence of specific instances of such conduct is admissible in such trial:
1. If such evidence:
i. is evidence of sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of pregnancy, disease, semen or injury....
For a defendant to admit such evidence under this exception, however, he must comply with 6 GCA § 8207(c)(1), which states that
If the person accused of criminal sexual conduct intends to offer under subsection (b) of this Section, evidence of specific instances of the alleged victim's past sexual behavior, the accused shall make a written motion to offer such evidence not later than fifteen (15) days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. Any motion made under this paragraph shall be served on all other parties and on the alleged victim if not a party.
The defendant, Arthur Ojeda, did not comply with § 8207(c)(1), but the trial court still allowed him to introduce certain evidence regarding another sexual crime committed (by Rey Hermosilla) against the alleged victim, M.A.D.C., to prove that this crime could have been the cause of the scar tissue on her hymen. Specifically, the court allowed defense counsel to question a nurse and a social worker regarding this other sexual crime, but it precluded defense counsel from cross-examining the alleged victim about the other crime.
After he was convicted, the defendant appealed, claiming that the trial court improperly circumscribed his cross-examination of the alleged victim. The State countered that the trial court shouldn't even have allowed the defendant to present evidence of the other sexual crime at all because he failed to comply with § 8207(c)(1). The Guam Supremes initially found that even if the defendant failed to comply with § 8207(c)(1), the trial court would have run afoul of the Confrontation Clause if it precluded evidence of the other sexual crime in a way that was arbitrary and/or disproportionate with the goals of Guam's rape shield rule.
The court then found that the trial court's restrictions on Ojeda's right to confront M.A.D.C. were not arbitrary. The trial court carefully considered the interest of protecting M.A.D.C. from repeated inquiry into the sexual assaults by Hermosilla, especially considering that she had to endure not one but two sexual assault trials. We share the concerns expressed by the trial court. The Confrontation Clause does not compel the admission of evidence that will harass and prejudice the victim, confuse the jury, jeopardize the witness' safety, or is repetitive or only marginally relevant.
That said, the court found that the trial court's decision to preclude the defendant from cross-examining the defendant was disproportionate to the goals of the rape shield rule:
Here, we recognize that the interest in protecting M.A.D.C., only ten years old at the time of trial, is compelling. We also acknowledge the potential embarrassment and discomfort to M.A.D.C. that would result from being forced to relive the assault or assaults by Hermosilla. We conclude, however, that the restrictions placed on Ojeda's rights to confront M.A.D.C. and to put on a full defense were disproportionate to the purposes these restrictions are designed to serve.
We agree with the People that the jury had learned at least some very basic information about the victim's allegations against Hermosilla. Merely providing bare information about a prior sexual assault against the victim, however, does not pass constitutional muster if the evidence does not provide sufficient information for a meaningful defense. Although the testimony of the [nurse and social worker] introduced the jurors to a possible alternative perpetrator, "Uncle Rey," there was very little definitive evidence regarding the exact types of sexual assault alleged to have been committed by Hermosilla. In fact, the only time penetration by Hermosilla was ever suggested was when the defense counsel asked [the social worker] if her report indicated "that there was possible digital and penile penetration," to which she responded "Yes."...The other evidence at trial suggested to the jury that the only person who might have penetrated and injured M.A.D.C. was Ojeda, leaving the jury to infer that he caused her injury. Without sufficient information to determine whether the alleged assaults by Hermosilla involved penetration, which could have provided a potential alternative explanation for the injury to M.A.D.C.'s hymen, a "serious risk of a conviction on erroneous reasoning" remained....Thus, to ensure a fair trial, Ojeda should have been afforded the opportunity to elicit conclusive evidence of the type of assault perpetrated by Hermosilla. While this opportunity might have been realized through a less restricted cross-examination of M.A.D.C., the information also could have been presented in a stipulation on the matter. Because the jury was not presented with conclusive evidence of the type of assault committed by Hermosilla, Ojeda was deprived of his right to put on a complete and meaningful defense. Any prejudice to M.A.D.C. is far outweighed by the probativeness of the excluded evidence, and the restrictions on Ojeda's right to confront M.A.D.C. were disproportionate to the purposes they are designed to serve.
