EvidenceProf Blog

The Brady Bunch: 6th Circuit Addresses Whether 3 Types of Evidence Needed To Be Disclosed Under Brady

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. But does Brady cover (1) opinion evidence under Federal Rule of Evidence 608(a); (2) internal memoranda containing unsubstantiated allegations; or (3) fact-based conclusions under Federal Rule of Evidence 608(b)? All of these issues were addressed by the recent opinion of the Sixth Circuit in United States v. Taylor, 2012 WL 2366243 (6th Cir. 2012).

In Taylor, 

Carl Henderson, Maurion Lewis, and Gerald Taylor were each convicted of conspiring to distribute phencyclidine (PCP). Lewis and Taylor were tried together and, in addition to the conspiracy conviction, were convicted of possessing PCP with the intent to distribute the drug. Henderson, tried separately, was found not guilty on the PCP-possession charge, but was convicted of being a felon in possession of ammunition in addition to the conspiracy conviction.

At a suppression hearing, Drug Enforcement Agency (DEA) Special Agent Lee Lucas testified as a key witness against all three defendants. After the defendants were convicted, they appealed, claiming, inter alia, that the government failed to timely disclose material impeachment evidence Agent Lucas: that he was under investigation for fabricating evidence and committing perjury in other cases.

This first raised the question of whether Brady applies to suppression hearings, with the Sixth Circuit noting that it has "never decided whether Brady protections are applicable to a suppression hearing" and that "[a] number of other circuits have also avoided answering this question." That said, the court acknowledged that "[t]he only two circuits that have actually ruled on this issue...have determined that Brady does apply to suppression hearings" and thus assumed without deciding that Brady applies to suppression hearings.

This left the question of whether three types of evidence that the government failed to timely disclose was material for Brady purposes:

Opinion evidence covered by Federal Rule of Evidence 608(a)

According to the court,

Assistant U.S. Attorney Hendrickson testified that she doubted Agent Lucas's veracity with regard to a search warrant that he executed. Her opinion of Agent Lucas's truthfulness is clearly admissible under Rule 608 Rule 608 of the Federal Rules of Evidence, but whether her opinion is the type of evidence that the government should be required to disclose under Brady is doubtful. Although each "prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police,"...asking the government to convey every undocumented negative opinion about its testifying officers would stretch the Brady requirement beyond what is practicable.

I probably agree that "asking the government to convey every undocumented negative opinion about its testifying officers would stretch the Brady requirement beyond what is practicable." But how about merely requiring disclosure of every testifying officer who is under investigation for fabricating evidence and/or committing perjury? Such a requirement certainly seems practicable, and opinion impeachment evidence seems quite valuable under such circumstances.

Internal memoranda containing unsubstantiated allegations

Additionally, according to the court,

Also questionable in terms of Brady disclosure are the allegations about Agent Lucas that were not sustained after investigation, such as the remark in paragraph ZZ of FBI Agent Winslow's memorandum that "the U.S. Attorney's Office had concerns about several investigations wherein Lucas may have lied." The government's argument that such unsubstantiated allegations are not material under Brady is compelling. See Agurs, 427 U.S. at 109 & n. 16 (commenting that the prosecution has no "obligation to communicate preliminary, challenged, or speculative information" (internal quotation marks omitted)). No court, to our knowledge, has held that Brady mandates the disclosure of internal memoranda on the basis that they contain unsubstantiated conjecture about a testifying officer.

I agree with the court's conclusion with regard to this evidence.

Fact-based conclusions covered by Federal Rule of Evidence 608(b)

Finally, the court found that

the documents containing fact-based conclusions about Agent Lucas, including the original opinion written by Judge Economus and former Assistant U.S. Attorney Gruscinski's memorandum, do not raise any logistical concern; they could have easily been gathered and turned over by the prosecution. But the government argues that extrinsic impeachment evidence is not material under Brady because it is not admissible under Rule 608(b) of the Federal Rules of Evidence. At the time of trial, Rule 608(b) provided that "[s]pecific instances of the conduct of a witness, for the purpose of attacking...the witness'[s] character for truthfulness, may not be proved by extrinsic evidence."...This court, however, has held that "information withheld by the prosecution" need only "lead directly to[ ] evidence admissible at trial" in order to be material under Brady....In addition, although the documents themselves may not be admitted as extrinsic evidence, the events that they record may still be inquired into on cross-examination.

