EvidenceProf Blog

Outsourcing Blues

It's not evidence law related, but here's a guest post I did over at The Faculty Lounge: Vince Vaughn, Owen Wilson, Interns, Outsourcing, and Why the United States Should Enact a National Film Incentive. Many thanks to Tim Zinnecker for posting it.

-CM

Able To Waive Attorney-Client Privilege In A Single Disclosure: 9th Circuit Rejects Selective Waiver Doctrine In Superman Case

In its 1977 opinion in Diversified Industries, Inc. v. Meredith, 572 F.2d 596 (8th Cir. 1977), the Eighth Circuit adopted the selective waiver doctrine, which allows corporations seeking to use a confidentiality agreement to disclose to the government information protected by the attorney-client privilege and still maintain that privilege against all others. Here's the relevant language from the court's opinion:

We finally address the issue of whether Diversified waived its attorney-client privilege with respect to the privileged material by voluntarily surrendering it to the SEC pursuant to an agency subpoena. As Diversified disclosed these documents in a separate and nonpublic SEC investigation, we conclude that only a limited waiver of the privilege occurred....To hold otherwise may have the effect of thwarting the developing procedure of corporations to employ independent outside counsel to investigate and advise them in order to protect stockholders, potential stockholders and customers.

But since Meredith, every other federal circuit to address the issue has rejected the selective waiver doctrine:

In re Qwest Commc'ns Int'l, 450 F.3d 1179, 1197 (10th Cir.2006); Burden–Meeks v. Welch, 319 F.3d 897, 899 (7th Cir.2003); In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 295 (6th Cir.2002); United States v. Mass. Inst. of Tech., 129 F.3d 681, 686 (1st Cir.1997); Genentech, Inc. v. United States Int'l Trade Comm'n, 122 F.3d 1409, 1416–18 (Fed.Cir.1997); In re Steinhardt Partners, L.P., 9 F.3d 230, 236 (2d Cir.1993); Westinghouse Elec. Corp. v. Republic of Philippines, 951 F.2d 1414, 1425 (3d Cir.1991); In re Martin Marietta Corp., 856 F.2d 619, 623–24 (4th Cir.1988); Permian Corp. v. United States, 665 F.2d 1214, 1221 (D.C.Cir.1981).

After In re Pacific Pictures Corp., 2012 WL 1640627 (9th Cir. 2012), a case involving D.C. Comics suing the heirs of the creators of Superman and others, you can now add the Ninth Circuit to their ranks.

The Man of Steel was created by writer Jerome Siegel and illustrator Joe Shuster, and, around the turn of the millennium, Marc Toberoff, a Hollywood producer and attorney, 

approached the[ir] Heirs with an offer to manage preexisting litigation over the rights Siegel and Shuster had ceded to D.C. Comics. He also claimed that he would arrange for a new Superman film to be produced. To pursue these goals, Toberoff created a joint venture between the Heirs and an entity he owned. Toberoff served as both a business advisor and an attorney for that venture. 

While the preexisting litigation was pending, Toberoff hired a new lawyer to work for one of his companies. This attorney remained in Toberoff's employ for only about three months before allegedly absconding with copies of several documents from the Siegel and Shuster files. Unsuccessful in his alleged attempt to use the documents to solicit business from the Heirs, this attorney sent the documents to executives at D.C. Comics. While he did not include his name with the package, he did append a cover letter, written in the form of a timeline, outlining in detail Toberoff's alleged master plan to capture Superman for himself.

This happened no later than June 2006, and the parties have been battling over what should be done with these documents ever since. Rather than exploiting the documents, D.C. Comics entrusted them to an outside attorney and sought to obtain them through ordinary discovery in the two ongoing lawsuits over Superman. Considering every communication he had with the Heirs to be privileged—regardless of whether the communication was in his capacity as a business advisor or an attorney—Toberoff resisted all such efforts. Ultimately, in April 2007, a magistrate judge ordered certain documents, including the attorney's cover letter, turned over to D.C. Comics. A few months later, Toberoff at long last reported the incident to the authorities (specifically the Federal Bureau of Investigation). In December 2008, Toberoff finally produced at least some of the documents.

