EvidenceProf Blog

Avoiding A Confrontation: 6th Circuit Becomes Latest Court To Find Nontestimonial Hearsay Beyond Bruton's Scope

Our conclusion that the contested statements were nontestimonial under Davis compels us to reject the challenges levied by Rodriguez and Cruz under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Court held that the Confrontation Clause bars the use of the confession of a nontestifying criminal defendant in a joint trial to the extent that it directly inculpates a co-defendant, though it might be otherwise admissible against the confessing defendant. Id. at 126, 88 S.Ct. 1620. "We have interpreted Bruton expansively, holding that it applies not only to custodial confessions, but also when the statements of the non-testifying co-defendant were made to family or friends, and are otherwise inadmissible hearsay." United States v. Mussare, 405 F.3d 161, 168 (3d Cir.2005) (citing Monachelli v. Graterford, 884 F.2d 749, 753 (3d Cir.1989), and United States v. Ruff, 717 F.2d 855, 857–58 (3d Cir.1983)). However, because Bruton is no more than a by-product of the Confrontation Clause, the Court's holdings in Davis and Crawford likewise limit Bruton to testimonial statements. See, e.g., United States v. Wilson, 605 F.3d 985, 1017 (D.C.Cir.2010) (holding that alleged Bruton claim did not violate the Confrontation Clause because the statements were not testimonial). Any protection provided by Bruton is therefore only afforded to the same extent as the Confrontation Clause, which requires that the challenged statement qualify as testimonial. To the extent that we have held otherwise, we no longer follow those holdings. See Monachelli, 884 F.2d at 753 (holding that Bruton applies to statements "made in a non-custodial setting to family and friends"); Ruff, 717 F.2d at 857–58 (same). And because, as discussed above, we have found the Title III recordings not to constitute testimonial hearsay, Bruton provides no solace for Rodriguez or Cruz. United States v. Berrios, 676 F.3d 118 (3rd Cir. 2012).

And, just like that, the Third Circuit, like many courts before it, decided to dispense with decades of precedent by finding that the Bruton doctrine does not apply to nontestimonial hearsay in the wake of Davis and Crawford. And, like many courts before it, the Third CIrcuit has it wrong.

In Berrios, Reinaldo Berrios, Felix Cruz, Troy Moore, and Angel Rodriguez were convicted of crimes arising out of a series of carjackings, an attempted robbery, and the murder of a security guard. At trial, "[t]he Title III recording of [a] conversation between Berrios and Moore formed the cornerstone of the prosecution's case against Rodriguez, Cruz, and Moore...."

After they were convicted, Cruz and Rodriguez appealed, claiming, inter alia, that the admission of the recording was error under the Bruton doctrine. Under that doctrine, the Confrontation Clause of the Sixth Amendment is violated by the admission at a joint jury trial of a co-defendant's statement that facially incriminates another defendant if the co-defendant does not testify at trial. 

And, as is made clear by the block quote that led this post, before the Supreme Court's opinions in Davis and Crawford, the admission of the conversation between Berrios and Moore would have violated the Bruton doctrine assuming (1) that Berrios and Moore did not testify at trial; and (2) that the conversation facially incriminated Cruz and Rodriguez. The fact that the conversation was not "custodial" was irrelevant. But, as the above block quote also makes clear, in the wake of Davis and Crawford, the statements by Berrios and Moore did not run afoul of the Bruton doctrine because they were nontestimonial/noncustodial.

Finally, that block quote makes clear that this change occurred because "[a]ny protection provided by Bruton is...only afforded to the same extent as the Confrontation Clause, which requires that the challenged statement qualify as testimonial." The question is raise in my recent article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine, is how courts across the country are reaching this conclusion.

The key Supreme Court cases here are Parker v. Randolph, 442 U.S. 62 (1979), and Cruz v. New York, 481 U.S. 186 (1987). In Randolph, a plurality of the Court found that the admission of statements that would today be deemed testimonial satisfied the Bruton doctrine despite the declarants not testifying. And, in Cruz, a majority of the Court found that statements that satisfied the prevailing Confrontation Clause test for hearsay at the time (the Ohio v. Roberts adequate indicia of reliability test) nonetheless violated the Bruton doctrine because the declarant did not testify. What these cases thus tell us is that the protection provided by Bruton is different than the protection provided by the Confrontation Clause under the Roberts/Crawford/Davis line of cases.