I agree with the court's conclusion in this regard and argued as much in Inadmissible but Material? Resolving the Circuit Split After Wood. Of course, this begs the question of whether Rule 608(b) evidence is inadmissible? As the court noted, a party can use specific instances of misconduct to cross-examine a witness under Rule 608(b), but extrinsic evidence of such instances is admissible. So, is such evidence admissible or inadmissible? I'm glad that the Sixth Circuit has obviated the need to draw such a line by finding that Brady covers even inadmissible evidence if it "lead[s] directly to[ ] evidence admissible at trial...."

(While the court thus found that these fact-based conclusions should have been disclosed, "there [wa]s no 'reasonable probability' that the defense's ability to further impeach Agent Lucas would have changed any of the verdicts.").

-CM

Oliver Stone, Savages, Conspiracy Theories, Natural Born Killers & The Admissibility Of Movies As Evidence

Today's release of "Savages" could mark the return of Oliver Stone. Since 1999's "Any Given Sunday" garnered solid reviews and box office receipts, America's favorite conspiracy theorist has struck out in the new millennium (besides a couple of decent documentaries). "World Trade Center" did OK critically and commercially but was clearly the red headed stepchild to "United 93." But "Alexander" was a disaster, "W." was utterly forgettable, and greed wasn't as good the second time around in "Wall Street: Money Never Sleeps." But has any director had as good of a 4 year stretch as Stone's 1986-1989, with Salvador (my favorite of his films), Platoon, Wall Street, Talk Radio, and Born on the Fourth of July? Those five films and other such as "JFK" and "Nixon" are a big reason why Oliver Stone is still part of the national discussion and part of many of our courts' opinions. But it was Stone's 1994 movie, "Natural Born Killers," that might have led to the most interesting opinion involving the filmmaker.

Unsurprisingly, the majority of court opinions that mention Oliver Stone rely upon his reputation as a conspiracy theorist, much like in the movie "Dave." In Hernandez v. Thaler, 440 Fed.Appx. 409 (5th Cir. 2011), defense counsel argued that a witness for the prosecution lied about the defendant having a swollen hand in the aftermath of a murder that he allegedly committed. During closing arguments, defense counsel called this "the magic swollen hand" (sort of like the "magic bullet" in "JFK") and argued

All of a sudden, everybody sees a swollen hand. Oh, there it is. Must have been from what happened out there. Really. You might think this is kind of Oliver Stone or conspiracy theories. Take a good look at Mary's statement, the one she gave here. Look at her handwriting. Look through all of them, it's the same. Same handwriting. Nothing changes. All of a sudden at the very end look at the different spelling that says "that was when I noticed his hand was swollen."

In Elliott v. Leavitt, 105 F.3d 174 (4th Cir. 1997), the Fourth Circuit asserted that

A skeptical look at police conduct is one thing, but the contention that the officers planted a gun on Elliott requires that courts embrace conspiracy theories of which Oliver Stone would be proud.

And here are some more:

-McFarlane v. Esquire Magazine, 74 F.3d 1296 (D.C. Cir. 1996) ("In a breathless and kaleidoscopic account rivaling an Oliver Stone movie....");

-Hutchinson v. Stanton, 994 F.2d 1076 (4th Cir. 1993) ("Plaintiffs alleged a two-county-wide election-rigging conspiracy worthy of an Oliver Stone screenplay.");

-Schellenbach v. S.E.C., 989 F.2d 907 (7th Cir. 1993) ("Schellenbach's arguments have an Oliver Stone quality to them that at times border on paranoia.");

-Rosenthal Collins Group, LLC v. Trading Technologies Intern., Inc., 2011 WL 722467 (N.D.Ill. 2011) ("TT provides no evidentiary support for its Oliver–Stone–esque theory that Walter Buist, a disinterested non-party, literally turned back the clock on his computer (a computer that TT examined thoroughly on no fewer than three occasions.");

-United States v. Gonzalez, 285 F.Supp.2d 357 (S.D.N.Y. 2003) ("My suggestion to Mr. Owens neither 'causes a dark stain on the integrity of the judicial system' nor should it give 'life to conspiracy theories of Oliver Stone proportions.'");

-PPC Enterprises, Inc. v. Texas City, Texas, 76 F.Supp.2d 750 (S.D.Tex. 1999) ("Plaintiffs' also pose an Oliver Stone-like conspiracy argument, which posits that League City has schemed with Texas City to eliminate all fireworks in Galveston County.");

