EvidenceProf Blog

Walking Contradiction: 2nd Circuit Finds Rule 608(b) Doesn't Apply To Contradiction By Other Evidence

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

As the recent opinion of the Second Circuit in United States v. Ingram, 2012 WL 3055791 (2nd Cir. 2012), makes clear, however, Rule 608(b)'s limitation on the admissibility of extrinsic evidence doesn't apply when a party is contradicting a statement made by a witness at trial.

In Ingram, Noemi Dodakian, a/k/a Emi Dodakian and others were convicted of two counts of conspiracy to commit wire fraud. After she was convicted, Dodakian appealed, claiming, inter alia, that the district court erred by allowing the prosecution to introduce extrinsic evidence of her application for National Association of Securities Dealers registration. Specifically, Dodakian claimed at trial that she was not a "financial person." Thereafter,

On cross-examination, the Government challenged Dodakian's assertion that she was not a "financial person" by eliciting testimony that she had previously sold financial products, had passed an examination offered by the National Association of Securities Dealers ("NASD") and was registered with the NASD, and had taken examinations regarding mutual funds and state securities regulations....Over Dodakian's objection, the District Court admitted her application for NASD registration....Dodakian acknowledged that she had previously described herself on an employment application as having three years of experience with a financial services company, and as having worked for eleven years as a self-employed entrepreneur in health and financial services "opportunities."

On appeal, Dodakian claimed that the admission of her application violated Rule 608(b)'s limitation on the admissibility of extrinsic evidence. The Second Circuit disagreed, finding that

This claim has no merit because the license application was admitted to impeach Dodakian by contradiction, whereas Rule 608(b) addresses extrinsic evidence admitted to impeach by demonstrating character for untruthfulness....Admission of the application did not even implicate, let alone violate, Rule 608(b) because the application had no bearing on Dodakian's character for untruthfulness.

-CM

Spike Lee, "Red Hook Summer," "Malcolm X," Batson, Jury Impeachment, & "Do The Right Thing"

Today sees the release of Spike Lee's "Red Hook Summer." Lee has to be up there among all-time greats in the directing game. I've seen every one of his movies, and his run of films from his debut, "She's Gotta Have It," to "Summer of Same," traversing 14 years, is pretty damned impeccable. Since then, his feature length film resume has been pretty spotty. "Bamboozled" was an ambitious miss while "25th Hour" was the definitive post-9/11 movie. "She Hate Me" was a disaster while "Inside Man" was a taut bank robbery genre piece with a sense of humor. But then, "Miracle at St. Anna" was a slog.

"Red Hook Summer" is a return to Lee's roots as it is an independent piece set in his preferred location of Brooklyn (albeit it in Red Hook rather than his usual Fort Greene). Lee's roots, of course, are in independent cinema, and his "Spike Lee's Gotta Have It: Inside Guerrilla Filmmaking" is the most inspiring work I've ever read about the creation of anything. I'm very much looking forward to "Summer" because my wife and I used to walk through Red Hook a good deal when we lived in Boerum Hill (our favorite place in the Hook being the late, great Schnack).

Spike Lee is no stranger to controversy, from his feud with Reggie Miller to his George Zimmerman tweet to his trademark lawsuit against the Spike TV network. This last dispute underscores the fact that Spike Lee and his works have played a large role in American litigation.

In Wooten v. Federal Exp. Corp., 325 Fed.Appx. 297 (5th Cir. 2009), an interracial couple brought a discrimination action against their employer, claiming, inter alia, that their co-worker made reference to them having "'jungle fever,' a phrase made famous by the Spike Lee movie of that name...." In Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000),  the Ninth Circuit rejected the claim that an Islamic scholar who had consulted with Spike Lee during the filming of "Malcolm X," qualified as an author.

And then there are the 3 Spike Lee cases involving interesting evidence/criminal procedure issues:

In United States v. Hinton, 94 F.3d 396 (7th Cir. 1996), the judge asked the prosecutor about his reason for striking a potential juror wearing a "Malcolm X" cap, leading to the following exchange:

THE COURT: Your reason for that is?

PROSECUTOR: He came into court wearing a Malcolm X hat. I believe that indicates a potential for an attitude that is not favorable to the government. I can elaborate if you want me to. I also didn't like what I perceived as body language. The Court may have noticed when the government was asked to stand up and introduce [its] case agent and [its] witnesses, juror number 20 folded his arms across his chest in a way that I interpreted to be a negative body language. Those are the two reasons I would cite to the court.