Thereafter, in 2010, D.C. Comics filed an action against Toberoff, the heirs, and three entities in which Toberoff owned a controlling interest, claiming that Toberoff interfered with its contractual relationships with the heirs. The attorney's cover letter formed the basis of the lawsuit and was incorporated into the complaint, with the defendants claiming that the letter was covered by attorney-client privilege. 

About a month after the suit was filed, Toberoff asked the Office of the United States Attorney for the Central District of California to investigate the theft. In response to a request from Toberoff, the U.S. Attorney's Office issued a grand jury subpoena for the documents as well as a letter stating that if Toberoff voluntarily complied with the subpoena the Government would "not provide the...documents ... to non-governmental third parties except as may be required by law or court order." The letter also confirmed that disclosure would indicate that "Toberoff has obtained all relevant permissions and consents needed (if any) to provide the...documents...to the government." Armed with this letter, Toberoff readily complied with the subpoena, making no attempt to redact anything from the documents.

Immediately thereafter, D.C. Comics requested all documents disclosed to the U.S. Attorney, claiming that the disclosure of these unredacted copies waived any remaining privilege, and a magistrate agreed, finding that a party may not selectively waive attorney-client privilege. Toberoff and company thereafter sought to overturn the magistrate's order through a writ of mandamus, which led to the Ninth Circuit's opinion in Pacific Pictures.

In Pacific Pictures, the Ninth Circuit noted that it had twice deferred judgment on the issue of whether to endorse the selective waiver doctrine and acknowledged that every circuit to address the doctrine since Meredith had rejected it. The Ninth Circuit then agreed with these circuits primarily because the selective waiver doctrine

does little, if anything, to serve the public good underpinning the attorney-client privilege. That is, "selective waiver does not serve the purpose of encouraging full disclosure to one's attorney in order to obtain informed legal assistance; it merely encourages voluntary disclosure to government agencies, thereby extending the privilege beyond its intended purpose."

In reaching this conclusion, the court found comfort in the fact that since Meredith,

there have been multiple legislative attempts to adopt a theory of selective waiver. Most have failed....Given that Congress has declined broadly to adopt a new privilege to protect disclosures of attorney-client privileged materials to the government, we will not do so here.

The Ninth Circuit also rejected the alternate argument that "even if we reject selective waiver as a general matter, we should enforce a purported confidentiality agreement based upon the letter from the U.S. Attorney's Office." This argument fell on deaf ears as well because

The only justification behind enforcing such agreements would be to encourage cooperation with the government. But Congress has declined to adopt even this limited form of selective waiver. See Statement of Congressional Intent Regarding Rule 502 of the Federal Rules of Evidence, 154 Cong. Rec. H. 7817 (2008), reprinted in Fed.R.Evid. 502 addendum to comm. n subdivision (d) (noting that Rule 502 "does not provide a basis for a court to enable parties to agree to a selective waiver of the privilege, such as to a federal agency conducting an investigation"). As such, we reject such a theory here.

-CM

Snow White & The Real Huntsman: U.S. v. Dade & How Modern Depictions Of Snow White Might Change The Way Courts Use Her Name

With today's release of Rupert Sanders' directorial debut, "Snow White and the Hunstman," there have now been three pieces of pop culture in the last few months tweaking the classic fairy tale of "Snow White," with the other two being Tarsem Singh's cheeky "Mirror Mirror" and the ABC TV show "Once Upon a Time." Critics have contended that the version of Snow White played by Lily Collins in "Mirror Mirror" is a "feminist reincarnation," "both innocent and powerful, able to fight her own battles and make decisions independently." Kristen Stewart's Snow White in "Snow White and the Hunstman," has been described "as a warrior princess who saves a ravaged kingdom from an evil Queen..., after being trained by a huntsman...instructed to kill her." And Ginnifer Goodwin's Snow White in "Once Upon a Time," transported to present day, ends up engaging in an affair with a married Prince Charming. In other words, in each of these three modern retellings, the story's the same: This isn't your grandmother's Snow White. So the question becomes: As we drag Snow White into the 21st Century (literally, in the case of "Once Upon a Time"), do we change the way that we use her name as she is transformed from the essence of purity and innocence to something a good deal more complicated (and realistic)? And what effect will this have on litigation? Specifically, could we see a case like last year's United States v. Dade, 2011 WL 6301123 (D.Idaho 2011), in the next decade or so?