-Kurker v. Kassler & Feuer, P.C., 1999 WL 33601320 (D.Mass. 1999) ("The Complaints are bereft of even the kind of quasi-factual asservations that might appeal to the credulity of an Oliver Stone....");

-Choate v. County of Orange, 103 Cal.Rptr.2d 339 (Cal.App. 4 Dist. 2000) ("This is a mind-boggling concept (the bigger the conspiracy, the less the proof), one worthy of Oliver Stone."); and

-State v. Deputy, 1999 WL 743921 (Del.Super. 1999) ("In ten of his grounds for relief, Deputy makes allegations of a vast conspiracy which if true would dwarf anything ever dreamed of by Oliver Stone.").

That takes me to Beasley v. State, 502 S.E.2d 235 (Ga. 1998), in which Ronnie Jack Beasley, Jr. was convicted of malice murder, armed robbery and theft by taking a motor vehicle. At trial,

The State introduced evidence that Beasley watched the movie "Natural Born Killers" 19 or 20 times; that he had said he wanted to be like the characters in the movie; that he and [his girlfriend] sometimes used the names of characters in the movie; and that he sometimes referred to himself as "the Natural." The movie itself was introduced into evidence and shown to the jury in its entirety. It depicts a violent murder, rape, kidnapping and prison mutiny.

After he was convicted, Beasley appealed, claiming, inter alia, that the trial court improperly allowed for the movie to be shown to the jury, and the Supreme Court of Georgia quickly rejected that argument, finding that

In this case,...the jury may have made the permissible inference that Beasley was encouraged by the movie to commit a violent murder. After all, Beasley viewed the movie an extraordinary number of times and he identified with characters in the movie. Given these factors, we conclude that the movie was relevant to show Beasley's bent of mind.

Justice Fletcher dissented, however, initially noting that

In this case, the movie Natural Born Killers may be classified as both real and illustrative evidence. The actual tape of the movie is "real" evidence in that it is directly related to the crimes at trial. Witnesses testified that Beasley had watched the movie 19 or 20 times, bragged of duplicating the crimes of the fictional mass murderers, and imitated the film's self-proclaimed natural born killer by referring to his girlfriend as Mallory and shaving his head. Because of this relevant testimony, the trial court did not abuse its discretion in admitting the physical tape into evidence or in allowing testimony related to Beasley's fascination with the movie.

But Justice Fletcher then found that

In contrast to the actual tape, the contents of the movie are illustrative evidence in that the film tells a fictional story, which Beasley admired, of mass murderers who obtain celebrity status. Like the movie reenactments in Eiland and Pickren, the movie here presents the state's theory that Beasley killed Olin Miller as his petty imitation of Mickey Knox's crime spree. In the words of the state prosecutor, Beasley "did what was in that movie. Oh, they did a small time version of it. It wasn't killing everybody they saw, but that's exactly what they were doing....that's exactly the way they did things."

For Justice Fletcher, the basic question was whether the probative value of the movie was substantially outweighed by the danger of unfair prejudice. On the former front, Justice Fletcher determined that

the probative value of the film is questionable. At trial, the state offered the movie to prove motive. What is not clear from the record is whether the state contended that Beasley was seeking to imitate the murders committed in the movie or to emulate the celebrity status of the movie's mass murderers. If, as suggested by the testimony and closing arguments, the state presented the movie to show that Beasley was attempting a copycat killing, then the testimony of the murder was adequate and the motion picture added nothing except the visual image to the mental image already produced.

Perhaps because of the weakness of the state's rationale at trial, the majority opinion relies on a different purpose, concluding that the movie was relevant to show Beasley's bent of mind "to commit a violent murder."...Based on this broad reasoning, any book, movie, record, or television program that includes a crime similar to the one with which an accused is charged would be relevant to show that individual's bent toward criminal activity. Under this expansive test, reading the works of Nobel prize-winning authors like Toni Morrison and William Faulkner can become evidence that an accused had a "bent of mind" to commit murder. Because this rationale is simplistic and overreaching, I find it unpersuasive as a basis for allowing the jury to view the movie in this case.