And indeed, Crawford tells us the same. As I noted in my article, in Crawford.

According to the Court, with one arguable exception, its cases remained faithful to the Framers' understanding of the Confrontation Clause: "Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine." In reaching this conclusion, however, the Court noted that its prior opinions in Parker v. Randolph and Cruz v. New York did not address the question of whether testimonial hearsay by an unconfronted declarant violated the Confrontation Clause but instead "addressed the entirely different question whether a limiting instruction cured prejudice to codefendants from admitting a defendant's own confession against him in a joint trial."

This of course makes sense because otherwise Randolph would not have been faithful to the Framers' understanding that testimonial statements by absent declarants cannot be admitted unless such declarants are unavailable and the defendant was previously able to cross-examine them (which was not the case in Randolph), In effect, then, the Court in Crawford was saying that the Confrontation Clause line of cases dealing with hearsay admitted under a hearsay exception is entirely separate from the Bruton doctrine line of cases. So, why do courts like the Sixth Circuit continue to merge them in a way that breaks from precedent and severely circumscribes Bruton?

-CM

No Lie: California Case Reveals The State Has A Specific Rule Banning The Admission Of Polygraph Results

As I have noted before, New Mexico is the only United States jurisdiction that makes polygraph evidence presumptively admissible barring a prior stipulation by the parties. That said, in most jurisdictions, there is not a specific rule of evidence deeming polygraph results per se inadmissible; instead, courts in most jurisdictions simoly deem such results inadmissible under a variety of evidentiary rules. As the recent opinion in People v. Wherry, 2012 WL 2528304 (Cal.App. 1 Dist. 2012), makes clear, however, California does have a specific rule of evidence dealing with polygraph results.

In Wherry, Clifton Wherry, Jr. and Dwight Campbell were both convicted of felony murder, which occurred during the robbery of an armored truck Wherry was driving. Before trial,

Wherry moved to suppress his confession to police, claiming it was involuntary because Sergeant Jones threatened him with the death penalty and promised him a two-year prison deal if he confessed. In support of his motion to suppress, Wherry sought to introduce the results of a polygraph test he took, which he maintained supported his claim Jones offered him a two-year deal. The court denied his motion....

After he was convicted, Wherry appealed, claiming, inter alia, that the exclusion of the polygraph results violated his right to present a defense. The Court of Appeal, First District, Division 1, California, disagreed, initially noting that the polygraph results were inadmissible under California Evidence Code Section 351.1(a), which provides that

Notwithstanding any other provision of law, the results of a polygraph examination, the opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of a polygraph examination, shall not be admitted into evidence in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court, unless all parties stipulate to the admission of such results.

The court then noted that "[t]he California Supreme Court has repeatedly held section 351.1 does not violate a criminal defendant's constitutional rights." Finally, the court found that its opinion was consistent with United States v. Scheffer, 523 U.S. 303 (1998), which found that Military Rule of Evidence 707's per se ban on the admissibility of polygraph results did not violate the defendant's right to present a defense.

-CM

Protective Shield: Supreme Court Of Kentucky Finds Rape Shield Rule Precludes Evidence Of Victims' Prostitution

Similar to its federal counterpart, Kentucky Rule of Evidence 412(a), Kentucky's rape shield rule, provides that

(a)  Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c).

(1)  Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2)  Evidence offered to prove any alleged victim's sexual predisposition. 

And, like its federal counterpart, Kentucky Rule of Evidence 412(a) is subject to certain exceptions. So, were those exceptions triggered in Edmonds v. Commonwealth, 2012 WL 2362429 (Ky. 2012)?

In Edmonds, Robert Edmonds 

was convicted of raping and sodomizing two women -- EV in 2005, and HN in 2007. At trial, [Edmonds] indicated it was his wish to represent himself, and he was allowed to do so. He claimed that, while he did engage in the sexual acts with his alleged victims, the acts were consensual.

After he was convicted, Edmonds appealed, claiming, inter alia, that the trial court erred in deeming certain evidence inadmissible under Kentucky's rape shield rule. Specifically, Edmonds claimed that he should have been able to present evidence that EV and HN were prostitutes to support his theory of the case, which is that "HN and EV were prostitutes with whom he engaged in consensual sex, but refused to pay."

