July 21, 2012
No Lie, Take 2: Supreme Court Of Vermont Declares Polygraph Evidence Per Se Inadmissible Under Rule 403
Previously, I have noted that polygraph test results are inadmissible in every United States jurisdiction except New Mexico barring a prior stipulation by both parties. It turns out, though, that Vermont courts had never addressed the issue until the recent opinion of the Supreme Court of Vermont in Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 2012 WL 975429 (Vt. 2012). So, how did the court rule?In R. Brown, the following facts were not in dispute:
Rathe Salvage is in the business of acquiring old motor vehicles to sell for spare parts and scrap metal. For several decades Rathe Salvage did business with hauler, which is in the business of crushing and transporting scrap metal for sale. The typical pattern of their transactions was that the parties would agree on the price per ton of scrap metal, Rathe Salvage would identify the junked vehicles to be sold, and hauler would crush the junks for transport to a Montreal steel mill. It was understood that each load would be weighed at the mill, hauler would be paid by the mill, and Rathe Salvage would be paid by the hauler at the previously agreed upon price per ton. Rathe relied upon on handwritten weigh slips presented by hauler to figure the tons for which their price per ton was due.
In late 2003, Rathe Salvage terminated this arrangement and contracted with another trucking company [R. Brown & Sons, Inc.]. Although the replacement company bought and transported what Rathe Salvage contended were the same kinds of loads, Rathe noticed that the typical load weights reported by the new trucker—and thus, the typical payments received—were significantly higher than those reported by defendant hauler. Although hauler offered several reasons why the replacement trucker's loads were heavier, Rathe Salvage inferred from the difference that hauler had been submitting fraudulent weigh slips, and it sued for, for purposes of this appeal, breach of contract, fraud, and consumer fraud, the last claim based on the allegation that Rathe was a consumer of hauler's services.
At the end of trial, "defendants R. Brown & Sons, Inc., a scrap metal hauling company, and its principal, Robert Brown (both referred to as hauler), were found liable for breach of contract, common law fraud, trespass, breach of the implied covenant of good faith and fair dealing, and consumer fraud." The defendants thereafter appealed, claiming, inter alia, that "the case should be remanded due to the trial court's refusal to conduct a Daubert hearing on the admissibility of hauler's polygraph, or lie detector, testing before excluding such evidence from trial."
In addressing this issue, the Supreme Court of Vermont noted that "[t]he admissibility of polygraph evidence is one of first impression in Vermont." The trial court had declined to hold a Daubert hearing on the ground that "even if the tendered polygraph evidence had ample reliability and relevance so as to be admissible under Rule 702, it would be excluded under Rule 403," which provides that
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
The Supreme Court agreed with the trial court's conclusion for a number of reasons, including the following:
(1) "It is long settled that 'the jury is the lie detector'" and "the polygraph cannot but usurp the jury's lie detecting function;"
(2) "Questions concerning the polygraph's reliability in a particular case would unavoidably invite testimonial duels between experts over the tactics and circumstances of the examination itself;"
(3) "The polygraph expert's opinion in this case vouching for hauler's denial of fraud would amount to an opinion confirming hauler's veracity and the legal insufficiency of Rathe Salvage's fraud claim against him."
(Hat tip to Marc Ginsberg for the link)
July 20, 2012
The Dark Knight Rises, Again: D.C. Circuit Case Involves Drunk Man Dressed As Batman & Alleged Employee Admissions
Da Da Da Da DA DA BATMAN! As with a large swath of the country, I've been hooked on Batman since an early age. It started with watching the campy Adam West series from the 1960s in syndication as a kid. My brother and I were the Dynamic Duo of Batman and Robin (in Underoos) for Halloween. Then, it was all about Tim Burton's "Batman" movie, which (as was the case in many households), was the first movie that we bought on VHS. Soon thereafter, I got the Batman video game, which was in constant rotation on my NES. Many people found "Batman Returns" too dark, but I thought that it was better than the original, with Michelle Pfeiffer being the perfect Catwoman, Danny DeVito being suitably creepy as the Penguin, and Christopher Walken doing his best Christopher Walken. But then, Joel Schumaker deep sixed the franchise with the silly "Batman Forever" and the deplorable "Batman & Robin."