The testimony at trial, moreover, was adequate to describe the movie's connection to Beasley and his crimes. The witnesses detailed Beasley's obsession with the movie, his boastful claims to be like the movie characters and kill everybody he met, and his symbolic efforts to imitate his fictional hero. It is unclear what critical evidence the moving pictures added to the state's case other than to become an "extra witness." As a additional witness, the film presented "evidence" to the jury of murder and mayhem that differed substantially from the reality of the crimes that the defendant was accused of committing. By using "bent of mind" as a rationale for the showing of a gruesome murder film, the majority is allowing a lower standard of relevancy and admissibility for fictional films than for video reenactments of the actual crime in question.

Meanwhile, Justice Fletcher found the danger of unfair prejudice to be unacceptably high:

Weighed against the movie's weak probative value is its prejudicial effect. First, the jury spent two hours watching a movie that was, at best, tangentially related to the accused's crimes, as well as being forced to view a garish and excessive story that those with strong sensibilities may not have chosen to see voluntarily. Second, given the power of the medium and the length of the film, there is a likelihood that the movie would mislead the jury into confusing the crimes of Mickey Knox with the crimes that Beasley was accused of committing. Even if the jury could separate the movie crimes from the murder of Olin Miller, the movie tends to obfuscate the issue of what Beasley did with what he said he intended to do.

Third, the potential for prejudice in this instance was enormous. The name of the movie, much less its portrayal of two mass murderers committing 52 murders, invites prejudice. No court would allow a jury to watch a film about the Holocaust as "evidence" in the trial of a person accused of killing a Jew, even if the defendant had delusions that he was Hitler. "[N]ot only is the danger that the jury may confuse art with reality particularly great, but the impressions generated by the evidence may prove particularly difficult to limit." In this case, the sensational account of 52 murders during a fictional three-month crime spree added little to Beasley's trial except possible confusion and unfair prejudice. Therefore, the jury should not have been allowed to view the movie.

-CM

Damned Lies & Statistics?: North Carolina Severely Scales Back Its Racial Justice Act

Back in May, I posted an entry about North Carolina's Racial Justice Act. At the time, I noted that

On April 20th, Superior Court Judge Greg Weeks issued a landmark ruling. That ruling, the first issued after application of North Carolina's Racial Justice Act, found that race was a significant factor in the prosecution's use of peremptory strikes in the trial of Marcus Robinson, an African-American defendant. Accordingly, Judge Weeks vacated Robinson's death sentence and replaced it with a sentence of life imprisonment without the possibility of parole.

North Carolina's Racial Justice Act, enacted in 2009, is the second of its kind in this country, coming on the heels of Kentucky's Racial Justice Act, which took effect in 1998. "But [the] American Bar Association said in a report it was unclear exactly how often [Kentucky's Act] has been used except for during the 2003 trial of an African-American man accused of kidnapping and killing his ex-girlfriend, who was white." Indeed, all indications are that Kentucky's Racial Justice Act is little more than a dead letter.

Conversely, in North Carolina, Marcus Robinson's life was spared a mere 3 years after the passage of North Carolina's counterpart, and "[n]early all of North Carolina’s 157 death row inmates have filed claims under the act." So, what explains the difference? The answer is the different types of evidence admitted under the respective acts, and, in this post, I want to make two points about this distinction.

As noted in Seth Koch and Robert P. Mosteller, The Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031, 2116-18 (2010),

differences between the North Carolina RJA and the Kentucky legislation of the same name reveal how the North Carolina RJA avoids indirectly limiting the defendant’s use of statistical proof. The Kentucky statute indirectly limits the defendant’s use of statistical proof by its requirement of particularity in proof linking the statistical evidence to the defendant’s specific case. By contrast, the North Carolina RJA focuses the particularity of proof on how statistical evidence supports "a claim that race was a significant factor in decisions...in the county, the prosecutorial district, the judicial division, or the State." It requires the defendant "to state with particularity how the evidence supports" the claim that race was a significant factor in decisions of the prosecutor or jury in any of these geographical areas at the time of decision, focusing the particularity requirement on proof of the impact of race in one of those areas. Thus, compared to the Kentucky statute, the North Carolina RJA imposes a particularity requirement regarding proof as to the four relevant geographical areas and not the individual defendant’s case.

When a state passes an act that leads nearly all of its death row inmates to file claims, with the first of those claims being successful, you're going to get some push back. And that's exactly what happened on Monday with North Carolina's RJA being scaled back so that it now resembles Kentucky's RJA.

