EvidenceProf Blog

Unsequestered Witness: Southern District Of Florida Finds No Need For New Trial Despite Rule 615 Violation

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

So let's say that this witness sequestration rule is violated. What should the court do? According to the recent opinion of the United States District Court for the Southern District of Florida in United States v. McQueen, 2012 WL 163885 (S.D. Fla. 2012), there are 3 options.

In McQueen, Alexander McQueen was convicted of conspiring "to injure, oppress, threaten, and intimidate inmates at [a state prison] in the free exercise and enjoyment of the rights and privileges secured to them by the Constitution and law of the United States, namely, the right to be free from cruel and unusual punishment." Moreover, McQueen and Steven Dawkins were convicted of knowingly falsifying and making false entries in records with the intent to impede, obstruct and influence the investigation and proper administration of a matter within the jurisdiction of the Federal Bureau of Investigation.

After they were convicted, McQueen and Dawkins file a motion for a new trial, claiming a violation of Federal Rule of Evidence 615. Specifically, "[d]uring cross-examination of a Government witness, it was learned that incarcerated Government witnesses had been placed in the same cell together prior to and after testifying at trial, and spoke to each other about the case." The defendants claimed that they were "entitled to a new trial because the Court erroneously denied a motion for mistrial based on a violation of the witness sequestration rule of Federal Rule of Evidence 615."

The Eleventh Circuit disagreed, concluding that

As the Court explained at the time the issue arose during the trial, the Eleventh Circuit has identified three sanctions at a court's disposal when the witness sequestration rule is violated: a citation for contempt; allowing thorough cross-examination before the jury on the facts of the violation; or striking the testimony given—the most serious of the three sanctions. See United States v. Jimenez, 780 F.2d 975, 980 (11th Cir.1986) (citing United States v. Blasco, 702 F.2d 1315, 1327 (11th Cir.1983)). The undersigned applied the standards enunciated in Jimenez, and seeing no "connivance by the witness or counsel to violate the rule,"...found thorough cross-examination about the violation sufficient to cure the violation. The Court sees no reason to deviate from its initial decision now.

-CM

The Interpreter: 9th Circuit Finds Interpreters Don't Need To Give An Oath Before Testifying At A Trial

Federal Rule of Evidence 603 states that

Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

So, under Rule 603, a witness must give an oath or affirmation before he testifies. Meanwhile, Federal Rule of Evidence 604 states that

An interpreter must be qualified and must give an oath or affirmation to make a true translation.

So, before an interpreter may translate the testimony of a witness, he must give an oath or affirmation. Well, not exactly, according to the recent opinion of the Ninth Circuit in United States v. Solorio, 2012 WL 161843 (9th Cir. 2012).

In Solorio, Carlos Quintana Solorio was convicted of possession with intent to distribute 500 or more grams of a substance containing methamphetamine and conspiracy to distribute 500 or more grams of a substance containing methamphetamine. At trial, Miguel Portillo-Rodriguez testified as a witness for the prosecution in Spanish, with translation by interpreters Carol Rhine–Medina and Aracely Callaway.

Solorio did not object to these translations at trial, but he later appealed, claiming, inter alia, that the trial court erred in permitting these translations because neither Rhine–Medina nor Callaway gave an oath or affirmation before testifying. In addressing this issue, the Ninth Circuit initially noted that

Rule 604 does not...indicate whether such an oath must be administered in any particular manner or at any specified time, including whether the oath must be administered for each trial. The Administrative Office of the United States Courts ("AO"), has published guidelines on the administration of oaths to interpreters, observing that "[p]olicies with regard to the oath of interpreters vary from district to district and from judge to judge."...Although some courts administer oaths to interpreters each day, or once for an entire case, others "administer the oath to staff and contract interpreters once, and keep it on file."