Eight years later, Christophen Nolan (the genius director behind movies such as "Memento" and "Inception") would resuscitate the Caped Crusader with the terrific "Batman Begins" and then follow it up with the Heat-ish "The Dark Knight" (which I saw them filming on my way to work for a while). Now, Nolan has completed his Batman trilogy with "The Dark Knight Rises," with many speculating that the villain of Bane will have an effect on the Presidential election. If that's the case, it wouldn't be the first time that the Batman will have an effect on a governmental institution. Instead, the Caped Crusader has long been a part of our nation's judicial system as was the case in Belton v. Washington Metropolitan Area Transit Authority, 20 F.3d 1197 (D.C. Cir. 1994).In Belton,
Michael Belton spent the evening of July 10, 1989 [less than a month after the release of Burton's "Batman"] outfitted in a Batman cape, roaming the streets of Georgetown and taunting motorists. His blood alcohol level, measured when the evening's revels came to a disastrous end, was .424 percent....Keith Brice, a bus driver for the Washington Metropolitan Area Transit Authority ("WMATA"), noticed Belton on his early evening rounds and later encountered him directly at the intersection of M St. and Wisconsin Avenue. As the bus waited at a red light before turning right onto Wisconsin Avenue, Belton approached, cursing and banging on the bus door. Because it is against standard WMATA policy for a bus driver to accept riders except at a bus stop, Brice waved Belton away. Seeing Belton move out of sight, Brice inferred that he had retreated to a position of safety on the sidewalk. In fact, however, Belton had flattened himself against the bus, evidently invisible to Brice because of the side-view mirror's "blind spot". When the light turned green, Brice began to turn onto Wisconsin, possibly—the evidence is in conflict—in the face of Belton's continued knocking on the bus door. Belton slid beneath the bus; although Brice stopped the bus before the wheels could roll over Belton, the bus's undercarriage inflicted serious injuries.
Belton subsequently brought a negligence action, and the jury awarded him $619,000 in damages. In response, WMATA argued that it was entitled to judgment as a matter of law and, In the alternative, asked for a new trial. One of the grounds for WMATA's appeal was that the district court erred in applying Federal Rule of Evidence 801(d)(2)(D), which provides that a statement is not hearsay if the statement is offered against an opposing party and
was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed....
an officer who investigated the accident later the same evening and talked with a number of witnesses testified that the bus driver had told him that as he "started to make his turn", Belton "was either walking and/or running alongside of the bus continually banging on the bus". This contradicted the defendant's theory at trial that there was nothing to put the driver on notice of Belton's peril, and specifically contradicted Brice's trial testimony that Belton's banging stopped altogether after he waved Belton away.
WMATA's argument was
that in fact the officer was unable to say whether the statement about continued banging on the door came from Brice or from other persons the officer interviewed, and that therefore the out-of-court declaration was not shown to have been an admission....The officer indeed testified that he could not separate the statements of the bus driver from ones made by other witnesses or a fellow officer, although in context the concession may have referred only to the officer's written report, which WMATA used on cross-examination.
The problem for WMATA was that it did not raise this issue at trial, but the D.C. Circuit found that this problem was overcome:
WMATA raised no hearsay objection at trial, but plaintiff has waived the waiver by not raising defendant's failure on appeal....Defendant's omission may account for the obscurity of the record. On remand, assuming proper objection by WMATA, the statement is clearly not allowable as an admission unless the officer can actually trace it to Brice.
July 19, 2012
Who Are You?: Court Of Criminal Appeals Of Tennessee Find's Juror's Knowledge Of Defendant Doesn't Require New Trial
A defendant, who had previously been convicted of a felony drug offense, is charged with being a felon in possession of a firearm. During voir dire a prospective juror states that he did not know the defendant and is selected from the venire. After the defendant is convicted, the defendant moves for a new trial and calls the juror, who testifies that he in fact knew that the defendant "had spent a good deal of time in the penitentiary" but didn't recognize the defendant until after he was selected as a juror. Should the court find that the defendant is entitled to a new trial.