Previously, the North Carolina legislature had voted to neuter the state's RJA. Governor Beverly Perdue then vetoed the legislation that would have weakened the RJA. And then, on Monday, the North Carolina legislature overrode that veto. So, what does the new RJA look like? 

The new law limits defendants' use of statistics they think prove racial bias from a time span 10 years before a slaying and two years after a sentence. There had been no time limit. The new law also says statistics alone cannot prove race was a significant factor in a death row inmate's conviction or sentence. Statistics also are now limited to conduct of prosecutors near where the murder occurred, rather than anywhere in the entire state as the previous law allowed.

The argument against the earlier, broader RJA seems to have been that it was a back-door way to accomplish a moratorium on the death penalty. 

Defense attorney Sen. Thom Goolsby, R-New Hanover, said the 2009 law was a back-door way by death penalty opponents to end capital punishment.

"I don't trust are statisticians or people who come in after the fact to find some way to get cold-blooded killers off of death row," he said before the 31-11 override vote.

But others, such as Sarah Preston of the Noth Carolina ACLU, argued that

"By gutting the Racial Justice Act, our Legislature has turned its back on the overwhelming evidence of racial bias in our state's death penalty system...."

As I noted in my previous post, I strongly supported the earlier version of North Carolina's RJA. Was it, as Gollsby claimed, a back-door way to place a moratorium on the death penalty? I don't think so, but, if it was, is that such a bad thing? In Furman v. Georgia, the Supreme Court placed a moratorium on the death penalty because of concerns that it was selectively enforced against racial minorities and others. In the one case heard under the old RJA, such selective enforcement against racial minorities was established in large part through a study by Michigan State University School of Law Professors Catherine M. Grosso and Barbara O'Brien as well as University of Iowa Professor George G. Woodworth. Given the statistics uncovered by these experts, I'm all for a moratorium. Instead, given the Kentucky precedent, I'm not sure how much we'll be hearing about North Carolina's RJA in the future.

-CM

The Amazing Spider-Man, Voltaire, Percy Jackson & Alabama Rule Of Criminal Procedure 11.2(b)(2)

As a kid, Spider-Man was my favorite superhero. My first exposure to the web-slinger was watching "The Amazing Spider-Man" in syndication. Then, it was the animated "Spider-Man and His Amazing Friends" on Saturday mornings. In the early 1980s, it was always a thrill to see Spidey appear on reruns of "The Electric Company" on PBS. I used to run around the house with empty potato bags on my wrists and throw them at people while shouting, "Psst! A web!" In 2002, Sam Raimi brought your friendly neighborhood Spider-Man to the silver screen. I recall that the film opened at midnight, nine hours before my last 2L exam, and I had to resist the urge to watch it at the Hampton Town Centre to cram in some last minute studying and sleeping. That movie, of course, broke the opening weekend box office record, and its sequel, which bore the fingerprints of co-writer Michael Chabon, might be my favorite superhero film of all time (Raimi's "Darkman" might beat it by a nose). But then came the disappointing "Spider-Man" and the death of the Tobey Maguire iteration of Peter Parker.

Yesterday, Marc Webb, director of the dazzling rom-dram "(500) Days of Summer" tried to breathe new life into the franchise with the release of "The Amazing Spider-Man," starring Andrew Garfield and Emma Stone. And with the film already breaking some box office records, it is safe to say that this isn't the last that we'll see of Spider-Man on the big screen. It turn, it's likely that the recent opinion of the Court of Criminal Appeals of Alabama in Thompson v. State, 2012 WL 520873 (Ala.Crim.App. 2012), isn't the last we'll see of Spidey in our courts' opinions.

A search of "Spider-Man" in Westlaw returns 76 results in the ALLSTATES database and 1 one fewer (75) in the ALLFEDS database. In Montpelier US Ins. Co. v. Collins, 2012 WL 588799 (E.D.Ky. 2012), the Eastern District of Kentucky began its opinion by noting that

With great power comes great responsibility. This often-repeated Voltaire quote worked for Spider–Man, and it works for federal jurisdiction as well.