The Ninth Circuit then

agree[d] with the courts that proceed in the latter fashion that there is no requirement that the oath be administered during each trial. Most telling in that regard is the absence of any such requirement—or any indication as to how or when interpreters are to be qualified and their oaths administered—in Rule 604. In contrast, Rule 603, applicable to witnesses, specifies that the oath must be administered "[b]efore testifying," suggesting a temporal nexus to the actual appearance of each witness at a particular trial. Unlike witnesses, an interpreter's role is not limited to a specific trial, and there is no apparent reason the oath need be either. In the absence of any requirement that the interpreter's oath be administered during each new trial, it could not have been plain error for the trial judge to have failed to do so.

That said, the court then found that the record did not indicate indicate "that the interpreters took the requisite oath at any time." Thus, the court found error but because it did not find plain error affecting Solorio's substantial rights, it refused to reverse because of the absence of a timely objection.

-CM

No Expert: 3rd Circuit Finds No Error In Refusing To Appoint Expert Under Rule 706

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As the recent opinion of the Third Circuit in Born v. Monmouth County Correctional Inst., 2012 WL 130697 (3rd Cir. 2012), males clear, courts are under no affirmative obligation to appoint experts under Rule 706(a). But as the opinion also makes clear, some courts have done some interesting things with the Rule.

In Born,  Karen Born brought a section 1983 lawsuit alleging that Sergeant William Cornine and Corrections Officer Robert Pisano violated her rights under the Eighth Amendment to the United States Constitution. Specifically,

Born allege[d] that in March 2007, when she was a prisoner in the Monmouth County Correctional Institution (MCCI), Officer Pisano stomped on her back and that Sergeant Cornine observed this but did not intervene. She filed her complaint, pro se, on August 9, 2007, requesting $200,000 in relief that she termed "restitution."...On November 8, 2007, a pretrial order was entered in the case by Magistrate Judge Tonianne Bongiovanni, directing Born to name any expert witness she intended to call at trial by April 24, 2008.

On January 8, 2009, the parties appeared before Judge Bongiovanni for a pretrial conference and filed their joint pretrial memorandum, which did not identify any expert witnesses. It appears from the record that Born requested that an expert be appointed for her to establish that she suffers from post-traumatic stress disorder (PTSD), but that Judge Bongiovanni denied this request.

After the jury found for the defendants, Born appealed, claiming, inter alia, that the judge erred by refusing to appoint an expert pursuant to Federal Rule of Evidence 706(a). The Third Circuit disagreed, finding that the exercise of authority under Rule 706(a) is "in the discretion of district court judges, and we see no basis for saying that there was an abuse of discretion in not ordering the defendants here to pay for Born to hire an expert witness."

Before reaching this conclusion, however, the Third Circuit pointed out

that some courts have held that Rule 706 can be used to appoint an expert for an indigent civil litigant and apportion the costs of such expert to the other side. See Ledford v. Sullivan, 105 F.3d 354, 360 (7th Cir.1997); Steele v. Shah, 87 F.3d 1266, 1271 (11th Cir.1996); McKinney v. Anderson, 924 F.2d 1500, 1511 (9th Cir.1991), vacated and remanded on other grounds sub nom. Helling v. McKinney, 502 U.S. 903 (1991); Webster v. Sowders, 846 F.2d 1032, 1038–39 (6th Cir.1988); U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1058 (8th Cir.1984). We, however, have never so held. Cf. Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987) (finding no statutory authority for courts to pay expert witness fees of indigent civil litigants; not mentioning Fed.R.Evid. 706).

-CM

Copping A Plea: 11th Circuit Addresses Admissibility Of Plea Discussions At Sentencing

Federal Rule of Evidence 410(4) provides that

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

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

It is well established that the rules of evidence generally do not apply at the sentencing stage of trial. But does this hold true with regard to Rule 410(4)? Let's take a look at the recent opinion of the Eleventh Circuit in United States v. Davis, 2012 WL 118444 (11th Cir. 2012).

In Davis, Karriece Quontrel Davis appealed from a district court's denial of his postjudgment Motion to Enforce Specific Performance of the Plea Agreement. That plea agreement was in connection with charges against him for possession of counterfeit currency with intent to defraud, and Davis claimed, inter alia, that the government breached the plea agreement by using protected statements he uttered during his debriefing sessions at sentencing.

