EvidenceProf Blog

It's In My Report: 9th Circuit Finds Police Report Insufficient To Prove Conviction Fell Under Rule 609(a)(2)

Federal Rule of Evidence 609(a)(2) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:...

for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

Obviously, for certain crimes involving crimen falsi such as perjury, embezzlement, false pretenses, and larceny by trick, it is clear that the porsecution has to prove a dishonest act or false statement to secure a conviction, making such a conviction per se admissible to impeach under Rule 609(a)(2). But let's say that you have a crime such as larceny or robbery that can be accomplished through violent or deceptive means. If a party wants to use such a conviction to impeach a witness under Rule 609(a)(2), how does it go about establishing that the prosecution had to prove a dishonest act or false statement to secure the conviction. According to the opinion of the Ninth Circuit in United States v. David, 639 Fed.Appx. 639 (9th Cir. 2009), using a police report is not a proper method.

Prior to 2006, Federal Rule of Evidence 609(a)(2) deemed convictions that were not more than 10 years old per se inadmissible to impeach as long as the underlying crime “involved dishonesty or false statement.” For instance, assume that a defendant called the victim and asked for his help in fixing a television that was not broken as a ruse so that the defendant could kill the victim when he arrived at his house. Because the defendant’s murder of the victim “involved dishonesty or false statement,” it would be per se admissible to impeach him at a subsequent trial held in the 10 years following his release. 

In 2006, Rule 609(a)(2) was amended to preclude such findings. According to the Advisory Committee,

The amendment provides that Rule 609(a)(2) mandates the admission of evidence of a conviction only when the conviction required the proof of (or in the case of a guilty plea, the admission of) an act of dishonesty or false statement. Evidence of all other convictions is inadmissible under this subsection, irrespective of whether the witness exhibited dishonesty or made a false statement in the process of the commission of the crime of conviction. Thus, evidence that a witness was convicted for a crime of violence, such as murder, is not admissible under Rule 609(a)(2), even if the witness acted deceitfully in the course of committing the crime.

The Advisory Committee noted that this change is consistent with the Conference Committee Report accompanying the original Federal Rule of Evidence 609, which stated

That by “dishonesty and false statement” it meant “crimes such as perjury, subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the [witness's] propensity to testify truthfully.”

In other words, Rule 609(a)(2) now only applies to these crimen falsi crimes and other crimes such as larceny by trick “in which the ultimate criminal act [i]s itself an act of deceit." Conversely, in the murder example from above, because murder is not an act of deceit, the witness’s murder conviction would not be covered by Rule 609(a)(2). This makes sense because the prosecution in that murder case did not have to prove the defendant’s lie to convict him or murder; it merely had to prove that the defendant killed the victim (with the requisite mens rea).

But what if the witness’s conviction is for a crime such as simple larceny, which might or might not involve dishonesty? According to the Advisory Committee,

Where the deceitful nature of the crime is not apparent from the statute and the face of the judgment—as, for example, where the conviction simply records a finding of guilt for a statutory offense that does not reference deceit expressly—a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions to show that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false statement in order for the witness to have been convicted.

For instance, in Sanders v. Ritz-Carlton Hotel Co., LLC, 2008 4155635 (S.D.N.Y. 2008), the defendants sought to impeach the plaintiff through, inter alia, his prior conviction for participation in a RICO enterprise. While RICO crimes can involve deceit or force, the court found that the defendant’s conviction was admissible under Rule 609(a)(2) because the indictment in that case stated that “the enterprise involved a variety of fraudulent schemes, including…submitting fraudulent accident claims to insurance companies.”