In dismissing a copyright action by the creator of the character "Percy John" (PJ) against the creators and distributors of the Percy Jackson novels and film, the Southern District of New York York in DiTocco v. Riordan, 815 F.Supp.2d 655 (S.D.N.Y. 2011), found that

To be sure, there are similarities between the PJ and Percy characters. However, these similarities are not copyrightable. “As have stories since time immemorial, both [sets of works] involve a questing hero acting in accord with a divine power or powers.” Bissoon–Dath v. Sony Computer Entm't Am., Inc., 694 F.Supp.2d 1071, 1082 (N.D.Cal.2010). Young male heroes who must cope with missing parents and display their strength in battles with otherworldly forces are commonplace. Harry Potter and Spiderman, for example, both fit this mold.

Graham v. Perez, 2011 WL 1486707 (S.D.N.Y. 2011), dealt with a perpetrator dubbed "'Spiderman' for his ability to scale walls, climb scaffolding, and leap across rooftops." In Burchette v. Abercrombie & Fitch Stores, Inc., 2010 WL 1948322 (S.D.N.Y. 2010), a witness testified that

that co-workers had given her the nickname of Mary Jane because [her] "hair was similar to the comic book character," Spiderman's love interest.

And then there are the cases in which attorneys have asked children about whether Spider-Man is real to test their competency. For instance, in State v. Johnson, 2012 WL 538957 (Minn.App. 2012), the appellant's attorney asked a child witness:

Q. ... So if I were to tell you that I know Spiderman and he's a real person, would I be telling the truth?

Similarly, in State v. Perez, 151 P.3d 249 (Wash.App. Div. 3 2007), a child witness "knew that dinosaurs and Spiderman were not real, but was not so sure about dragons."

That leaves us with Thompson. In Thompson, Devin Thompson was convicted of murder and sentenced to death. After he was convicted, Thompson appealed, claiming, inter alia, that the trial court erred by allowing a psychologist, Dr. Brent Wilson, to testify at trial concerning certain statements that Thompson made during Dr. Wilson's mental evaluation of him. Specifically,

Dr. Willis testified that Thompson told him that "he done a lot of stupid stuff. He broke into a lot of places. He said, 'people call me Spiderman because I was so athletic.' He said, 'I broke into a place and got clothes and stole a Camry and went home.'"

This testimony prompted an immediate objection by defense counsel:

We're going to object to him referring to matters that are not relevant to his diagnosis. He had been—he has a limited confidentiality stipulation when he is interviewing him to (inaudible) relevant only to his competency at the time of the offense and not all this other stuff. 

This objection was overruled, prompting Thompson's appeal, with the Court of Criminal Appeals of Alabama finding that the issue was governed by Alabama Rule of Criminal Procedure 11.2(b)(2), which provides that

The results of mental examinations made pursuant to subsection (a)(2) [mental condition at the time of offense] of this rule and the results of similar examinations regarding the defendant's mental condition at the time of the offense conducted pursuant to Rule 11.4 shall be admissible in evidence on the issue of the defendant's mental condition at the time of the offense only if the defendant has not subsequently withdrawn his or her plea of not guilty by reason of mental disease or defect. Whether the examination is conducted with or without the defendant's consent, no statement made by the defendant during the course of the examination, no testimony by an examining psychiatrist or psychologist based upon such a statement shall be admitted against the defendant in any criminal proceeding, except on an issue respecting mental condition on which the defendant has testified. (emphasis added).

Because Thompson did not testify, the court found that the admission of Dr. Wilson's testimony was erroneous, but it found that error to be harmless because

Thompson's detailed confession was admitted into evidence. Thompson's confession was significantly more incriminating than were the statements he made to Dr. Willis. Accordingly, the admission of statements made by Thompson to Dr. Willis during his mental evaluation was harmless beyond a reasonable doubt.

-CM

A Doctor Out On Loan: Court Finds HHS Chief's Declaration Self-Authenticating Under Rule 902(11)

Federal Rule of Evidence 902 contains a list of self-authenticating evidence, i.e., evidence that "require[s] no extrinsic evidence of authenticity in order to be admitted...." Under Federal Rule of Evidence 902(11), one type of self-authenticating evidence is a certified domestic record of a regularly conducted activity,

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

In other words, as the text of Rule 902(11) makes clear, it is an easy way for a party to authenticate records that satisfy the business records exception contained in Federal Rule of Evidence 803(6), as was the case in In re Von Kiel, 2012 WL 2328941 (Bkrtcy.E.D.Pa. 2012).