American case law is certainly replete with references to Snow White. Just last year, in Brown v. Entertainment Merchants Ass'n, 131 S.Ct. 2729 (U.S. 2011), the Supreme Court found that a California law prohibiting the sale or rental of "violent video games" to minors and requiring their packaging to be labeled "18" violated the First Amendment. According to Justice Scalia,

California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy."

And then there's Oden v. Norfolk Southern Railway Co., 1997 WL 842407 (N.D.Ala. 1997), in which Peggy Oden brought an age and sex discrimination action against Norfolk Southern, claiming misbehavior by superintendent Timothy Heilig. According to the court,

although Oden claim[ed] that Heilig said "mirror, mirror, on the wall" to compare Oden to the "ugly old witch" in Snow White, this court's review of the applicable fairy tale literature indicates that the character who states "mirror, mirror, on the wall." Snow White's stepmother, is neither old nor ugly, but merely evil. See white ("Though [Snow White's] stepmother was a wicked woman, she too was very beautiful, and the magic mirror told her this every day, whenever she asked it") (emphasis added). Even if Heilig may have intended such a comparison, the court cannot reasonably conclude that Title VII was intended to protect employees from comparison with villain.

But most cases that reference Snow White make the reference to emphasize the innocence and purity associated with the character. In last year's United States v. Lopez, 649 F.3d 1222 (11th Cir. 2011), the Eleventh Circuit found that the defendant

could be as innocent of the murders as Snow White and there still be probable cause to believe that the house he shared with several others contained evidence of those crimes.

Several cases, including In re Kimmell, 367 B.R. 174 (Bkrtcy.N.D.Cal.,2007), have found that "the Devil himself could effectively receive a discharge in bankruptcy if he were married to Snow White." In disparaging a defense witness's accounting of the events leading to the defendant being charged with murder, the prosecutor in People v. Ramos, 920 N.E.2d 504 (Ill.App. 1 Dist. 2009), told the jury, "And they want you to believe that, what is this, Snow White and Doc meet the drug dealers? This is preposterous." 

In analyzing Idaho Code § 32-705, which allows for the grant of a maintenance order for "the innocent spouse" under certain conditions, the Court of Appeals of Idaho in Marmon v. Marmon, 825 P.2d 1136 (Idaho App 1992), found that the term innocent spouse "does not require the fictional character and purity of Snow White." And, in In re M.M., 2008 WL 4140787 (Cal.App. 4 Dist. 2008), which involved a custody dispute, a psychiatrist found that

M.M.'s characterizations of father were "so extreme in terms of her criticisms of him and her assertions of his physical disciplining of her that her reports were not credible." This was "reflective of a 'Hitler and Snow White' mentality which reflects her mother's negative view of [father] rather than [M.M.'s] own view of him."

This last case underscores the point that we traditionally have defined Snow White by way of contrast. She is the gentle to the Queen's wicked, the pure to the Queen's tainted, the passive to the Queen's aggressive, the good to the Queen's (or Hitler's) evil. But again, in her three current incarnations, Snow White isn't lily white: She's complicated, she's troubled, she's real.

And what that means is that we might not see litigants and courts talking in the terms used in Dade in the near future. In Dade, John Dade was convicted of making threatening interstate communications, interstate stalking, interstate domestic violence, use of a firearm in relation to a violent crime, and interstate domestic violence. These convictions came in large part from the victim confiding in Bishop Huntsman (no lie) about the alleged crimes committed against her by Dade. After he was convicted, Dade filed a § 2255 motion, claiming that he received the ineffective assistance of counsel.

In pursuing that motion, Dade, inter alia,

incessantly vilified the victim's character utilizing the most derogatory terms, claimed that several people would testify regarding her immoral character, and accused her of perjury for leading the jury to believe that she was "snow white" and a member in good standing in her church. He believes that if the jury knew the "truth" about her character and that she had been "disfellowshipped" from her church, they would have not believed her testimony. 