This takes us to David. In David, Kelly David was charged with conspiracy to defraud the IRS and aiding and assisting in the filing of false tax returns. At trial, the prosecution impeached him under Rule 609(a)(2) with evidence of his prior conviction for misdemeanor theft, which is a crime when a person "shall feloniously steal, take, carry, lead, or drive away the personal property of another." The prosecution proved that this crime involved a dishonest act or false statement through a police report. The report stated that David had a scheme of making false credits on his American Express credit card. These credit card entries did not correspond to any actual purchase of merchandise from Neiman Marcus Neiman Marcus. Rather, they listed fictitious persons as having returned merchandise to the store, the proceeds from which David would convert to his own use.

After he was convicted, David appealed, claiming that the district court erred by deeming his prior conviction admissible under Rule 609(a)(2). The Ninth Circuit partially agreed, citing the Advisory Committee's Note for the proposition that the facts making a conviction fall under Rule 609(a)(2) "must come from 'information such as an indictment, a statement of admitted facts, or jury instructions.'" That said, the Ninth Circuit found that "David's blanket statement on direct examination that he 'would have never told anyone to falsify a document' opened the door to impeachment with details regarding a prior conviction involving the falsification of receipts to steal money from a former employer." 

-CM 

Best Evidence?: 1st Circuit Asserts That Fairness Exception To Rule 1003 Only Applies In Cases Of Fraud/Manipulation

Federal Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

So, what circumstances make it unfair to admit the duplicate? According to the recent opinion of the First Circuit in Asociacion De Periodistas De Puerto Rico v. Mueller, 2012 WL 1699915 (1st Cir. 2012), the answer is "not many."

In Mueller, several journalists brought claims for damages 

and injunctive relief against FBI agents, who the journalists allege used excessive force against them during the execution of a search warrant at an apartment complex in San Juan, Puerto Rico.

After the district court granted the agents' motion for summary judgment dismissing the complaint, claiming, inter alia, that the court erred by relying upon video footage of the events in question. Specifically, the plaintiffs claimed, inter alia, that the footage was inadmissible under the Best Evidence Rule because

language in an advisory committee note creates an exception for copies that leave out important material. See Fed.R.Evid. 1003 advisory committee's note....Here they say that the videos are incomplete because of the absence of footage in one video clip showing the entrance of journalists into the complex, and the absence in another clip of certain use of pepper spray.

The language in the Advisory Committee's Note is as follows:

Other reasons for requiring the original may be present when only a part of the original is reproduced and the remainder is needed for cross-examination or may disclose matters qualifying the part offered or otherwise useful to the opposing party.

But according to the First Circuit, the plaintiffs arguments did not

show that the videos are inaccurate or incomplete in the incidents that they depict or that taken together the tapes fail to include such footage of the entrance of reporters or the use of pepper spray. The exception alluded to by the plaintiffs is for extreme situations where there is reason to suspect extensive prejudicial manipulation...or fraud,... and the plaintiffs' objections about the videos do not rise to such a level.

It seems to me that the First Circuit is creating a manipulation/fraud requirement out of cloth. And it seems to me that this requirement is nonsensical. Here is the portion of my Best Evidence Rule Chapter for the eLangdell Project dealing with this exception:

The second exception contained in Rule 1003 applies where only part of an original document or recording is reproduced in a duplicate, and the remainder is needed for some purpose cross-examination. Courts have consistently found that the second exception contained in Rule 1003 applies when duplicates fail to fully reproduce important or critical parts of an original document or recording. Such was the case in Amoco Production Co. v. United States, 619 F.2d 1383 (10th Cir. 1980), in which the Tenth Circuit found that the district court properly excluded the photocopy of a deed that did not reproduce the reservation clause.

There was no allegation in Amoco Production Co. that the party seeking to introduce the photocopy of the deed engaged in manipulation or fraud. Instead, it was accidental that the reservation clause was not photocopied. Of course, that didn't matter because the language of Federal Rule of Evidence 1003 focuses on fairness, not fraud. Why should it matter that the proponent of a photocopy of a deed, letter, contract, etc. fails to reproduce critical portions of the subject writing in good or bad faith. If the excluded portions would make it unfait to admit the photocopy, the court should exclude it, regardless of the mental state of the proponent.