DEFENSE COUNSEL: Well, I mean the fact that he wore a Malcolm X hat, which as I understand is a movie that was produced by Spike Lee and there are probably millions and millions of these hats all around the United States, and I would like to point out to the court that I own one. But as far as body language, I noted that there were several persons that had their arms crossed the entire length of the voir dire including, I believe juror number 12, which [sic] I struck, sat there with her arms crossed the entire time and there was one sitting behind me who had his arms crossed the entire time. Those are both white jurors. I think that these excuses given by the government are simply pretenses that deny my client and juror number 20, Ronald Porter, his right to sit on a jury free from racial bias.

THE COURT: All right. I think the Government has articulated a nonracial reason for striking juror number 20, so I deny your Batson motion. It is your turn.

The Seventh Circuit later rejected the defendant's Batson challenge, finding that "[t]he prosecutor's focus was on a perceived militant anti-government aspect of Malcolm X, not his race."

In People v. Budzyn, 566 N.W.2d 229 (Mich. 1997), two white police officers were convicted by separate juries of the second-degree murder of a black suspect. It turned out that during a recess near the end of trial, the court provided the juries with several film videos to watch to entertain themselves, including a copy of "Malcolm X," which begins with a video of the Los Angeles police officers beating Rodney King. The Supreme Court of Michigan found that the movie was extraneous prejudicial information which required the reversal of one of the officer's conviction.

Finally, in Hepler v. State, 1999 WL 333421 (Alaska App. 1999), the prosecutor commented during closing argument as follows:

All I wanted was a commitment from you that if I presented the evidence that you had it in you to do the right thing as Spike Lee says. So now it's your job to do the right thing. And if you think about it, everyone else in the community has done their job. The police have done their job, who investigate, and the fire marshal has done his job, the medical examiner has done his job, the court system has provided the facilities and the court who has presided over these proceedings, [defense counsel] has done his job, I have marshalled the evidence for you in a convincing fashion; and the defendant has really had due process. She's had a very fair trial.

On appeal, the Court of Appeals of Alaska rejected the defendant's challenge to this argument, finding that

Viewed in context, the prosecutor's comments explained to the jury the entire process of the investigation and the trial, pointed out that the jury now had to evaluate the evidence, and argued that the evidence presented to them proved Hepler's guilt. Hepler has not convinced us that the argument was plain error.

-CM

Under The Shield: Court Of Appeals Of Texas Finds Rape Shield Rule Doesn't Cover Nonconsensual Acts, Still Rules Against Defendant

I have written before about court opinions concluding that rape shield rules cover only other consensual sexual acts by the alleged victims and not other nonconsensual sexual acts by alleged victims. In those posts, I have disagreed with those conclusions. I acknowledge that part of the rationale for rape shield rules is to prevent jurors from concluding that the alleged victim was promiscuous and that she likely consented to the sexual act at issue. But rape shield rules are also in place to protect the privacy of alleged victims, to protect them from embarrassment, and to encourage them to come forward with allegations of rape and sexual assault. And I think that having rape shield rules cover other nonconsensual sexual acts protects these latter interests.

In its recent opinion in Woodall v. State, 2012 WL 3089386 (Tex.App.-Texarkana), the Court of Appeals of Texas, Texarkana, found that Texas' rape shield rule does not cover other nonconsenual sexual acts, a conclusion with which I disagree. Notwithstanding this conclusion, the court deemed evidence of the alleged victim's other nonconsensual sexual act inadmissible, a conclusion with which I also disagree. Why?

In Woodall, Anthony Woodall was sentenced to ten years' incarceration after his conviction by a jury of indecency with a child (Nicole) by contact. At trial, Nicole's mother testified that since Woodall's acts against her,

Nicole wakes up with nightmares at least three times a week and that she is frightened of men. Her entire demeanor is completely different than it was before this incident. Nicole has changed schools three times since this incident. When Nicole's mother was asked if the nightmares are all attributed to the incident involving Woodall, she responded, "[S]he wasn't having nightmares before any of this happened." Nicole's mother testified that she attributed the nightmares to the incident involving Woodall.

In response, "Woodall sought to introduce evidence of Nicole's kidnapping and subsequent sexual assault to show another potential cause for the nightmares other than the offense for which he stood trial." The trial court deemed this evidence inadmissible, and this decision formed part of the basis for Woodall's appeal.