But according to the court,

Contrary to Dade's assertions, the victim did not portray herself as "snow white." Rather, she testified that although she grew up in a Christian home, she started "doing things [she] shouldn't do," pulled away from her church, started drinking, started dating people she shouldn't have dated, married someone she "wasn't real proud of," and started dating Dade while she was still in that relationship....She testified that in 1998, she wanted to get back into her church, change her life, and repent to her bishop....She testified that she ultimately did start attending church again and that, on occasion, Dade accompanied here.

Of course, that's neither here nor there because Dade's point in making this argument was that his trial attorney was ineffective in failing to present evidence at trial of the victim having intimate relationships with other men while they were together, with the court finding such evidence inadmissible under Federal Rule of Evidence 412. According to the court,

As much as Dade has would like to make this case about the victim, it is about his conduct and not hers. Her relationships with other men—whether intimate or not—and her standing with her church were not the relevant issues. The relevant issue was whether Dade engaged in the conduct alleged in the Second Superseding Indictment. To have allowed inquiry into the victim's sexual behavior would have been prejudicial to her and of little value to Dade given the overwhelming evidence against him.

Dade was thus an interesting case and one that we might very well not see in the future in a world in which Snow White is no longer synonymous with a romanticized notion of innocence and purity.

-CM

Unimpeachable: Supreme Court Of South Carolina Finds Trial Court Conducted Incorrect Felony Impeachment Analysis

Similar to its federal counterpart, South Carolina Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

And, like most federal courts, South Carolina courts apply a five factor test for determining whether evidence of prior convcitions is admissible under Rule 609(a)(1):

(1) the impeachment value of the prior crime; (2) the point in time of the conviction and the witness's subsequent history; (3) the similarity between the past crime and the charged crime; (4) the importance of the defendant's testimony; and (5) the centrality of the credibility issue.

In State v. Howard, 720 S.E.2d 511 (S.C. 2011), the Supreme Couth of South Carolina find that the trial court badly botched its analysis of the first factor, requiring a new trial. So, what happened?

In Howard, Stacy Howard was convicted of assault and battery of a high and aggravated nature (ABHAN) after a trial in February 2007. Howard unquestionably struck his girlfriend after an argument in his truck, breaking her nose in 3 places. But, according to Howard, his girlfriend was out of control and he unintentionally hit her while attempting to get a clear view of the road. At trial, the prosecution impeached Howard with evidence of his three prior felony ABHAN convictions from December 2004, April 2004, and November 1995. Howard was released from incarceration for this earliest conviction after February 1997.

After he was convicted, Howard appealed, claiming that this impeachment was improper. In response, the Supreme Court of South Carolina remanded so that the trial court could conduct an on-the-record balancing of the aforementioned five factors. Under the first factor, 

the trial court found the impeachment value of Howard's prior convictions was "rather substantial" because Howard and the victim were the only witnesses to the assault. The trial court further found the impeachment value was heightened by Howard's repeated attacks on the victim's character over objections from the State and admonition from the court.

After balancing the first factor and the other factors, the trial court again found the prior convictions admissible to impeach Howard. Howard again appealed, claiming, inter alia, that the trial court's analysis of the first factor was misguided. The Supreme Court of South Carolina agreed and thus reversed because

the court failed to state how Howard's prior ABHANs were probative of his credibility. The trial court instead focused on Howard's character, which does not affect the impeachment value of his prior crimes. A reading of the record indicates Howard's prior convictions were admitted to show he was capable of committing the charged offense. Additionally, given the similarity between Howard's prior convictions and the offense charged, we cannot conclude Howard was not prejudiced by the admission of his prior convictions....We believe the admission of Howard's prior ABHAN convictions was more prejudicial than probative, especially in light of the offense for which he was on trial. We note that while this court previously remanded to the trial court for consideration of the [five] factors, we do not see the need for an additional remand hearing. Accordingly, we reverse the trial court's admission of Howard's prior convictions and remand for a new trial.