So, should the district court have excluded the videos? I don't know. What I do know is that the journalists were claiming excessive force and that the copies of the videos did not reproduce the officers using pepper spray. It seems to me that the pepper spray portion might have been critical to the journalists' claims, but it is tough to say without seeing the videos.

-CM

Deal Or No Deal?: 8th Circuit Prevents Defendant From Presenting Evidence That She Rejected A Plea Bargain

Pursuant to Federal Rule of Evidence 410(4),

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...

a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

So, evidence of a statement made during plea discussions "is not admissible against the defendant who made the plea or participated in the plea discussions." But is evidence of such a statement admissible on behalf of the defendant who made the plea or participated in the plea discussions? According to most if not all courts, including the Eighth Circuit in its recent opinion in United States v. Alexander, 2012 WL 1660944 (8th Cir. 2012), I explain why opinions such as Alexander no longer make sense, assuming that they ever did.

In Alexander, Meggan Alexander was convicted of one count of knowingly making false statements in connection with a loan offered for insurance by the Department of Housing and Urban Development and three counts of knowingly making false statements for the purpose of influencing a financial institution insured by the Federal Deposit Insurance Corporation. After she was convicted, Alexander appealed, claiming, inter alia, that the district court abused its discretion in failing to admit evidence that she rejected a plea agreement.

The Eighth Circuit quickly dispensed with this argument, finding that in United States v. Verdoorn, 528 F.2d 103, 107 (8th Cir. 1976), "we concluded that “government proposals concerning pleas should be excludable” in order to encourage '[m]eaningful dialogue between the parties.'" Specifically, in Verdoorn, the Eighth Circuit held that "[m]eaningful dialogue between the parties would, as a practical matter, be impossible if either party had to assume the risk that plea offers would be admissible in evidence."

In 1976, this opinion might have made sense despite the plain lanuage of Federal Rule of Evidence 410(4) only preventing evidence of plea statements from being admitted against defendants. But this opinion makes no sense today. In United States v. Mezzanatto, 513 U.S. 196 (1995), the defendant brought a constitutional challenge to the prosecutor's use of an impeachment waiver. Basically, the prosecutor forced the defendant to sign a waiver indicating that should his case proceed to trial, the prosecutor could impeach his trial testimony with his contradictory statements during plea discussions. In other words, by signing the waiver, the defendant partially waived the protections of Federal Rule of Evidence 410(4).

In challenging the enforceability of the waiver, one of the defendant's arguments was the same as the Eighth Circuit's argument in Verdoorn: If such waivers could be enforced, it would have a chilling effect on plea bargaining. In other words, in effect, such waivers force the defendant to, in the words of the Eighth Circuit, "assume the risk" that his statements during plea discussions would be admissible in evidence.

In rejecting this and other arguments, the Supreme Court in Mezzanatto held, inter alia, that

The Rules provide that statements made in the course of plea discussions are inadmissible "against" the defendant, and thus leave open the possibility that a defendant may offer such statements into evidence for his own tactical advantage. Indeed, the Rules contemplate this result in permitting admission of statements made "in any proceeding wherein another statement made in the course of the same ... plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it."...Thus, the plea-statement Rules expressly contemplate a degree of party control that is consonant with the background presumption of waivability.

So, where is the party control? In 1995, we had the Supreme Court uphold impeachment waivers in large part because Federal Rule of Evidence 410 "leave open the possibility that a defendant may offer [plea discussion] statements into evidence for his own tactical advantage." And yet courts simply haven't looked at this language and reversed their prior precedent which had held that defendants can't present evidence of rejected plea bargains. This is the basic point of my article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains.