In addressing this issue, the Court of Appeals first noted that

Rule 412, commonly known as the Texas rape shield law, was designed "to restrict the introduction of evidence regarding the complainant's prior consensual sexual behavior to situations in which the evidence is both relevant to a defendant's defense and not unduly prejudicial or inflammatory."...In that case, the defendant sought to introduce past sexual behavior of third parties to which the complainant could not have consented; Rule 412, therefore, did not apply....Here, Woodall sought to introduce evidence of the subsequent sexual behavior of a third party to which Nicole could not have consented. Accordingly, Rule 412 does not apply.

I disagree with this conclusion, but I do agree that the evidence was potentially admissible. Why? Rape shield rules have exceptions for evidence of other sexual acts offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence. Texas' exception is contained in Texas Rule of Evidence 412(b)(2)(A), which provides an exception to the rape shield rule for other sexual evidence "that is necessary to rebut or explain scientific or medical evidence offered by the State...."

Now, technically, this exception doesn't apply to the evidence in Woodall, but Texas' rape shield rule does also have an exception for evidence of other sexual acts "that is constitutionally required to be admitted...." Under this exception, Woodall's argument is pretty clear: Using evidence of another sexual act to prove the source of the alleged victim's nightmares is very similar to using other sexual act evidence to prove the source of the alleged victim's physical injuries. Indeed as I have noted before, courts in other jurisdictions have accepted this exact argument.

So, back to Woodall. Whether for the reason given by the court or the reason given by me, the subject evidence was potentially admissible. So, why did the court deem it inadmissible? The court found that

Woodall sought to introduce evidence of Nicole's kidnapping and subsequent sexual assault to show another potential cause for the nightmares other than the offense for which he stood trial. The trial court could have reasonably concluded that the inherent probative force of this evidence was considerable, since Woodall was accused of one incident of sexual indecency with Nicole. Moreover, Woodall correctly contends that Nicole's mother's testimony left the jury with the impression that all of Nicole's problems stemmed from the incident involving Woodall. Therefore, this evidence was relevant and probative to Nicole's mother's claim that Woodall was the sole cause of Nicole's trauma.

Conversely, the trial court reasonably concluded that the kidnapping and sexual assault could tend to confuse or distract the jury from the main issues in the case. In addition, it is reasonable to conclude that the December incident could have a tendency to be given undue weight by the jury. After balancing the various Rule 403 factors, the trial court's decision to exclude the December incident was within the "zone of reasonable disagreement." Therefore, we find no error and overrule this appellate point.

Was that good enough? I don't think so. According to the court, the subject evidence had "considerable" probative force and a considerable tendency to confuse, distract, and be overvalued. Texas Rule of Evidence 403 provides that 

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

From the above analysis, it seems to me that probative value equalled the dangers listed in Rule 403 or was perhaps outweighed by them, but not to a substantial degree. And if that was the case, the evidence should not have been excluded.

-CM

Submission Guide For Online Law Review Supplements, Version 6.0, Now Available On SSRN

Back in May 2009, I posted the initial Submission Guide For Online Law Review Supplements at SSRN. At the time, online law review supplements were a relatively new trend and a rarity at top law schools. Those days are over. By my count, there are now 39 online law review supplements, including (according to U.S. News), online law review supplements at:

∙8 of the top 10 schools;

∙16 of the top 20 schools;

∙20 of the top 30 schools;

∙23 of the top 40 schools; and

∙26 of the top 50 schools.

You can download a copy of the Submission Guide For Online Law Review Supplements, Version 6.0 by clicking here. The new additions for Version 6.0 are:

∙Florida Law Review Forum;

∙Res Gestae (Fordham);

∙Ipsa Loquitur (Georgetown);

∙Furthermore (Ohio State); and

∙Stanford Law Review Online

-CM

I'm Not There: 5th Circuit Finds "Unavailable" Means Same Thing Under Confrontation Clause/Rule 804(a)(5)

Federal Rule of Evidence 804(a)(5) provides that a declarant is unavailable for purposes of the rule against hearsay if the declarant

is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2), (3), or (4).

Meanwhile, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.

So, does "unavailable" mean the same thing for Rule 804(a)(5)/hearsay purposes and Confrontation Clause purposes? According to the recent opinion of the Fifth Circuit in United States v. Acosta-Ruiz, 2012 WL 3002533 (5th Cir. 2012), the answer is "yes."

In Acosta-Ruiz, Samuel Arturo Acosta–Ruiz was convicted by a jury of transporting illegal aliens.