The court thus granted the defendant a new trial, but should it have? I think that the answer is a clear "no." Sure, one goal of Guam's rape shield rule is to prevent the embarrassment and discomfort to alleged victims such as M.A.D.C., and sure, courts need to balance these concerns with the evidentiary needs of defendants.
But what about the other goals of the rape shield rule, specifically the goals of 6 GCA § 8207(c)(1)'s 15-day notice requirement? This notice requirement serves several purposes. It allows the prosecution to form arguments as to why an exception to the rape shield rule shouldn't apply. It allows the alleged victim to prepare for the possibility that evidence of other sexual acts committed by and/or against her might be admitted at trial. And, it allows the court sufficient time to be able to determine whether an exception to the rape shield rule applies and/or whether something like the stipulation suggested by the Guam Supremes makes sense.
The defendant didn't comply with the notice requirement of Guam's rape shield rule, and, the way I see it, the trial court did the best that it could with the time it was given. Given the lack of notice given by the defendant, I think that the trial court's application of Guam's rape shield rule was proportional. The Guam Supremes disagreed. And now, the alleged child victim has to go through a third trial regarding sexual abuse against her. And given the court's ruling, I'm guessing that the third trial will involve cross-examination of her regarding other sexual crimes against her.
January 9, 2012
Staying Neutral: 4th Circuit Finds Neutral Pronoun Substitution Satisfied Bruton Doctrine
The Confrontation Clause of the Sixth Amendment states that
In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...
Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. But what if the court redacts the statement and replaces the other defendant's name with a neutral pronoun? As I have noted in prior posts (see, e.g., here), several courts have started to find that such a procedure does not violate the Bruton doctrine. The recent opinion of the Fourth Circuit in United States v. Glisson, 2012 WL 19667 (4th Cir. 2012), reveals that the Fourth Circuit is among their ranks.
In Glisson, brothers Decardio Glisson and Derrick Glisson were convicted of various narcotics and firearms offenses. Before Decardio was convicted, he filed a pretrial motion under Bruton to suppress a statement that Derrick provided to the police which linked Decardio to the crimes charged. The district court denied the motion, instead approving a procedure under which Derrick's statement would be admitted, with any references to Decardio were replaced with "another person," "other person," and "the driver."
After he was convicted, Decardio appealed, claiming, inter alia, that the admission of Derrick's statement violated the Bruton doctrine. The Fourth Circuit disagreed, concluding that
Although the statements, when combined with other evidence, may have incriminated Decardio, such inferential incrimination does not violate theConfrontation Clause. See United States v. Akinkoye, 185 F.3d 192, 198 (4th Cir.1999) (approving of neutral phrases in the redaction such as "another person" or "another individual"); United States v. Vogt, 910 F.2d 1184, 1191–92 (4th Cir.1990) (noting that a redacted statement, in which the co-defendant's name was replaced with the word "client," did not on its face impermissibly incriminate the codefendant even though the incriminating import was inferable from other evidence that had been admitted). Accordingly, we hold that the district court did not abuse its discretion by admitting the redacted statement into evidence.
January 8, 2012
Double Secret Probation Edition: D. Conn. Limits Deposition Of Probation Officer At Plaintiff's Request
A plaintiff brings a civil action against a university. After being deposed, the plaintiff realizes that defense counsel has asked to depose his probation officer. The plaintiff argues that the deposition will have an in terrorem effect on his pursuit of his case, given that disclosure to the probation officer of certain facts of the case could subject him to criminal prosecution for violation of his probation. Is there a way for the plaintiff to prevent or at least limit the deposition of the probation officer? According to the recent opinion of the United States District Court for the District of Connecticut in Doe v. University of Connecticut, 2012 WL 12745 (D.Conn. 2012), the answer is "yes."Doe involed a Title VII action by John Doe against the University of Connecticut and was
the culmination of a series of highly troubling events between John Doe and his former friend and supervisor John Smith. Plaintiff and Smith knew have known other since 1986. With Smith's assistance, plaintiff, born in Afghanistan and a freedom fighter against the Soviet Union, was granted political asylum in 1986. In 1998, plaintiff began working at the University of Connecticut as a part time Special Payroll Administrator, and in 2002 plaintiff became a full time program aide under the immediate supervision of John Smith. Plaintiff and Smith lived in the same multi-family home with their respective families. In May 2006, Smith accused Doe of assault and Doe was arrested and suspended from employment at UConn. In June 2006, Doe filed an internal complaint against Smith, alleging that Smith subjected him to sexual harassment from 2002–2006. In July 2006, Smith filed criminal charges against Doe, alleging that Doe had sexually molested Smith's minor daughter. In 2008, Smith's employment was terminated as a result of UConn's internal investigation of plaintiff's allegations of harassment.