And Mezzanatto isn't even he end of the story. Since Mezzanatto, a number of circuits have approved of rebuttal waivers, under which a prosecutor can use a defendant's plea discussion statements to rebut any contradictory position asserted by the defendant at trial, whether that position takes the form of the defendant's testimony, the testimony of other witnesses, exhibits, or even defense counsel's opening statements. Moreover, a number of circuits have approved of case-in-chief waivers, under which a prosecutor can use a defendant's plea discussion statements as part of his case-in-chief, regardless of whether the defendant presents and evidence or testimony at trial.

These latter waivers are increasingly popular, meaning that defendants are increasingly being asked to assume the very risks that the Eighth Circuit found would be fatal to plea bargaining in Verdoorn. The argument from this is then two-fold. If, as statistics show, such waivers are not fatal to plea bargaining, why not adhere to the plain language of Federal Rule of Evidence 410(4) and allow defendants to present evidence of rejected plea bargains. If waivers haven't gummed up the works, why would such a procedure throw a monkey wrench in the plea bargaining system. And, if such waivers are in fact gumming up the works, maybe we should allow defendants to testify that they rejected plea bargains, but this would also mean that we should enforce waivers of Rule 410 rights.

-CM

Can't Stop The Music, Take 3: Supreme Court Of California Rejects Challenge To Victim Impact Video With Flashbacks & Special Effects

Back in 2007, I posted an entry about the Supreme Court of California rejecting a Constitutional challenge to the admission of a 20-minute victim impact video with a montage of photographs of the victim's life that was accompanied by her mother's narration and Enya and Celine Dion music. In 2008, I followed up on that post with a second post concerning the United Supreme Court's refusal to grant cert in the case despite two strongly written dissents. Well, I just realized that last year, the California Supremes addressed a similar challenge to a similar victim impact video in People v. Garcia, P.3d 751 (Cal. 2011). So, was the result the same?

In Garcia, Randy Garcia was convicted of the first degree murder of Joseph Finzel, the attempted premeditated murder of FInzel's wife, L., and related crimes. During sentencing,

Following L.'s testimony, the jury watched an 11–minute 45–second videotape. The videotape shows L. from the shoulders up, talking in front of a plain gray backdrop. Her voice also is heard describing video clips and still photographs that appear on the screen. Both the narration and images concern the joy L. and Joseph shared as a couple (e.g., getting married, raising children, relaxing at home, and enjoying the outdoors), and the loss she experienced from his death (e.g., emotional turmoil, estrangement from Garrett, and a gravesite visit with Brinlee on Christmas Day).

The videotape departs from the foregoing format in only two respects. First, at the beginning, white lettering silently appears on a black screen, referring to an "intruder" who entered L. and Joseph's home on Mother's Day 1993, and who forever "altered" their lives and the lives of family and friends. Second, at the end of the videotape, a song plays softly in the background for 80 seconds, with lyrics about a "hero [who] goes free" and a " villain [who] goes to jail." More images of the Finzels appear at that time, including one of Joseph as a boy sleeping with a puppy.

Garcia was given the death penalty. After he was sentenced, Garcia appealed, claiming that the video was so unduly prejudicial as to render the sentencing hearing fundamentally unfair. Specifically, Garcia claimed that

the trial court erred in admitting the videotape because such evidence contained "special effects" that prejudiced the jury against him. He complains on appeal, much as he did at trial, about "repeated flashbacks to scenes from Jo[seph] and L[.]'s wedding, a photo montage, including pictures of Jo[seph] as a young boy, one with him fast asleep on a couch next to a sleeping puppy; music; lyrics; echo effects; and voiceovers."

The Supreme Court of Califonia disagreed, initially noting that

Videotapes may be used for victim impact purposes in capital penalty trials. We have said, however, that trial courts must take care in admitting such evidence, because "the medium itself may assist in creating an [undue] emotional impact upon the jury."... Under this case-by-case approach, we have had little difficulty upholding videotaped tributes to murder victims. 