The defendant, who had previously been convicted of a felony drug offense, was convicted as a felon in possession of a firearm after a jury trial and sentenced to six years in prison. According to the Court of Criminal Appeals of Tennessee in State v. Taylor, 2012 WL 2308088 (Tenn.Crim.App. 2012), the answer is "no."
The facts in Taylor were as stated above, with the juror being able to testify pursuant to Tennessee Rule of Evidence because his knowledge of the defendant's history constituted extraneous prejudicial information. The question thus became whether this knowledge deprived the defendant of his Sixth Amendment right to an impartial jury.
In addressing this issue, the Court of Criminal Appeals of Tennessee noted that in State v. Akins, 867 S.W.2d 350, 354 (Tenn.Crim.App.1993), it had found "that when a juror's voir dire responses are false or misleading, intent is not dispositive of the issue, and a mistaken answer also raises the presumption of bias." This presumption, however, can be overcome, and the court found that it was in Taylor.
The problem for the defendant in Taylor was that he "stipulated...a prior conviction for a felony drug offense...." Therefore, the juror's "knowledge of the defendant's criminal history...differed only slightly from the proof presented at trial," meaning that, according to the court, the defendant was not deprived of his right to an impartial jury.
July 18, 2012
Hold On Luce-ly: Court Of Appeals Of Georgia Finds Luce Applies To 10+ Year Old Convictions
In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions under Federal Rule of Evidence 609(a) in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. So, does the same reasoning apply under Federal Rule of Evidence 609(b) and state counterparts? According to the recent opinion of the Court of Appeals of Georgia in Warbington v. State, 2012 WL 2580798 (Ga.App. 2012), the answer is "yes."In Warbington, Richard Warbington
was indicted on multiple charges stemming from his physical and verbal attacks upon his girlfriend, her family members, her friend, and her neighbor. Before his March 2011 jury trial began, Warbington moved to preclude the state from using his numerous prior convictions to impeach him if he testified. Warbington made no commitment that he would testify if his motion were granted, nor did Warbington proffer to the court what his testimony would be. The trial court ruled in Warbington's favor, except in regard to two felony convictions, which the court determined fell within the category of permissible impeachment evidence under OCGA § 24–9–84.1. More specifically, the court ruled that a 2009 drug conviction was permissible under subsection (a)(2) and that a 2000 aggravated assault conviction was permissible under subsection (b) of OCGA 24–9–84.1. Warbington did not testify, however, and the two convictions were not introduced in evidence at trial. The jury returned guilty verdicts.
After Warbington was convicted, he appealed, claiming that the trial court erred by deeming his 2000 aggravated assault conviction admissible to impeach him in the event that he testified. Subsection (a)(2) of OCGA § 24–9–84.1 is the counterpart to Federal Rule of Evidence 609(a)(2), with both rules deeming a conviction for a crime of dishonesty or false statement per se admissible to impeach the credibility of a witness. Meanwhile, subsection (b) of OCGA § 24–9–84.1 is the counterpart to Federal Rule of Evidence 609(b), with both deeming a conviction for a crime that is more than ten years old only admissible to impeach the credibility of a witness if, inter alia, its probative value substantially outweighs its prejudicial effect.
Because Georgia courts adhere to Luce, Warbington clearly failed to preserve the issue of whether his 2009 drug conviction was admissible. But does Luce apply to convictions that are more than ten years old, such as the 2000 aggravated assault conviction? This was the issue of first impression addressed by the Court of Appeals of Georgia in Warbington. And that court answered the question in the affirmative,
conclud[ing] that the rationale underlying Luce...controls here, where Warbington did not testify. The record consequently is not amenable to meaningful appellate review. Because Warbington declined to testify, we will not speculate on the substantive merits of his contention that the trial court's pretrial ruling was prejudicial error.