The Supreme Court of Kentucky initially found that evidence that HN and EV were prostitutes was evidence of "other sexual behavior," which is inadmissible under Kentucky Rule of Evidence 412(a)(1). Next, the court that the subject evidence was inadmissible under the various exceptions to the rape shield rule. Specifically, Kentucky Rule of Evidence 412(b) provides that

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) any other evidence directly pertaining to the offense charged. 

The Supreme Court of Kentucky found that (B) didn't apply because Edmonds did not claim that he had previously solicited EV or HN as prostitutes. And the court also found that (C) didn't apply because evidence that the alleged victims were prostitutes did not directly pertain to the crimes charged (It is interesting to note that  Kentucky Rule of Evidence 412(b)(C) is different from its federal counterpart, which provides an exception for "evidence whose exclusion would violate the defendant’s constitutional rights.").

That keft (B), and the Kentucky Supremes noted Edmonds sought "to introduce evidence that, in addition to his DNA, the semen sample from EV's panties contained the DNA of three other men." But the court found this evidence irrelevant because "DNA testing showed [Edmonds'] semen present in the cases of both women, and neither of the women claimed to have sustained any physical injuries."

-CM

This Is (Not) A Recording: Court Of Appeals Of Ohio Finds Police Statement Satisfies Neither Rule 612 Nor Rule 803(5)

Like its federal counterpart, Ohio Rule of Evidence 612 allows an attorney to use a writing (or anything else) to refresh the recollection of a witness who once had personal knowledge so that the witness can then testify based upon his refreshed recollection. And, if this doesn't work, similar to its federal counterpart, Ohio Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his 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 State v. Trotter, 2012 WL 2354342 (Ohio App. 8 DIst. 2012), the defendant claimed that the procedure used by the prosecution in using a witness' statement to the police satisfied neither of these rules. So, was he right?

In Trotter, David Trotter was convicted of rape and kidnapping. After he was convicted, he appealed, claiming, inter alia, that the prosecution's procedure in using the statement of prosecution witness Sean Wood was improper. Specifically,

Wood testified that he looked at the statement he made to the police about the night in question before he testified and while he was on the witness stand, but that it did not refresh his memory. For example, asked what defendant said to Wood on the phone on March 26, 2009, Wood replied, "I don't remember. I read [the statement], but it doesn't look familiar." Wood also testified that he did not remember what defendant said when defendant came out of the upstairs bedroom where [the alleged victim] was. The state instructed Wood to read his statement to the police, and after doing so, Wood testified, "I don't remember him saying that to me, though."

Over defense objections, Wood read portions of his statement into the record and, after prompts from the court, testified to certain things from memory. The hearsay statements that Wood improperly read into the record [we]re as follows: First, before Wood arrived at defendant's house on the night in question, defendant allegedly told Wood on the phone that there was a drunk 14–year–old passed out at defendant's house. And second, defendant allegedly said that he had sex with [the alleged victim] when he walked out of the upstairs bedroom where [the alleged victim] was passed out.

The Court of Appeals of Ohio, Eighth District, agreed with Trotter that this procedure was improper under either Rule 612 or Rule 803(5). According to the court,

Further examination of Wood regarding his statement was improper under Evid.R. 612, because Wood testified that it did not refresh his memory. Additionally, the State did not establish that the statement accurately reflected Wood's knowledge at the time of the police interview. In this regard, Wood's testimony regarding his statement was improper under Evid.R. 803(5). 

-CM

Let Sniffing Dogs Lie?: Leslie Shoebotham's Brief Of Amici Curiae In Jardines v. State, Drug-Sniffing Dogs & False Positives

Accordingly, the use of a well-trained narcotics-detection dog—one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U.S., at 707, 103 S.Ct. 2637—during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement. Illinois v. Caballes, 543 U.S. 405, 409 (2005).