-CM

Kevin Costner, Kevin Reynolds, "Waterworld," "Hatfields & McCoys," & Communicated Character

With "Hatfields & McCoys," director Kevin Reynolds and star Kevin Costner have now teamed up for the most watched non-sports program in basic cable history as well as what was at the time the most expensive movie ever made: "Waterwold." Indeed, "Hatfields & McCoys" is the duo's fifth pairing, with the others besides "Waterwold" being the underrated "Fandango" (which no less than Quentin Tarrantino has called "one of the best directorial debuts in the history of cinema"), one of my two favorite Amazing Stories of the '80s (the other being Robert Zemeckis' "Go the Head of the Class"), and "Robin Hood: Prince of Thieves" (best remembered for Costner's attempt at a British accent, that Bryan Adams' song, and those POV arrow shots that really would have benefited from today's 3D). And while they're not on the level of, say, a Scorsese and De Niro, that's a pretty impressive body of work. Indeed, Reynolds' collaborations with Costner are his only real directorial efforts that have made an impact (he did co-wrote the screenplay for "Red Dawn," which we somehow were allowed to watch in elementary school in the 1980s). The only other thing that he's directed that even created a ripple was his 2002 adaptation of Alexandre Dumas' "The Count of Monte Cristo," which I only remember from its trailer with the awesome tag line, "Count on adventure. Count on intrigue."

But with "Hatfields & McCoys," Reynolds and Costner seem to have really struck a nerve and tapped into something that Americans really want to see (at least in the wake of May sweeps). And that shouldn't be surprising. The story of the Hatfields and the McCoys, and indeed, even just those names are still part of the national conversation and something that you might hear about at dinner tables across the nation as well as in our courts' judicial opinions.

Take, for example, Hess v. McBride, 2008 WL 191250 (N.D.W.Va 2008), in which the petitioner asked the trial judge to recuse himself:

At the omnibus hearing, the petitioner testified that he told his attorney's paralegal that there was a family conflict. He further testified that his own father knew more about it. However, when pressed, the petitioner testified that "[i]t had something to do with my uncle and some land. [The judge's] brother beat my uncle up with the barrel of a shotgun because he wouldn't get off of the land."...At the same hearing, petitioner's trial counsel testified that he had been given no specific allegations regarding any conflict between the petitioner's and judge's families. Rather, it was a "family, a Hatfield and McCoy type of thing. I obviously didn't think it was important at the time. I apologize but it didn't seem to me to be a direct conflict of any kind."

And then there's Miller v. Cudahy Co., 656 F.Supp. 316 (D.Kan. 1987), in which the judge found that

From the first threat of filing this action (where defendants threatened plaintiffs that, if suit were filed, defendants' attorneys would drag the matter out until plaintiffs were broke and defendants owned their land), to the closing of the last remedial hearing (where both defendants and plaintiffs intimated that they would oppose any plan administration which gave any role to the other side), the drama of this case has resembled the Hatfields' and McCoys' dispute.

Indeed, courts frequently use these family names in hypotheticals as the United States District Court for the District of Oregon did just a few months ago in Reames v. AM Car Rental Services, Inc., 2012 WL 786840 (D.Or. 2012):

Unlike future income lost to injury, legal fees are avoidable. It is essential to distinguish between the likely course of litigation and the legal rights of the parties. Suppose the McCoys sell a garden rake for $10 to the Hatfields, who find it defective. The Hatfields could buy a new rake at Sears for $10, but instead they file suit against theMcCoys under the Magnuson–Moss Warranty Act. They state in the complaint that they anticipate attorneys' fees of $50,000 (for a total amount-in-controversy of $50,010), because the enmity of the parties makes settlement impossible. Assume this is factual—that the Hatfields and McCoys will fight the case to the last dollar in their bank accounts. Still, the amount “in controversy” between the parties at the outset is no more than $10, the sum the McCoys would have to pay to resolve the case on the date it was filed.

None of this should be too surprising because the Hatfields and McCoys are still feuding. As an example, take a look at Bowens v. McCoy, 2012 WL 1231938 (Ky.App. 2012), a decision from last month addressing a property dispute between the two families.

The feud between the Hatfields and McCoys has taken on almost a mythical quality such that it can be placed along side great works of literature like "Romeo and Juliet." As an example, take Williamson v. State, 333 A.2d 653 (Md.App. 1975), in which the Court of Special Appeals of Maryland described a bitter interfamily feud as "hardly so aristocratic as the Montagues and Capulets, nor quite as bloody as the Hatfields and McCoys...." And when an interfamily feud like the one between the Hatfields and McCoys ends with a killing, the nature of that feud has evidentiary consequences.