The court then found the Kelly case that I previously blogged about to be especially instructive:

Kelly seems highly relevant here. There, the defendant was convicted of robbing, raping, and murdering a 19–year–old woman, Sara, who was a Native American and who had been adopted as an infant into a Caucasian home. At the penalty phase, Sara's mother described Sara's life and the pain her death had caused family and friends. Over defendant's objection, the prosecution also played a 20–minute videotape that Sara's mother had prepared. It consisted of video clips and still photographs spanning Sara's life, with the voice of her mother calmly narrating events in the background. The music of Enya played through most of the video, but the volume was soft and the lyrics were faint. On screen, Sara was seen singing with a school group, including the song, "You Light Up My Life." Other images showed her swimming, horseback riding, and interacting with family and friends. Near the end of the videotape, Sara's mother stated that she does not dwell on the "terrible crime."...The video ended with a view of Sara's gravestone, followed by a clip of people riding horseback in Alberta, Canada—the "kind of heaven" in which Sara was said to belong....

Rejecting the defendant's contrary claims, Kelly held that that because the presentation was relevant and not unduly emotional, it was permissible....We noted that even though the mother's testimony and the videotape covered similar ground, they supplemented, rather than duplicated, one another. The reason was that the videotape "humanized" Sara in a way that live testimony could not do...."In particular, the videotape helped the jury to see that defendant took away the victim's ability to enjoy her favorite activities, to contribute to the unique framework of her family...and to fulfill the promise to society that someone with such a stable and loving background can bring."...

At most, only two questionable elements emerged—the background music by Enya and the horseback-riding scene from Canada. Kelly  made clear that such sentimentality is not impermissible as long as it helps show "what [the murder victim] was like."...We acknowledged that the challenged features seemed to play a mostly "theatric" role in Sara's case because they imparted little “additional relevant material."...However, there was no reason to decide whether the trial court abused its discretion in admitting the videotape with these features intact, because any such error was harmless beyond a reasonable doubt. In making this point, Kelly relied on the routine use of music and special effects in videotapes, the factual nature of Sara's videotape overall, and the aggravating nature of the penalty evidence as a whole.

The California Supremes then found that

No different result is warranted here. After reviewing the videotape, we agree with the trial court, which conducted its own careful analysis, that there is nothing objectionable about the manner in which the videotape was edited and prepared. The "flashbacks" to which defendant objects "were simply photographs being shown," in the words of the trial court. The complained-of "voiceover" is L. speaking in a somber, almost flat, tone about scenes from her everyday life with Joseph. For the reasons discussed above, the images themselves are factual and relevant. Though L. is seen wiping tears away while describing some of these events, she never loses her composure on tape.

As noted, two audio features caught the trial court's attention—the echo effect accompanying the phrase "until death do us part" in the Finzels' wedding ceremony, and the "hero/villain" song that played during the photo montage at the end of the videotape. Though more dramatic than factual, these features seem fairly unobtrusive in context, and do not fundamentally alter the subdued tone of the presentation. In any event, we need not decide whether the contrary is true, because any error was clearly harmless. For the reasons set forth in Kelly..., and described above, there was "no reasonable possibility these portions of the videotape affected the penalty determination

-CM

Make Me Whole, Take 8: Court Of Appeals Of Minnesota Yet Again Badly Botches The Felony Impeachment Analysis

Like its federal counterpart, Minnesota Rule of Evidence 609(a) 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 on seven previous occasions about how Minnesota courts continually bungle the Rule 609(a) analysis (here, here, here, here, here, here, and here), and the recent opinion of the Court of Appeals of Minnesota in State v. McNeal, 2012 WL 1658819 (Minn.App. 2012), is the latest entry into the state's hall of shame.

In McNeal, Mardi McNeal was charged with third-degree criminal sexual conduct. At trial, after McNeal testified, the court allowed the prosecution to impeach him with evidence of his November 2001 conviction for first-degree aggravated robbery. This led the Court of Appeals of Minnesota to apply the five factor test that most courts apply which considers:

(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; (4) the importance of defendant's testimony; and (5) the centrality of the credibility issue. 