In sum, a "sniff test" by a drug detection dog conducted at a private residence does not only reveal the presence of contraband, as was the case in the federal "sui generis" dog sniff cases discussed above, but it also constitutes an intrusive procedure that may expose the resident to public opprobrium, humiliation and embarrassment, and it raises the specter of arbitrary and discriminatory application. Given the special status accorded a citizen's home under the Fourth Amendment, we conclude that a "sniff test," such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a "search" within the meaning of the Fourth Amendment. As such, it warrants the safeguards that inhere in that amendment—specifically, the search must be preceded by an evidentiary showing of wrongdoing. Jardines v. State, 73 So.3d 34, 49 (Fla. 2011).

So, according to the United States Supreme Court in Caballes, the use of a drug-sniffing dog around an automobile is not a "search" for Fourth Amendment purposes while, according to the Florida Supreme Court in Jardines, the use of a drug-sniffing dog at the front door of a house is a "search" for Fourth Amendment purposes requiring probable cause. This thus explains why the United States Supreme Court granted cert in Jardines to resolve the following issue: Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

In response to the cert grant, Leslie Shoebotham, an Associate Professor at the Loyola University New Orleans College of Law has written a terrific Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, 2012 WL 2641847 (2012), arguing in favor of the conclusion of the Supreme Court of Florida that a dog sniff at the front door of a house is a Fourth Amendment "search." In many ways, the brief is an extension of Professor Shoebotham's great article, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829 (2009), which I wrote about here, and I was happy to be one of the professors to sign onto her brief. In this post, I will (1) detail some of the examples used by Professor Shoebotham to explain her argument and then (2) include her own summary of the brief. 

In Kyllo v. United States, 533 U.S. 27 (2001), the United States Supreme Court held that the use of a thermal imaging device to monitor the radiation of heat from a home was a Fourth Amendment search. In its aforementioned opinion in Caballes, the Court subsequently noted that "[c]ritical to [the Kyllo] decision was the fact that the device was capable of detecting lawful activity - in that case, intimate details in a home, such as 'at what hour each night the lady of the house takes her daily sauna and bath.'"

So, how likely are drug-sniffing dogs to detect lawful activity? That is the main question that Professor Shoebotham addresses in her brief, with her general point being that "[s]tudies show that drug-detection dogs alert to certain volatile substances that are found in street drugs, not the illegal drug itself." So, let's then get to specifics.

Cocaine and Methyl Benzoate

Let's say that a drug-sniffing dog is sniffing for cocaine. "In cocaine, methyl benzoate is a decomposition product or break-down product that is produced when cocaine hydrochloride is exposed to humid air." Some drug-detection dogs are trained to alert exclusively to methyl benzoate while others "undergo field training for cocaine detection using methyl benzoate training devices." So, what else contains methyl benzoate?  As Professor Shoebotham notes,

Snapdragons. Petunias. Perfume. Food additives. Cocaine. Common to all of these items is methyl benzoate, also known by its more "romantic" name, Oil of Niobe.

This can create false positives because "methyl benzoate is found in such abundance in household sources that it surpasses a detection dog's sniff threshold."

Heroin and Acetic Acid 

Or, let's say that a drug-sniffing dog is sniffing for heroin. "Studies show that acetic acid is the dominant odor signature of heroin and is the organic compound to which drug-detection dogs alert." Again, Professor Shoebotham points out that this creates a problem:

Vinegar. Aspirin. Food additives. Wart removers. "Green" or "Earth-friendly" household cleaning supplies. Heroin. Common to all of these items is acetic acid. 

Other Illegal Drugs

What if a dog is sniffing for MDMA, commonly known as "Ecstacy." Drug-detection dogs alert do not alert to MDMA but instead alert to the volatile molecule, piperonal, which

appears in a wide array of ordinary household products, like (1) soap,...(2) food additives and flavor enhancers,...(3) even lice repellents.

And how about marijuana? Professor Shoebotham notes that "while 'interference' studies exist there is otherwise no empirical data on canine marijuana detection and the related issue of whether 'smell-alike'plants exist that could produce a positive canine alert." That said, there is at least anecdotal evidence of false positives. For example,

In Britain, a pink flowering plant, called moss phlox, when grown in suburban gardens has produced positive canine drug-detection alerts and police raids on homes. 