July 17, 2012
Encyclopedia Brown And The Case Of The Third-Party Attorney-Client Privilege
When I was preparing my post about Ridley Scott last month, I was reminded that the filmmaker was once slated to direct an Encyclopedia Brown movie. Maybe the financial failure of the "Nancy Drew" movie scared him off or maybe be was frightened by the fact that the HBO series about the boy detective was cancelled after only 8 episodes. Indeed, the HBO series led to a lawsuit, with Encyclopedia Brown Productions president and controlling shareholder Howard David Deutsch being "dissatisfied with HBO's effort to publicize the episodes." Encyclopedia Brown Productions v. Home Box Office, Inc., 1998 WL 734355 (S.D.N.Y. 1988). Personally, I think that Deutsch had a pretty good argument. That series aired in 1989, when I was thirteen and a huge Encyclopedia Brown fan. My brother and I used to read the books regularly (my personal favorite was Encyclopedia Brown and the Case of the Buried Treasure) as did many other kids in our neighborhood. We had HBO at the time, and I don't remember hearing a word about the series. And now, from the looks of it, we won't hear another word about the proposed Ridley Scott film. Apparently, it is in development hell along with the planned Hardy Brothers movie with Ben Stiller and Tom Cruise.
Yesterday, the world learned of the death of Encyclopedia Brown author Donald J. Sobol. With his passing, I thought that I would discuss an interesting case involving Sobol, Encyclopedia Brown, and attorney-client privilege.
In Sobol v. E.P. Dutton, Inc., 112 F.R.D. 99 (S.D.N.Y. 1986),
Between 1962 and 1976 Sobol entered into contracts with Thomas Nelson and Sons (“Nelson”) for the publication of thirteen books in the Encyclopedia Brown series. The contracts granted Nelson certain exclusive rights and enumerated subsidiary rights to be shared by Sobol and Nelson according to fixed percentages. Nelson was authorized to act as attorney-in-fact for Sobol in the sale of the enumerated subsidiary rights. Ten of the thirteen contracts contained a provision requiring Nelson to obtain Sobol's approval for sales of subsidiary rights....
In 1978, Dutton acquired Nelson's rights and obligations under the contracts with Sobol....Defendant Gloria Mosesson was responsible for negotiating with third parties regarding the subsidiary rights, first for Nelson and then for Dutton....
Thereafter, in a third contract referred to as the Corrected Amendment Agreement, Dutton extended the rights granted to Deutsch to include the exclusive right to publish "coloring books, activity books, pop-up books, how-to books, screenplays & novelizations and adaptations thereof, encyclopedias, dictionaries, magic books, any books employing comic style artwork, and miniature size versions of any books published and new miniature books."...
Sobol claim[ed] that Dutton breached its contracts with Sobol by assigning subsidiary rights without his approval, that Dutton and Mosesson breached fiduciary duties owed to Sobol and made fraudulent misrepresentations, that Deutsch's activities under the Corrected Amendment Agreement, which Sobol never signed or agreed to, violate the Lanham Act, and that his attorney Abelman committed legal malpractice in his advice regarding the Amendment Agreement.
After bringing the action, Sobol moved to compel production of various enumerated documents as to which Dutton and Mosesson asserted a claim of attorney-client privilege. In response, the court held that
The first eight documents whose discovery plaintiff seeks to compel are correspondence between employees of Nelson, from whom Dutton purchased the rights to Sobol's books, and W. Michael Milom, Nelson's outside counsel, in the period from November 1977 to January 1979. It is not disputed that the subject of these documents pertains to legal matters and legal advice to Nelson relative to its contracts with Sobol, the plaintiff herein, and that the communications are protected by the attorney-client privilege.
This was great news for Nelson, but, the court then found that,
as to these documents, the privilege does not exist in favor of Dutton. It exists in favor of Nelson, the client. Milom was counsel to Nelson, and not to Dutton. The privilege is that of the client, not that of third parties. Because Dutton was a third party, it may not assert the privilege.