Under the first factor, a court in any other state would have found that the aggravated robbery conviction had little impeachment value because it was a conviction for a crime of violence. But the Court of Appeals of Minnesota instead applied Minnesota's whole-person rationale, under which every prior conviction has sufficient impeachment value to tilt the first factor in favor of admission because every conviction allows the jury to see the whole person before it on the witness stand. As usual, the court gave a perfunctory shout out to the "widespread criticism of the whole-person rationale" before yet again applying it.

Under the second factor, McNeal's prior conviction was about seven years old because his present trial was in 2008. Again, almost any other court would have found that a seven year-old conviction was sufficiently remote to have this factor weigh against admissibility (or at least make this factor neutral. But the Court of Appeals of Minnesota instead found that "[b]ecause the prior offense was within the 10–year period recognized under the rule, the prior offense was timely, and this factor weighs in favor of admission." 

In doing so, the court yet again displayed a fundamental misunderstanding of the interplay between Minnesota Rule of Evidence 609(a) and Minnesota Rule of Evidence 609(b). The latter rule deems evidence of convictions that are more than ten years old almost never admissible to impeach the credibility of a witness. This does not mean, however, that once that ten year threshold is crossed, a conviction is suddenly timely, making the second factor favor admissibility. Instead, seven years is plenty of time for a defendant to become rehabilitated, and the man that a defendant was seven years ago tells us little about the man that he is today. Again, the Court of Appeals of Minnesota missed the mark.

The court was correct, though, that aggravated battery and criminal sexual conduct are not at all similar conduct, meaning that the third factor favored admission. But again, the court badly botched analysis of the fourth and fifth factors. The traditional thinking under the fourth factor is that evidence of a defendant's prior conviction becomes more prejudicial as his testimony becomes more important. The worry here is that if the court deems evidence of the conviction admissible, the defendant won't testify and won't be able to defend himself. Of course, that means that the typical thinking is that evidence of a defendant's prior conviction becomes more probative as  his testimony becomes more central to the resolution of the case. This is because jurors need to be able to assess the trustworthiness of the defendant on the witness stand.

What this means, is that the correct analysis in the vast majority of cases (because a defendant's testimony will almost always be important and his credibility will almost always be central) is that the fourth and fifth factors counterbalance, with the fourth factor favoring exclusion and the fifth factor favoring admission. But, according to the Court of Appeals of Minnesota, "If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions."

So, breaking down the court's analysis, in Minnesota, factor one will always favor admission, factor two will ostensibly always favor admission if the prior conviction is 10 or less years old, and factors four and five will always favor admission as long as the defendant's testimony is important and his credibility is central to the resolution of cases. In other words, in nearly all cases, a defendant in Minnesota will not be able to preclude the prosecution from impeaching him with evidence of a prior conviction.

-CM

 

Hawaii 5-0: Supreme Court Of Hawai'i Seemingly Errs in Deeming Police Report Admissible As Recorded Recollection

Like its Federal Rule of Evidence 803(5), Hawai'i Rule of Evidence 802.1(4) provides an exception to the rule against hearsay for 

A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

In its recent opinion in State v. Keohokapu, 2012 1701368 (Hawai'i 2012), the Supreme Court of Hawai'i found all of the elements of the elements of this exception satisfied. I think that one was missing.

In Keohokapu, 

On the night of June 7, 2008, Petitioner, Petitioner's wife, Kauilani Keohokapu (Kauilani), and Petitioner's brother went to club "Komo Mai." Decedent Steven Wilcox and his friend Robin Gregory also were at the club. At some point, Petitioner became upset because Gregory was allegedly staring at Kauilani. Petitioner left the club and went outside to his car. Kauilani followed Petitioner, and the two allegedly began to argue. Later, Petitioner's brother came out of the club to the car, and it appears that the three argued.