Professor Shoebotham's Own Take

The above drives home Professor Shoebotham's main point: that there drug-sniffing dogs are clealy capable of detcting lawful activity, which means that, pusuant to Kyllo, drug sniffs of the front doors of houses should be deemed Fourth Amendment searches. Here is her summary of the brief:

The Fourth Amendment Scholars Amici Brief considers the scientific literature concerning canine drug-detection sniffs and analyzes how those findings impact the legal analysis of canine sniffs of the home.  To show that drug-detection sniffs are capable of revealing lawful activity within a home, the Brief uses published scientific studies which establish that in most cases drug-detection dogs are unable to detect the contraband itself, but instead alert to the presence of volatile break-down products of the contraband.  Importantly, these break-down products are not illegal and are not even unique to contraband.  In fact, these alert-producing molecules and compounds are found in substantial quantities in the ordinary home.  Using scientific studies that measure canine detection thresholds for these alert-producing substances, the Brief then juxtaposes those detection thresholds against the amounts that these molecules and compounds appear in ordinary household items.  Because these alert-producing substances are found in household items in amounts that exceed a detection dog’s alert threshold, the Brief argues that a canine drug-detection sniff of a home is capable of revealing lawful activity within the home, and is therefore a "search" under the Fourth Amendment. 

-CM

It's So Juvenile: Court Of Appeals Of Minnesota Finds An Extended-Jurisdiction Juvenile Adjudication Not Covered By Rule 609(d)

Minnesota Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is not admissible under this rule unless permitted by statute or required by the state or federal constitution.

In State v. Jones, 2012 WL 2368839 (Minn.App. 2012), the defendant appealed from his conviction for being a prohibited person in possession of a firearm, arguing, inter alia, that the admission of evidence of his extended-jurisdiction juvenile adjudication was plain error. So, why did the Court of Appeals of Minnesota deny his appeal in spite of Rule 609(d)?

In Jones,

In 2006, when...Prince Antonio Jones was 17, he was convicted as an extended-jurisdiction juvenile (EJJ) for felony possession of a short-barreled shotgun....He was therefore a person prohibited from possessing a firearm....In 2010, when [Jones[ was 20, and while he was on probation for the EJJ conviction, two police officers saw him remove a gun from his waistband and throw it up to the roof of a garage.

Jones was thus charged with being a prohibited person in possession of a firearm. After he was convicted, Jones appealed, claiming, inter alia, that the trial court improperly allowed the prosecution to impeach him with evidence of his EJJ adjudication.

The Court of Appeals of Minnesota rejected this argument, finding that "[t]his argument assumes that an EJJ conviction is a 'juvenile adjudication.'" And, according to the court, 

The only support appellant offer[ed] for this assumption is negative: he relies on Minn.Stat. § 260B.245, subd. 1(a) (2010) (providing that "An extended jurisdiction juvenile conviction shall be treated in the same manner as an adult felony criminal conviction for purposes of the Sentencing Guidelines") and argues that, because the statute provides no other similarity between EJJ convictions and adult convictions, EJJ convictions are equivalent to juvenile adjudications.

The court then found this argument to be inapposite because

the statute, taken in its entirety, refutes rather than supports appellant's argument because it makes juvenile adjudication and EJJ conviction not equivalent but mutually exclusive. See, e.g., Minn.Stat. § 260B.245, subd. 1(a) ("No adjudication upon the status of any child in the jurisdiction of the juvenile court shall operate to impose any of the civil disabilities imposed by conviction...nor shall this adjudication be deemed a conviction of crime"); see also Minn.Stat. § 260B.255, subd. 1 (2010) (providing that a violation of a state law by a child under 18 "is not a crime unless the juvenile court:...(3) convicts the child as an extended jurisdiction juvenile...."). Appellant's assumption that an EJJ conviction is the equivalent of a juvenile adjudication is without support, and the admission of testimony about an EJJ conviction is not excluded under Minn. R. Evid. 609(d).

My response is that the situation seems a good deal more complicated that the Court of Appeals of Minnesota made it seem. First of all, let's look at the full language of Minn.Stat. § 260B.255, subd. 1(3), which the Court of Appeals of Minnesota cited for the proposition that a violation of a state law by a child under 18 "is not a crime unless the juvenile court:...(3) convicts the child as an extended jurisdiction juvenile...." In its entirety, this subsection actually states:

A violation of a state or local law or ordinance by a child before becoming 18 years of age is not a crime unless the juvenile court:

(3) convicts the child as an extended jurisdiction and subsequently executes the adult sentence under section  260B.130, subdivision 5." (emphasis added).