In addressing Davis' argument, the Eleventh Circuit noted that 

Federal Rule of Evidence 410 states that any statement made during the course of guilty plea proceedings or plea discussions with the prosecution that do not result in an ultimate plea are inadmissible against the defendant in criminal proceedings. In addition, the Sentencing Guidelines provide that when the Government agrees that self-incriminating information provided pursuant to the cooperation agreement will not be used against the defendant, such information "shall not be used in determining the applicable guideline range, except to the extent provided in the agreement."

In the end, though, the problem for Davis was that

the Government agreed not to use the statements Davis made pursuant to the agreement only if Davis satisfied the terms and conditions of the agreement. Davis did not comply with the terms because he did not fully cooperate with the Government; therefore, the Government did not violate the plea agreement.

-CM

Hearsay For Dummies: "The Good Wife" Episode "Bitcoin For Dummies" Badly Botches Hearsay Issue

I like "The Good Wife." I've written about it on this blog several times (see here, here, and here). I think that the show generally gets the law right more than most other legal shows. That certainly wasn't the case, though, with the show's most recent episode, "Bitcoin for Dummies," which contained the most egregious (non)application of the rule against hearsay that I've ever seen in a legal movie or TV show.

As the title suggests, the episode dealt with Bitcoin, described on its site as

an experimental new digital currency that enables instant payments to anyone, anywhere in the world. Bitcoin uses peer-to-peer technology to operate with no central authority: managing transactions and issuing money are carried out collectively by the network. Bitcoin is also the name of the open source software which enables the use of this currency.

In the episode, as in real life, the creator of Bitcoin -- Mr. Bitcoin -- is unknown, which creates a problem for returning guest star Bob Balaban and the Treasury Department, which wants to prosecute the creator for making an alternate currency. Jason Biggs (the guy who #@$!%# the pie), guest stars as an attorney who ostensibly represents the creator (and won't reveal his identity due to attorney-client confidentiality) and whom the Treasury Department charges in connection with Bitcoin either because it believes that he really created it or to smoke out the actual creator.

Lockhart/Garden's theory is the latter, and its investigator, Kalinda, gets a couple of Treasury Department flunkies to call their boss to the hotel of a cryptography convention to uncover the alleged actual creator. Kalinda then surreptitiously records Balaban's character, Gordon Higgs, as he says that he's looking for the real creator of Bitcoin, with the implication being that the Treasury Department doesn't really think that Biggs' character created it. This then leads to the following exchange the next day in court (at 39:48 of the episode):

Alicia Florrick: And he stated that he was looking for the real inventor of Bitcoin?

Gordon Higgs: Objection, your honor!

Judge Sobel: No, Mr. Higgs. You may answer.

Kalinda: Mr. Higgs stated that he believed I was on the right track to finding Mr. Bitcoin.

Alicia Florrick: And what was that right trrack?

Kalinda: Bao Shuwei, and econophysicist from Nankai University.

Gordon Higgs: Objection, this is all hearsay, your honor.

Kalinda: No, no, uh, I recorded it..by accident, I just got a new phone, and I didn't know how to turn it off.

Really? Federal Rule of Evidence 801(a)-(c) sets forth three definitions:

(a) Statement. “Statement” means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

(b) Declarant. “Declarant” means the person who made the statement.

(c) Hearsay. “Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

Under these definitions, Higgs' statement was clearly hearsay, and it is irrelevant that Kalinda recorded it. Indeed, Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for "recorded recollections" such as audio recordings, making clear that such recordings are indeed hearsay. Higgs' statement would not qualify under this exception for a variety of reasons, but it could have qualified for admission under Federal Rule of Evidence 803(5), which provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

In other words, the statement could have been admissible to prove Higgs' (and the Treasury Department's) belief that Biggs' character was innocent but not to prove that he was in fact innocent. And this is because Higgs' recorded statement was clearly hearsay, despite what the show led viewers to believe.

-CM

Living Social: Supreme Court Of Alaska Finds Medical Hearsay Exception Applies To Statements To Social Worker

Like its federal counterpart, Alaska Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

But does Rule 803(4) apply to statements made to a clinical social worker? According to the recent opinion of the Supreme Court of Alaska in Martha S. v. State, 2012 WL 104471 (Alaska 2012), the answer is "yes."