During the argument, Petitioner's brother grabbed Kauilani's arm and pushed her away from the car. At that moment, Wilcox came out of the club, approached the car, and said something to the effect of, "That's one female." Petitioner, who was sitting in the car, got out and said, "[T]hat's my wife." Petitioner and Wilcox then began to fight. At one point, witnesses stated that they saw Petitioner with a metal object or a knife in his hand. Sometime during the fight, Petitioner and Wilcox collided, and Petitioner stabbed Wilcox in the chest. Petitioner then went back to his car and drove away. On June 8, 2008, Wilcox died as a result of the stab wound.

After the petitioner was convicted of manslaughter, the State called his wife at the sentencing hearing.

Respondent then requested Kauilani to review a police report from July 13, 1996 involving an...incident of domestic violence. Kauilani related that she had written the report the day after the incident, and that her signature was on both pages of the report. Respondent inquired whether the report helped Kauilani remember the events of July 13, 1996. Petitioner's counsel objected, arguing that foundation was lacking for admitting the statement in evidence. The court overruled the objection. Respondent asked Kauilani whether she remembered Petitioner head-butting and pulling her hair on July 13, 1996. Kauilani replied she did not because "this is 2009."

Respondent then attempted to move the entire report into evidence, and the court asked both counsel to approach the bench. Petitioner's counsel objected, contending that the entire document should not be admitted into evidence and that Respondent had not laid a proper foundation for Kauilani's testimony. The court overruled the objection, concluding that Respondent "laid sufficient foundation for past recollection recorded. And under the rule you read it into evidence." 

After the petitioner was sentenced to life with the possibility of parole, he appealed, claiming, inter alia, that the trial court erred in deeming the report admissible as a recorded recollection under Rule 802.1(4). The Supreme Court of Hawai'i disagreed, finding that

although Kauilani did not sign her July 13, 1996 statement under penalty of perjury, the statement satisfies the criteria for the past recollection recorded exception. Kauilani testified that she remembered the incident on July 13, or at least "the part with me," but that she could not remember the specific allegations of abuse that were described in the statement. She also testified that the statement was in her writing, contained her signature, and that she wrote the report the day following the incident. Thus, Respondent established that Kauilani had personal knowledge of the July 13 incident, that her statement was prepared when it was fresh in her memory (the day after the incident), that it accurately reflected her knowledge, and that she currently had insufficient recollection to testify fully and accurately.

Okay, so clearly (1) Kauilani once had knowledge about the July 13th incident, (2) she now had insufficient recollection to be able to testify fully and accurately, (3) she made or at least adopted the report, and (4) the report was made or adopted when the incident was fresh in her memory. But where is the evidence that the report reflected her once existing knowledge correctly? As the court noted, the statements wasn't signed under the penalty of perjury. And it wasn't as if Kauilani remembered the specific allegations of abuse but forgot their details; she didn't even "remember the specific allegations of abuse that were described in the statement. Finally, there is no indication from the opinion that Kauiliani stood by the accuracy of her statement of testified that she generally records/reports things accurately. Any one of these things likely would have been enough to establish the accuracy of the report, but, in the absence of any of them, I don't see how the court found that the report was admissible under Rule 802.1(4).

-CM

The Vermonster: Supreme Court Of Vermont Finds Exception To Confidential Marital Communications Privilege Applied In Assault Case

Like many states, Vermont has a privilege for confidential marital communications. Vermont's privilege is housed in Vermont Rule of Evidence 504(b), which provides that

Any person has a privilege to refuse to disclose and to prevent his spouse or any other person from disclosing any confidential statement, conversation, letter, or other confidential communication between such person and his spouse occurring while they were lawfully married, and to refuse to testify and prevent his spouse from testifying in any case as to any matter which in the opinion of the court would lead to a violation of marital confidence. This privilege exists whether or not the person and spouse are still lawfully married at the time at which the spouse's testimony is to be given.