Usually, when a defendant is charged with murdering a victim, he cannot present evidence of specific instances of violence by the alleged victim. In essence, he can't use this evidence to prove that the alleged victim had a propensity for acting violently and likely acted in conformity with that propensity at the time of his death.

A defendant can, however, present evidence of specific instances of violence by the alleged victim if he is claiming self-defense and not using the prior acts to prove the alleged victim’s propensity to act violently and likely conformity with that propensity at the time of the crime charged. If the defendant can present evidence that he was aware of the alleged victim’s prior acts of violence, he can admit evidence of them, not to prove propensity/conformity, but for the purpose of showing his reasonable apprehension of immediate danger. Some courts refer to this use as “communicated character” because the defendant is aware of the victim’s violent tendencies and perceives a danger posed by the victim, regardless of whether the danger is real or not. See, e.g., State v. Laferriere, 945 A.2d 1235 (Me. 2008). And that's exactly what happened in Williamson.

-CM

Rubber & Glue: Supreme Court of California FInds No Problem With Crossover Character Evidence Rule

Federal Rule of Evidence 404(a)(2)(B) provides that in a criminal action

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait....

Somewhat similarly, California Evidence Code Section 1103(b) provides that

In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).

In other words, the California rule, like the federal rules, allows for the prosecution to attack the character of the defendant after the defendant has attacked the character of the victim (although the California rule is limited the evidence of violent character). So, what's the basis for these rules, and how many states follow the federal rule? Let's take a look at the recent opinion of the Supreme Court of California in People v. Fuiava, 269 P.3d 568 (Cal. 2012).

In Fuiava, Freddie Fuiava was convicted of the first degree murder of Los Angeles County Deputy Sheriff Stephen Blair and the premeditated attempted murder of Blair's partner, Deputy Robert Lyons. At trial, Fuiava had presented evidence attempting to establish that Deputy Blair had a reputation and character for engaging in violence, thereby seeking to bolster the credibility of his contention that it was Deputy Blair who unjustifiably shot first. In turn, the trial court had found that this opened the door under Section 1103(b) for evidence concerning Fuiava's violent character.

After he was convicted, Fuiava appealed, claiming, inter alia,

that the admission of his violent character as propensity evidence and the instruction permitting the jury to consider it in determining his guilt "was fundamentally unfair in violation of his rights to a fair jury trial, due process and to be protected from cruel and unusual punishment, as protected by the Sixth, Eighth and Fourteenth Amendments of the United States Constitution."

The Supreme Court of California disagreed, finding that

We cannot say that, in providing for the jury to obtain a balanced view of the possible violent tendencies of both the victim and the defendant, the Legislature ran afoul of any fundamental conception of justice embodied in the federal Constitution.

Specifically, the California Supremes found that

the operation of section 1103(b) is dependent upon a choice made by the defendant, in much the same way that other strategic choices made by the defense during a trial will make admissible evidence that otherwise would have been excluded....It is not fundamentally unfair to require the defendant to make that choice: "The criminal process, like the rest of the legal system, is replete with situations requiring 'the making of difficult judgments' as to which course to follow....Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose."

Moreover, the court noted that existence of Federal Rule of Evidence 404(a)(2)(B) and found that

Thirteen other jurisdictions, whose evidentiary rules generally parallel the federal rules, have since adopted the same or a similar rule.[FN30] The federal rule (and those of 12 other jurisdictions) actually would appear to be broader than section 1103(b), in the sense that its scope is not limited to evidence of violence.

The other jurisdictions that (thus far) have followed the amended federal rule are Delaware, Colorado, Kentucky, Michigan, North Dakota, Pennsylvania, Tennessee, Utah, Vermont, the Commonwealth of the Northern Mariana Islands, and the territories of Guam and the United States Virgin Islands.