Dutton tried to get around this conclusion by arguing that
it was the "successor in interest to Nelson." Dutton assert[ed] that in the course of the transfer of the ownership of Nelson's rights in the Sobol works to Dutton, Nelson handed over to Dutton its files, including correspondence between Nelson and its attorneys. Accordingly, on the authority of the decision of the Supreme Court in Commodity Futures Trading Commission v. Weintraub, Dutton contend[ed] that "the right to assert (or waive) the privilege passes with the transferred assets."
The court, however, rejected this argument, finding that
Weintraub does not stand for any such proposition. In Weintraub, the Supreme Court elaborated upon the control-group principle announced in Upjohn Co. v. United States, which concerns who may assert or waive the privilege of a corporate client. Weintraub applied that principle in determining who is vested with the power to waive the attorney-client privilege of a debtor in reorganization under Chapter 11. The Court held that the trustee in bankruptcy performs the control functions associated with the management of a solvent corporation and under the Bankruptcy Act has the power to assert or waive the corporate privilege with respect to prebankruptcy communications made by former officers and directors. Dutton's argument is factually flawed since it was not the successor-in-interest of Nelson nor was it the "new management" of Nelson when Nelson transferred to Sobol its rights to the Sobol works.
July 16, 2012
Uninsured: Supreme Court Of Iowa Finds State Of Mind Exception Doesn't Apply To Statements Of Memory Concerning Life Insurance Change
A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.
So, this "state of mind" hearsay exception only applies to a statement of memory or belief if it "relates to the execution, revocation, identification, or terms of declarant’s will." But what about a statement related to the designation of a beneficiary of a life insurance policy? That was the question addressed by the Supreme Court of Iowa in its recent opinion in Pitts v. Farm Bureau Life Ins. Co., 2012 WL 2604622 (Iowa 2012).In Pitts,
Pursuant to a stipulation and order entered in 1989, Thomas Pitts (Tom) became responsible for child support payments for the benefit of his daughter, Jamie Pitts, born April 28, 1987. As part of his support obligation, Tom was required to maintain $35,000 of life insurance payable to his daughter for as long as his child support obligation continued. Unless the child was still in high school, or pursuing further postsecondary education, this support obligation would end in April of 2005....
According to [Tom's wife] Michele, shortly after Tom's support obligation ended in April 2005, Tom asked [his insurance agent Donald] Schiffer to change the beneficiary designation on the life insurance policy so that his daughter would no longer be the primary beneficiary of the first $35,000 of insurance proceeds.
After Tom passed away, the first $35,000 of insurance proceeds were paid to his daughter, prompting Michele to bring an action against Schiffer and the life insurance company. After the district court found for the defendants, Michele appealed.
One of the grounds for her appeal was that the district court erred by precluding her from testifying regarding statements that Tom allegedly made to her about having changed his life insurance beneficiary. According to the Supreme Court of Iowa,
Michele acknowledges that Tom's statement does not relate to the terms of a will. However, she argues that it does relate to the designation of a beneficiary of a life insurance policy and that the scope of rule 5.803(3) should be extended to include statements like Tom's. See Primerica Life Ins. Co. v. Watson, 207 S.W.3d 443, 447–48 (Ark.2004) (applying the exception to statements relating to the declarant's statements regarding his beliefs about the beneficiary of a life insurance policy). In Primerica, the court noted that out of court statements of a declarant's belief are not admissible under the exception found in rule 803(3). Id. at 447–48. However, under Arkansas law, "provisions in life insurance contracts with reference to beneficiaries or changes in beneficiaries are in the nature of a last will and testament and, therefore, 'are construed in accordance with the rules applicable to the construction of wills.'" Id. at 448 (quoting Am. Found. Life Ins. Co. v. Wampler, 497 S.W.2d 656, 658 (Ark.1973)). The court thus found the declarant's statements of belief about the terms of his life insurance policy admissible under the exception to the hearsay rule. Id.