And, like many states, Vermont has an exception to this privilege in cases in which a spouse is charged with a crime against the other spouse or the couple's children. As is made clear by the recent opinion of the Supreme Court of Vermont in State v. Kolibas, 2012 WL 1738979 (Vt. 2012), Vermont's exception is broader.

In Kolibas, Robert Kolibas was

the father of twelve-year-old A.K., who invited her thirteen-year-old friend, T.F., to a sleep-over date. That evening, defendant made blended fruit drinks known as "smoothies" for the two girls, his wife, and himself. At trial, defendant testified that he placed one Ambien (a sleep aid) and half of a Valium (an anti-anxiety medication) into his wife's drink because she was "stressed out" and he "didn't want her bothering [him]." Defendant's wife testified that after defendant left the kitchen to bring two smoothies to the girls, she poured her part of her drink into defendant's cup.

The girls drank the smoothies as they lay on a futon in A.K.'s bedroom and watched a movie. T.F. testified that the smoothie did not taste normal and described what happened as follows. She soon felt dizzy and tired, and fell asleep in about thirty minutes. T.F. remembered waking up and seeing defendant in her room. She fell back asleep and woke to defendant touching her chest. She again fell back asleep and awoke as defendant pulled down her pants and touched her vagina. She fell back to sleep and awoke as defendant pulled her pants back up, kissed her on the cheek, and said, "I'm sorry" and "Don't tell anybody."She fell asleep for a final time, and when she awoke, called her mother to come pick her up.

Kolbias was eventually charged with lewd and lascivious conduct for his acts upon T.F., and two counts of aggravated assault for drugging T.F. and A.K.

While incarcerated awaiting trial, defendant sent his wife a letter in which he said he had put Valium and Ambien in her smoothie because he wanted her to relax and go to sleep. He went on to say he got confused while making the smoothies, and "somehow I mixed up the damn smoothies and [T.F.] wound up with yours! Somehow it got into all the smoothies...even mine, it was all in the same blender." In the letter he explained that after the girls had gone to sleep, he heard noises upstairs and went to investigate and to collect the empty smoothie cups. Carrying a flashlight, he entered the girls' room and discovered that T.F.'s pants were off and she was masturbating. He claims he put T.F.'s pants back over her feet, and then she pulled them up herself. Finally, he wrote that he knelt down to tell her that he would not tell anyone what had happened, and T.F. tried to kiss him. He then left the room.

Before trial, Kolbias moved to suppress the letter as a confidential communication between husband and wife protected by Vermont Rule of Evidence 504(b). The trial court disagreed (as did the Supreme Court of Vermont on appeal), "holding that while the letter would normally be protected by the marital privilege, the exceptions found in Vermont Rules of Evidence 504(d)(2), (3), and (4) removed the letter from this privilege." Specifically, Vermont Rule of Evidence 504(d) provides that

There is no privilege under this rule in a proceeding in which one spouse is charged with a crime, or alleged to have committed a tort, against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person in the course of committing a crime against any of them. There is also no privilege under this rule in any other civil proceeding in which the spouses are adverse parties; or, in the discretion of the court, in any other proceeding where the interests of a child of either are involved.

This language shows the broadness of Vermont's exception. Now, Kolbias was charged with a crime against his daughter, so Rule 504(d)(2) applied. But even if he were not charged with this crime, Rule 504(d)(4) applied because he was charged with a crime against a third person -- T.F. -- in the course of committing a crime against his wife and/or daughter. I'm not sure why the court cited Rule 504(d)(3) because it seems a stretch to claim that T.F. was "residing" with Kolbias, but you can see the utility of 504(d)(3) in cases in which the victim resides with the defendant but is not a relative (e.g., if T.F. were staying at the house for the summer).

-CM