This seems like a pretty key distinction to me. In an EJJ case, a trial is held in juvenile court, and, if the defendant is found guilty, the juvenile court shall

(1) impose one or more juvenile dispositions under section 260B.198; and

(2) impose an adult criminal sentence, the execution of which shall be stayed on the condition that the offender not violate the provisions of the disposition order and not commit a new offense.

So, with an EJJ adjudication, an offender is given (1) an actual juvenile disposition, and (2) an adult sentence that is stayed and only imposed if the offender violates the provisions of the disposition order or is convicted of a new offense. Therefore, the EJJ is properly described as a blended sentencing law, which shares features of a juvenile adjudication and an adult conviction.

The Court of Appeals of Minnesota found that a "juvenile adjudication and EJJ conviction [are] not equivalent but mutually exclusive" because an EJJ adjudication differs in at least two regards from a classic juvenile adjudication: (1) it is treated like an adult conviction for sentencing purposes, and (2) it can become a crime if the offender violates the provisions of the disposition order or is convicted of a new offense. But I would note that an EJJ adjudication differs in at least two regards from a classic adult conviction: (1) it takes place in juvenile, rather than adult, court; and (2) if the offender is found guilty, the court imposes a juvenile disposition. This of course makes sense because, as noted, an EJJ is a blended sentencing law.

So, is an EJJ adjudication a juvenile adjudication or a criminal conviction? Let's look at two different situations. In the first situation, we have an EJJ adjudication, and the offender has not yet violated the provisions of the disposition order or been convicted of a new offense. This takes us back to Minn.Stat. § 260B.255, subd. 1(3), which, again, states that a violation that leads to an EJJ adjudication is not a crime unless the juvenile court:

(3) convicts the child as an extended jurisdiction and subsequently executes the adult sentence under section  260B.130, subdivision 5.

Therefore, under these circumstances, an EJJ adjudication is not a conviction of a crime. So, is this type of EJJ adjudication a juvenile adjudication that cannot be used to impeach the offende under Minnesota Rule of Evidence 609(d)? It doesn't matter because the offender was not convicted of a crime, so the adjudication is not admissible to impeach the offender under Minnesota Rule of Evidence 609(a) ("For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted [in certain circumstances]"). 

In the second situation, we have an EJJ adjudication, and the offender has violated the provisions of the disposition order or has been convicted of a new offense. In this case, Minn.Stat. § 260B.255, subd. 1(3) tells us that the EJJ adjudication is a criminal conviction. But Minn.Stat. § 260B.245, subd. 1(a) tells us that

No adjudication upon the status of any child in the jurisdiction of the juvenile court shall operate to impose any of the civil disabilities imposed by conviction, nor shall any child be deemed a criminal by reason of this adjudication, nor shall this adjudication be deemed a conviction of crime, except as otherwise provided in this section or section 260B.255. An extended jurisdiction juvenile conviction shall be treated in the same manner as an adult felony criminal conviction for purposes of the Sentencing Guidelines. The disposition of the child or any evidence given by the child in the juvenile court shall not be admissible as evidence against the child in any case or proceeding in any other court, except that an adjudication may later be used to determine a proper sentence, nor shall the disposition or evidence disqualify the child in any future civil service examination, appointment, or application. (emphasis added).

So, is the EJJ adjudication in this case a juvenile adjudication? Again, it doesn't matter because Minn.Stat. § 260B.245, subd. 1(a) gives us an independent ground for deeming it inadmissible.

-CM

Can I Get A Summary?: ED Mich. Opinion Sets Out 5 Preconditions To Admission Of Summary Charts Under Rule 1006

Federal Rule of Evidence 1006 provides that

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

The recent opinion of the United States District Court for the Eastern District of Michigan in United States v. Rogers, 2012 WL 2339343 (E.D.Mich. 2012), does a nice job of laying out five preconditions that a party must satisfy to admit summary charts under Rule 1006.