Finally, the court noted that the rationale for the federal rule is similar to the rationale for the California rule: According to the Advisory Committee's Note to the amendment to Federal Rule of Evidence 404,

The amendment makes clear that the accused cannot attack the alleged victim's character and yet remain shielded from the disclosure of equally relevant evidence concerning the same character trait of the accused. For example, in a murder case with a claim of self-defense, the accused, to bolster this defense, might offer evidence of the alleged victim's violent disposition. If the government has evidence that the accused has a violent character, but is not allowed to offer this evidence as part of its rebuttal, the jury has only part of the information it needs for an informed assessment of the probabilities as to who was the initial aggressor. This may be the case even if evidence of the accused's prior violent acts is admitted under Rule 404(b), because such evidence can be admitted only for limited purposes and not to show action in conformity with the accused's character on a specific occasion. Thus, the amendment is designed to permit a more balanced presentation of character evidence when an accused chooses to attack the character of the alleged victim.

-CM

Plea Plea Me: Plea Allocution & Waiver Triggers Rule 410(a)(3) & 410(b)(1) In Arson Case

Federal Rule of Evidence 410(a)(3) provides that

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 a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure....

Rule 410(a)(3) explains why incriminatory statements that Volkan Mergen made during a plea allocution ould have been inadmissible against him in United States v. Mergen, 2010 WL 395974 (E.D.N.Y. 2010), if he hadn't signed a waiver. That waiver explains why his statements were admissible against him. And Federal Rule of Evidence 410(b)(1) likely explains why the defendant could place his statements in context.

In Mergen, Volkan Mergen was suspected of committing an arson and related crimes. The AUSA assured Mergen that if he entered a guilty plea in connection with the arson, the AUSA would file a 5K1.1 departure with the court; if not, Mergen could face a sentence of up to 25 years. Mergen agreed to plead guilty, and during the plea allocution, the defendant gave the following testimony under oath:

"I traveled with others by car from Staten Island to New Jersey to obtain gasoline to be used to set fire to a house. In New Jersey, we obtained gasoline and then traveled by car to Staten Island. In Staten Island, we drove to a house and one of the individuals set fire to the house using the gasoline. At the time of these events, I was cooperating with the government but I did not have authorization to set fire to a house or to obtain gasoline for that purpose."

Mergen thereafter withdrew his guilty plea, and his case proceeded to trial. And, as the Eastern District of New York noted, if Mergen hadn't signed a waiver, his plea allocution statements would have been inadmissible under Rule 410(a)(3). That's because the language of Rule 410(a)(3) clearly covers plea allocutions. See United States v. Orlandez-Gamboa, 320 F.3d 328, 331 (2^nd Cir. 2003). The right to allocute, to address the court on any subject, prior to the imposition of sentence, is “ancient in law,” United States v. Behrens, 375 U.S. 162, 165 (1963), and currently codified in Federal Rule of Criminal Procedure 32(i)(4)(A)(ii), which provides that "[b]efore imposing sentence, the court must…address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence."

If during a plea allocution, the defendant makes incriminatory statements, those statements will not be admissible against the defendant in a subsequent criminal or civil proceeding pursuant to Rule 410(a)(3). For instance, in United States v. Udeagu, 110 F.R.D. 172 (E.D.N.Y. 1986), the defendant pleaded guilty to knowing and intentional importation of heroin and possession with intent to distribute and then described his participation in the crime in detail during a plea allocution. See id. The defendant thereafter withdrew his guilty plea and filed a successful motion in limine to preclude the prosecution from presenting his plea allocution statements into evidence pursuant to Rule 410(a)(3). See id.

But Mergen did sign a waiver, which stated that

"Any prosecution resulting from the defendant's failure to comply with the terms of this agreement may be premised upon, among other things: (a) any statements made by the defendant to the Office or to other law enforcement agents on or after January 26, 2005; (b) any testimony given by him before any grand jury or other tribunal, whether before or after the date this agreement is signed by the defendant; and (c) any leads derived from such statements or testimony. Prosecutions that are not time-barred by the applicable statutes of limitation on the date this agreement is signed may be commenced against the defendant in accordance with this paragraph, notwithstanding the expiration of the statutes of limitation between the signing of this agreement and the commencement of any such prosecutions. Furthermore, the defendant waives all claims under the United States Constitution, Rule 11(f) of the Federal Rules of Criminal Procedure, Rule 410 of the Federal Rules of Evidence, or any other federal statute or rule, that statements made by him on or after January 26, 2005, or any leads derived therefrom, should be suppressed."