Two of the four aliens that Acosta was charged with transporting were removed to Mexico, and two others—Juan Osvaldo Lopez–Garcia...and Jose Gabriel Mendez–Parra...—were detained as material witnesses and deposed pursuant to 18 U.S.C. § 3144. After the Government took Lopez's and Mendez's depositions (with Acosta's counsel present), the Government began expedited removal of Lopez and Mendez. During their depositions, Lopez and Mendez were advised that they might be needed for trial and, if so, that the Government would grant them permission to reenter the United States for this purpose and pay for their travel expenses. They were asked to provide an address and telephone number where they could be reached in Mexico, which they did. Additionally, according to the prosecutor's representations at a later hearing, Lopez and Mendez were given letters in English and Spanish, which included the name and telephone number of a Border Patrol agent who would meet them at Del Rio, Texas port of entry to help them reenter the United States for trial. Lopez and Mendez were returned to Mexico on April 15, 2010.

Thereafter,

Two weeks prior to trial, the Government filed a motion to declare Lopez and Mendez unavailable and to allow for the introduction of their videotaped depositions at trial. The Government argued that despite its best, reasonable efforts, it had been unable to secure the witnesses' presence at trial. Specifically, it noted in its motion that Border Patrol agents had unsuccessfully attempted to contact Lopez and Mendez by telephone on ten occasions between April and November 2010. The Government also stated that it had mailed subpoenas to the addresses provided by Lopez and Mendez advising them that their presence was needed at the trial and that their travel expenses would be paid. At the hearing on the motion, the prosecutor explained that Lopez and Mendez were not served with subpoenas at their depositions because the trial date had not been set and that he had no proof that the letters and subpoenas notifying Lopez and Mendez of the trial date had been received by the witnesses, noting that one of the letters had been returned as undeliverable. After an objection, the Government offered to call Border Patrol Agent Jonathan Anfinsen to testify about his efforts in locating Lopez and Mendez, but the district court stated that it was "factually satisfied" with the Government's efforts and declared Lopez and Mendez unavailable.

After he was convicted, Acosta-Ruiz appealed, claiming, inter alia, that the government failed to sufficiently establish that Lopez and mendez were "unavailable" for Confrontation Clause purposes. In response, the Fifth Circuit preliminarily noted that

The Government "bears the burden of establishing that a witness is unavailable."...The good-faith effort inquiry is "identical to the unavailability inquiry under [Federal] Rule [of Evidence] 804(a)(5)."...The effort required by the Government to procure a witness is, at base, "a question of reasonableness."

Having laid out this standard, the Fifth Circuit then refused to apply it, stating:

Even assuming arguendo that Acosta's contentions amount to error,we conclude, beyond a reasonable doubt, that absent the playing of Lopez's and Mendez's videotaped deposition testimony during trial, the jury would have nonetheless found Acosta guilty.

-CM

Make Me Whole, Take 9: Court Of Appeals Of Minnesota Engages In Worst Rule 609 Analysis Yet

Following up on my eight previous posts (here, here, here, here, here, here, here, and here) on the subject, I regret that I have to report on yet another miscarriage of justice in Minnesota. Yet again, this injustice has occurred because of the nonsensical application of Minnesota Rule of Evidence 609 by the Minnesota courts. So, let's check out State v. Scott, 2012 WL 3085556 (Minn.App. 2012), which constitutes possibly the worst (mis)application of Rule 609 that I have ever seen.

In Scott, Luke Scott was charged with assault in the first degree, assault in the second degree, terroristic threats, and false imprisonment, with only Scott and his victim being present during the "crucial part" of the evening in question. After he was convicted, Scott appealed, claiming, inter alia, that the district court abused its discretion by admitting evidence of his prior assault conviction.

The Court of Appeals of Minnesota noted that the issue was governed by Minnesota Rule of Evidence 609(a)(1), which provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect....

The court then noted that it considers five factors in balancing probative value and prejudicial effect:

(1) [T]he impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue.

Let's start with factors two and three. Under the second factor, Scott was originally sentenced for his prior assault conviction in January 2000 and then resentenced in September 2006. The opinion doesn't tell us what happened in 2006, but it is clear that Scott's prior assault was committed before 2000, making the crime very remote and not very probative of his current honesty as a witness. Indeed, the Court of Appeals of Minnesota acknowledged as much, finding that "because it is an older conviction, the age of the conviction weighs against its admission."

Meanwhile, under the third factor, Scott's prior conviction was for assault, and he was facing two counts of assault at trial. The court could thus easily conclude that "[e]ven though there were other crimes charged in addition to the first- and second-degree assault charges, it appears that the similarity of the prior assault conviction weighs heavily against its admission here."