Unfortunately, the opinion in Rogers doesn't give us the facts of the case, but it does set forth the summary chart that the government sought to admit against the defendant:

National City Bank–Account Number ending X0256

Account Summary

For the period February 21, 2007 through February 22, 2008

 

Period	Date Range	Beginning Balance	Deposits/Credits	Checks/Debits	Ending Balance
1	02/21/2007–03/22/2007	$1,487.78	$4,093.52	$5,354.23	$227.0 7
2	03/23/2007–04/23/2007	227.07	3,055.52	2,947.53	335.06
3	04/24/2007–05/23/2007	335.06	65,926.95	65,571.72	690.29
4	05/24/2007–06/22/2007	690.29	3,096.38	3,171.13	615.54
5	06/23/2007–07/25/2007	615.54	3,106.52	3,333.72	388.34
6	07/26/2007–08/24/2007	388.34	2,956.57	2,512.57	832.34
7	08/25/2007–09/24/2007	832.34	3,256.52	3,755.82	333.04
8	09/25/2007–10/24/2007	333.04	3,006.52	3,054.39	285.17
9	10/25/2007–11/26/2007	285.17	2,995.58	2,700.46	580.29
10	11/27/2007–12/21/2007	580.29	3,095.58	3,020.47	655.40
11	12/22/2007–01/24/2008	655.40	2,954.64	3,479.64	130.40
12	01/25/2008–02/22/2008	130.40	6,657.66	5,242.15	1,545.91
			$104,201.96	$104,143.83

From this, I think it is safe to assume that there were questions about the origin of the $65,926.95 in deposits/credits from the date range of 04/24/2007-05/23/2007. The question, though was whether this summary chart could be admitted under Rule 1006, and the Eastern District of Michigan noted that, in the Sixth Circuit, five preconditions to the admission of summary charts under the Rule:

[1] The documents...must be so voluminous that they cannot conveniently be examined in court by the trier of fact, That is, the documents must be sufficiently numerous as to make comprehension difficult and inconvenient[;]

[2] [T]he proponent of the summary must also have made the documents available for examination or copying, or both, by other parties at [a] reasonable time and place[;]

[3] [T]he proponent of the summary [must] establish that the underlying documents are admissible in evidence, Thus, if the underlying documents are hearsay and not admissible under any exception, a chart or other summary based on those documents is likewise inadmissible[;]

[4] [A] summary document must be accurate and nonprejudicial. This means first that the information on the document summarizes the information contained in the underlying documents accurately, correctly, and in a nonmisleading manner, Nothing should be lost in the translation [; and]

[5] [A] summary document must be properly introduced before it may be admitted into evidence.

The court then found that each of the government satisfied each of these preconditions:

First

First, the underlying documents—exhibit 15—are sufficiently voluminous to make review inconvenient. According to the Government, the purpose of the summary exhibits is to provide a snapshot of the Account records. Using only exhibit 15 could prove inconvenient for the jury, given that exhibit 15 is 175 pages of bank records—statements, canceled checks, deposit slips and the like—and uses formatting, terminology and abbreviations that may be unfamiliar or difficult to comprehend. By contrast, the Exhibits consist of two one-page documents: (1) a table showing the total credits, total debits and beginning and ending account balances for each month for a period of 12 months; and (2) a line chart showing the same debit and credit information as the table. Moreover, Defendant does not dispute the accuracy of the information in the Exhibits, and the underlying documents (exhibit 15) are stipulated to and have already been received into evidence.

Second

Second, the government has “made the documents available for examination or copying...at [a] reasonable tune and place,” since Defendant's counsel has stipulated to exhibit 15 and does not dispute the accuracy of the summary information found in the Exhibits.

Third

Third, the underlying documents are themselves admissible, since the bank records forming the basis for exhibits 15a and 15b have already been stipulated to and entered into evidence as exhibit 15.

Fourth

Fourth, with respect to the summary having to be fair and accurate, the Government declares that it has made every effort to be scrupulously careful in preparing the Exhibits, and Defendant has thus far not raised any objections in that regard.

Fifth

Fifth, with respect to a proper introduction, the Government states the Exhibits will be introduced by the FBI agent who obtained the underlying bank records, supervised the preparation of the Exhibits, and verified their accuracy as compared to exhibit 15. The agent will be subject to cross-examination....

-CM