In Von Kiel, Erik Von Kiel (formerly known as Dennis Fluck), a doctor who owed $200,239.42 in Health Education Assistance Loans, sought a determination that for various reasons, (1) his loans should be deemed not to exist, or, in the alternative, (2) that the loans were discharged in his 1991 bankruptcy case, or, again in the alternative, (3) that the loans are dischargeable in his current bankruptcy case.

In response, the defendants the United States Department of Health & Human Services and the United States Department of Justice filed a motion for summary judgment which was supported by a declaration by Barry Blum, the Chief of the Referral Control Section of the Debt Management Branch of HHS.

Blum's Declaration set[] forth that, "as Chief of the Referral Control Section" ("RCS"), [he] is authorized to examine the records and claims of the HHS and to execute a Declaration of Facts based on these examinations; that "all documents attached hereto and referenced above are true and correct copies of official records maintained by HHS"; that "these files are kept in the ordinary course of HHS' regularly conducted activities and are made at or near the time by, or from, information transmitted by a person with knowledge"; and that HHS took assignment of the loans from Sallie Mae, and Sallie Mae took assignment of the loans....

Von Kiel claimed that the declaration was inadmissible hearsay that did not qualify for the business records exception contained in Rule 803(6) because Blum lacked personal knowledge about Von Kiel's loan documents, default, amount of payments and calculation of interest. The court disagreed, finding that to qualify under the business records exception a witness need only have knowledge of the procedures under which the records were created, not knowledge of the actual entries in the records.

Moreover, because the Blum declaration was accompanied by a certification, the court found that it was self-authenticating under Rule 902(11).

-CM

An Opéra-Bouffe Air Of Unreality: 1st Circuit Finds "Savings Clause" Of Rule 902(3) Not Satisfied For Russian Convictions

Federal Rule of Evidence 902 contains a list of self-authenticating evidence, i.e., evidence that "require[s] no extrinsic evidence of authenticity in order to be admitted...." Under Federal Rule of Evidence 902(3), one type of self-authenticating evidence is the foreign public document,

A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:

(A) order that it be treated as presumptively authentic without final certification; or

(B) allow it to be evidenced by an attested summary with or without final certification. (emphasis added).

"Because the language of the Rule 902(3) exception (contained in the italicized language) was appropriated directly from Fed.R.Civ.P. 44(a)(2)...., courts are obliged to read the two rules in pari passu." United States v. De Jongh, 937 F.2d 1, 4 (1st Cir.1991). So, was this exception, the so-called "savings clause" of Rule 902(3), satisfied in Starski v. Kirzhnev, 2012 WL 2334742 (1st Cir. 2012)? 

In Kirzhnev, Eugene Starski asserted claims against Alexander Kirzhnev (and Kirzhnev's company DAI Synditrade) growing out of a commercial dispute. After trial, Starski filed a motion for a new trial, claiming that the district court erred by deeming evidence of Kirzhnev's Russian convictions inadequately authenticated.

The district court denied the motion, and the First Circuit agreed, finding that

the document showing a conviction must be authenticated, and absent testimony (e.g., from a court official), a foreign document is self-authenticating if (1) signed or attested by a person who is authorized to do so, and (2) accompanied by a final certification—either by certain officials enumerated in the rules or pursuant to treaty—of the genuineness of the signature and official position of the signer or attester. Fed.R.Evid. 902(3); see also Fed.R.Civ.P. 44(a)(2)). Here, Starski tendered no such certification.

That still left the "savings clause" of Rule 902(3), with the First Circuit noting that

A savings clause in Rule 902 permits the court to relax the authentication requirements, but one condition is that the party so requesting show that it was "unable to satisfy" the rule's requirements for authentication "despite...reasonable efforts." United States v. De Jongh, 937 F.2d 1, 4 (1st Cir.1991) (quoting Fed.R.Civ.P. 44 advisory committee note).

But the First Circuit found that this savings clause was not satisfied because

Starski was able to get other documents properly authenticated; and, if he made a “reasonable efforts” proffer below, he does not develop that claim on appeal.

The whole controversy has an opéra-bouffe air of unreality. As Starski points out, Kirzhnev never denied to the court that he had been convicted of bribery, although the jury was not told of the fact. Conversely, the jury likely fathomed just what Kirzhnev was doing to earn his own commission, whether or not he was formally convicted of bribery; whether or not the jury drew a negative inference from the conduct is unclear but, if not, it is unclear that a formal conviction would alter its view.

-CM