Doe was charged with sexually molesting Smith's minor daughter. On January 18, 2008, plaintiff pleaded guilty, under the Alford doctrine, to risk of injury to a child...and was sentenced by the Honorable Antonio C. Robaina to 7 years in jail, which execution was suspended, and 10 years probation. At the time of sentencing, a condition of probation was that plaintiff undergo sexual offender evaluation and treatment. Judge Robaina specifically explained to plaintiff that, "Part of the [sexual offender] treatment may require you to admit outside of the context of the Alford Doctrine the behavior that the allegations here state that you engaged in."...Judge Robaina further canvassed the plaintiff, inquiring, "And you understand that if you don't comply with that treatment, it can give rise to a violation of your probation. Do you understand that, sir?", to which plaintiff responded, "yes".
As noted, after being deposed in his civil action against UConn, Doe contended that the deposition will have an in terrorem effect on his pursuit of his case, given that disclosure to the probation officer of certain facts of the case could subject him to criminal prosecution for violation of his probation. Specifically, he was
concerned that his deposition denials of engaging in the criminal conduct, if known to the probation officer, could lead to a probation violation charge. In an effort to avoid the deposition, plaintiff offer[ed] to stipulate (1) to the authenticity of the probation records and (2) that there [wa]s a discrepancy between the statements plaintiff...made as a part of his sexual offender treatment and the statements made under oath in this case.
In addressing this argument, the United States District Court for the District of Connecticut found that
The relationship between a probation officer and probationers is a unique one, requiring a significant degree of trust between the offender and his or her officer, in order to successfully accomplish the goals of the probation. So much so, that some jurisdictions recognize a privilege between probation officers and probationers. Michigan recognizes a limited privilege which attaches to all communications made within the scope of the probation officer's duties....Similarly Wyoming and South Carolina protect as privileged all information and data obtained in the discharge of official duties by probation and parole agents....South Carolina's privilege, as interpreted by the state's highest court, goes as far as prohibiting a probationer's statements as admissions in court for any purpose, including impeachment.
The court then acknowledged that "[n]either Connecticut nor the federal rules of evidence recognize a privilege between probation officer and probationer." That said, the court then found that "this court has the power to prevent disclosure of information and 'make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including...that the disclosure or discovery not be had.'" And the court both found that an extended deposition of the probation officer would place a serious burden on the time-strapped officer and have the chilling effect on the plaintiff's case conveyed by plaintiff's counsel. Therefore, the court reached the following conclusion:
Balancing the liberal rules of discovery against the undue burden to the probation officer and potential oppressive consequences to plaintiff, the Court will allow a deposition of no more than 2 hours, limited to statements made by the plaintiff to the probation officer regarding emotional distress suffered by plaintiff as a result of his probation, reasons for leaving UConn, or other topics related to his treatment, probation, family life, work life, health and economic situation, which were either memorialized in probation documents or which the probation officer recollects. Given the cumulative nature of any potential testimony from the probation officer regarding plaintiff's inconsistencies at the deposition and the potential harm to plaintiff, the defendant will not be permitted to show or reveal to the probation officer plaintiff's deposition statements in any way. Defendant may show the probation officer the amended complaint, as it is a public document. Plaintiff shall stipulate in writing to the authenticity of the probation records and to the inconsistencies in his deposition testimony.