Because Iowa law is different from Arkansas law in this regard, the court found that rule 5.803(3) did not similarly allow for the admission of Tom's alleged statements to Michele. Instead, the Iows Supremes found that
This interpretation runs counter to the express language of rule 5.803(3), which, by its terms, only admits "a statement of memory or belief to prove the fact remembered or believed [if] it relates to the execution, revocation, identification or terms of declarant's will." When the language of the rule is clear, we need not search for meaning beyond the words used. We therefore decline to adopt Arkansas's expanded interpretation of its version of rule 5.803(3).
July 15, 2012
Avoiding A Confrontation, Take 2: Court Of Appeals Of Washington Finds Nontestimonial Hearsay Doesn't Trigger Bruton
Following up on yesterday's post, the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Brown, 2012 WL 1255168 (Wash.App. Div.1 2012), gives us yet another example of a court erroneously concluding that nontestimonial hearsay is beyond the scope of the Bruton doctrine.
In Brown, William Brown was convicted of possession of stolen property in the third degree. At trial, Frank Harris testified that during a drug overdose episode, Brown's co-defendant, Christina Lux, admitted to taking Barbara Brittain's purse and giving it to Brown. Lux did not testify at trial.
After he was convicted, Brown appealed, claiming, inter alia, that Harris' testimony constituted a violation of the Bruton doctrine. Under that doctrine, the admission of a nontestifying co-defendant's statement that facially incriminates a defendant violates the Confrontation Clause. The theory is that, even though the statement is only admissible against the co-defendant (Lux), the jury would use the statement of the defendant's (Brown's) guilt, even if given a limiting instruction only to use the statement as evidence of the co-defendant's (Lux's) guilt.
But, as in the case yesterday, the court rejected this argument, concluding that
In recent years, the Supreme Court has clarified the contours of the confrontation clause in Crawford v. Washington and Davis v. Washington. It is now evident that the confrontation clause does not apply to nontestimonial statements made by an out-of-court declarant. As recognized by several federal and state courts, because Bruton and its progeny are based on the protections afforded by the confrontation clause, after Crawford, Bruton's restriction on the admission of inculpatory statements by a jointly tried codefendant is limited to testimonial hearsay.
This is indeed what several courts have done, but none have explained their reasoning. My response is that the Bruton doctrine is indeed based upon the protections afforded by the Confrontation Clause but that it is based upon a different set of protections than those offered by the Clause in the Ohio v. Roberts/Crawford/Davis line of cases.
Let's look back to Cruz v. New York, 481 U.S. 186 (1987), in which the Supreme Court found that the admission of a nontestifying co-defendant's statement violated the Bruton doctrine despite it arguably satisfying the Ohio v. Roberts "adequate indicia of reliability" test that was the predecessor to the Crawford testimonial/nontestimonial dichotomy. In reaching this conclusion, the Court held that
This case is indistinguishable from Bruton with respect to those factors the Court has deemed relevant in this area: the likelihood that the instruction will be disregarded, Bruton, 391 U.S., at 135, 88 S.Ct., at 1627; the probability that such disregard will have a devastating effect, id., at 136, 88 S.Ct., at 1628; and the determinability of these facts in advance of trial, Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987).
What Cruz tells us is that the protections afforded by the Confrontation Clause apply under the Bruton doctrine if these three factors apply to a nontestifying co-defendant's confession. And what is clear from Brown is that these three factors apply regardless of whether the co-defendant's statement is testimonial. Assume, for instance, that Lux's statement were made to a police officer at the police station rather than to a friend.
Compared to this hypothetical statement to the police officer:
Would the jury be any less likely to disregard a limiting instruction telling it to use Lux's statement to the friend solely as evidence of her guilt?
Would the statement to the friend be any less likely to have a devastating effect?
Would the court be any less able to determine these issues in advance of trial?
Unless, as a general rule, a court could answer any three of these questions in the affirmative, the Bruton doctrine should apply to nontestimonial hearsay. And, to this point, I haven't been able to come up with any good argument that any of these three questions should be answered in the affirmative.