In Martha S., Martha and William S., the parents of six children, appealed a superior court order adjudicating their two youngest children as children in need of aid and placing the children in the custody of the Office of Children's Services. At trial, clinical social worker Cynthia Bridgman testified about numerous statements made by Allie, the daughter of Martha and William,

during her therapy sessions that related to alleged sexual experiences or exposure to sexual material. In recounting these statements, Bridgman clarified that her role was to provide treatment for Allie and that she was not conducting forensic interviews. The superior court concluded that the statements were admissible because they were made for the purposes of medical diagnosis or treatment under Evidence Rule 803(4). The superior court further explained that "[t]he circumstances and details are necessary to the treatment[,] including the identity of the perpetrator and the circumstances of the sexual contact and the nature of the sexual contact. [Allie] understands the purpose of therapy and g[ave] the statements understanding...th[at] context."

Specifically, Allie told Bridgman that she was sexually assaulted by her brothers. 

In appealing the superior court order, Martha and William claimed, inter alia, that Allie's statements didn't qualify for admission under Alaska Rule of Evidence 803(4). The Supreme Court of Alaska disagreed, concluding that

The commentary to the rule provides that the statements need not be made to a physician, and many other courts have applied this rule to mental health workers under rules similar to Evidence Rule 803(4).[FN17] As the Alabama court of appeals has explained, this hearsay exception applies where "the purpose of the child's counseling sessions...[is] for treatment" rather than "designed primarily for an evaluation of the child for a custody recommendation."

[FN17]....Federal courts have also allowed statements to mental health workers to be admitted under Federal Rule of Evidence 803(4), which is identical to Alaska's rule. 

Moreover, the court found no problem with the content of Allie's statements, noting that "The court of appeals has recognized that a child's statements identifying an assailant in the case of potential sex abuse can be made for the purposes of treatment...."

-CM

In The Public Eye: Puerto Rico Court Finds Pilot's Statements Should Be Excluded From Public Report

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

The theory behind this public records exception to the rule against hearsay is "the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record." What this makes clear is that the public records exception only covers statements made by public officials in public records, not statements made to public officials by non-public officials that are recorded in public records, as is made clear by the recent opinion of the United States District Court for the District of Puerto Rico in Echevarria v. Caribbean Aviation Maintenance Corp., 2012 WL 89839 (D.Puerto Rico 2012).

In Echevarria, the plaintiffs filed an

action against Robinson Helicopter Co...., Caribbean Aviation Maintenance, Corp. and Chartis Insurance Company—Puerto Rico...for the events that led to the death of Diego Vidal Gonzalez....On November 12, 2008 a helicopter piloted by Jose A. Montano...and carrying Vidal Gonzalez suffered severe damage while attempting to land at the Fernando Luis Ribas Dominicci Airport. Vidal Gonzalez was rushed to the Rio Piedras Medical Center where he was treated for injuries. Vidal Gonzalez lapsed into a coma and died 59 days later. Through the various consolidated actions Vidal Gonzalez's widow and three children..., his son..., his father and sisters...brought suit against Defendants for damages, claiming it was the negligence of Defendants that led to the death of Vidal Gonzalez.

The National Transportation Safety Board conducted an investigation of the accident and prepared a report. Included in the report were statements made by the helicopter pilot to the NTSB investigator. Before trial, the defendants filed a motion in limine, seeking to preclude parts of the NTB report, including the parts that contained statements made by the helicopter pilot. The United States District Court for the District of Puerto Rico granted this portion of the motion in limine, finding that

“The Advisory Committee's Notes make clear that Federal Rule of Evidence 803(8) exempts from the hearsay rule only reports by officials; and of course the pilots and other witnesses are not officials for this purpose. Moreover, the memoranda submitted to the government by its investigators often contained statements from witnesses which would make such memoranda encompass double hearsay."...Reports that contain multiple statements of hearsay or double hearsay, even if written by an official, can be excluded based on the hearsay rule or through the trial court's discretion rooted in Rule 403.

-CM