Because Mergen's withdrawal of his guilty plea constituted failure to comply, the prosecution was allowed to admit his plea allocution, but the Eastern District of New York found that the prosecution could not admit those statements in "bare-bones fashion," as asserted by the Government. Instead,

Contrary to the Government's assertion, the circumstances surrounding the statements are not irrelevant. The statements were made in the context of a guilty plea that was subsequently withdrawn. Should Defendant introduce evidence that contradicts the sworn statements he made during his allocution, the jury will have to make credibility determinations and weigh the conflicting evidence. Thus, the context in which Defendant made the statements could certainly be relevant to a jury deciding how much weight to accord the statements. Moreover, if the Government introduces Defendant's plea allocution statements, fairness dictates that Defendant be permitted to put the statements before the jury in context. Accordingly, although the court will enforce the waiver and allow the Government to introduce the plea allocution statements in its case-in-chief, it will not preclude Defendant from providing context for those statements.

While the court did not explicitly say so, it seems clear that in reaching this conclusion, it was relying upon Federal Rule of Evidence 410(b)(1), which provides that

The court may admit a statement described in Rule 410(a)(3) or (4):

(1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together....

-CM

Juvenile Record: Court Of Appeals Of North Carolina Finds Error In Allowing Impeaching Of Defendant Through Juvenile Adjudication

Similar to its federal counterpart, North Carolina Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

As the language of Rule 609(d) makes clear, juvenile adjudications are per se inadmissible to impeach the credibility of criminal defendants, which is why the Court of Appeals of North Carolina in State v. Lacy, 711 S.E.2d 207 (N.C.App. 2011), found that the trial court erred. But was that error reversible or harmless?

In Lacy, Richard Lacy stabbed Janine Renee McCorey 23 times after an argument and also stabbed a second person 7 times. Lacy was thereafter convicted of first degree deliberate and premeditated murder, felony murder. and attempted first degree murder. After he was convicted, Lacy appealed, claiming, inter alia, that the following exchange at trial between the prosecutor and a mental health expert improper:

Q: And in Port Smith, Virginia, what was he treated for?

[Defense Counsel]: Objection.

The Court: Overruled.

[Defense Counsel]: Your Honor, could we approach?

The Court: Yes.

(A bench discussion was held)

Q: Dr. Hilkey, what was the Defendant being treated for?

A: Do I need to answer that? He had been involved with inappropriate touching of a child and he was referred for treatment for that.

This testimony referenced Lacy's juvenile adjudication for a sex offense, and the Court of Appeals of North Carolina correctly found that evidence of the adjudication was per se inadmissible under Rule 609(d) because Lacy was a criminal defendant. The court also deemed the conviction inadmissible under North Carolina Rule of Evidence 404(b). 

This left the question of whether the trial court's error was harmless, with the Court of Appeals finding that it was because the

Defendant confessed the crimes to the police, and the jury saw and heard Defendant's confession on videotape. Defendant admitted to being at Howard's home on 13 December 2007; to stabbing both Howard and Decedent; and to fleeing the home afterwards. Furthermore, the testimony of multiple witnesses at trial, fingerprint evidence found on a beer bottle at Howard's home, and DNA evidence discovered underneath Decedent's fingernails, linked Defendant to the crimes committed on 13 December 2007. We also find it telling that Decedent sustained twenty-three stab wounds, and Howard sustained seven stab wounds, one of which was “to [his] back,” and another which punctured his liver. Decedent's numerous wounds were described in the following way at trial: Decedent had a cut “from one part of her scalp to the other part”; a “gaping wound” on her “left shoulder”; wounds to her “left chest,” “right thigh,” “abdomen”; “part of her ear was missing”; one cut on Decedent's head went “straight down...and actually cut[] a groove into the underlying skull bone”; another wound on Decedent's head went “down to the bone but it d[id]n't actually make a cut in the bone”; another wound went “through the chest wall and actually cut[] a piece of cartilage off of the fifth rib,” went “down through the left lung and then [went] through the left ventricle of the heart [before coming] out the back side of the heart."

-CM