So, the second and third factors weighed heavily against admission. Now, here is what any logical court would have said with regard to factors one, four, and five. Under factor one, assault is a crime of violence, which tells us a good deal about whether a person is aggressive but almost nothing about whether he is honest, making factor one weigh heavily against admission. 

Under factor four, Scott's testimony was critically important to trial as only he and the victim were present for the alleged crimes. If Scott's prior conviction were deemed admissible in the event he testified, he might very well refuse to testify and deprive the jury of critical information. Thus, factor four weighs heavily against admission. But what this means is that factor five weighs heavily in favor of admission because Scott's credibility was central to the resolution of the case and impeachment evidence would allow jurors to call into question Scott's credibility.

So, a logical court would have concluded that four factors strongly favored exclusion while only one factor favored admission and thus found that Scott's prior assault conviction should have been deemed inadmissible. But the Court of Appeals of Minnesota is not a logical court.

First, here is its analysis of the first factor:

Appellant argues that his prior conviction has nothing to do with his credibility. The Minnesota Supreme Court has held that, even though a prior conviction is unrelated to a defendant's veracity, it can still have impeachment value. Brouillette, 286 N.W.2d at 707. In Brouillette, the defendant argued that his prior conviction for criminal sexual conduct was unrelated to his credibility. Id. The court stated that rule 609 "clearly sanctions the use of felonies which are not directly related to truth or falsity for purposes of impeachment, and thus necessarily recognizes that a prior conviction, though not specifically involving veracity, is nevertheless probative of credibility." Id. at 708.

Similarly here, appellant's prior conviction could give the jury a view of his whole person and help the jury to determine whether his testimony was credible. The impeachment value of the prior conviction, in showing the jury the "whole person" of appellant, appears to weigh in favor of its admission.

Nonsense! The court can't really believe the above gibbersh, can it? And if it did, wouldn't that mean that Minnesota courts should admit character evidence, which would also show the jury the "whole person" of the appellant? The court's "analysis" is both nonsensical and inconsistent with other rules of evidence such as the character evidence rules. Also, even if we buy that the "whole person" theory means that an assault conviction has some bearing on the honesty of a defendant as witness, surely that bearing is pretty low, meaning that the first factor very weakly favors admissions.

Second, here is its analysis of factors four and five:

"If credibility is a central issue in the case, the fourth and fifth Jones factors weigh in favor of admission of the prior convictions." Swanson, 707 N.W.2d at 655. "Appellant's version of the facts may be centrally important to the result reached by the jury. If so, this fact would support exclusion of the impeachment evidence if by admitting it, appellant's account of events would not be heard by the jury." Gassler, 505 N.W.2d at 67. "[I]f the defendant's credibility is the central issue in the case that is, if the issue for the jury narrows to a choice between defendant's credibility and that of one other person then...the need for the evidence is greater."

Again, this is nonsense. In basically any criminal trial, the defendant's credibility is going to be a central issue. Think about it. The defendant in any criminal trial involving acts of violence will either be claiming (1) it wasn't me; (2) it was me, but I have some defense (e.g., I was acting in self-defense); or (3) it was me, but it was not as bad as the prosecution claims. In any of these cases, the defendant's credibility is going to be centrally important. And what that means is that in Minnesota, factors four and five are basically always going to favor admission.

And, of course, under Minnesota law, factor one is always going to favor admission. So, three factors will always favor admission, and a defendant will never be able to have a conviction exclusion...even an extremely old and extremely prejudicial conviction like the one in Scott.

-CM

No Answer: 2nd Circuit Finds An Answer At A Prior Trial Is A Prior Inconsistent Statement If Witness Refuses To Answer

Federal Rule of Evidence 801(d)(1)(A) provides that

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

So, let's say that a witness answers a question during a state court trial and then refuses to answer the same question at a subsequent federal court trial? Does his answer at the state court trial constitute a prior inconsistent statement under Rule 801(d)(1)(A)? According to the recent opinion of the Second Circuit in United States v. Truman, 2012 WL 3023804 (2nd Cir. 2012), the answer is "yes."

In Truman, in November 2005 Jeffrey E. Truman, Sr., along with two partners in JMM Properties, LLC, purchased a vacant commercial building and the property on which it was located on Liberty Street in Oneida, New York for $175,000.

In January 2006 a small fire started accidentally at the Liberty Street property, causing only minor damage. The day after the fire, the real estate broker reminded Truman that the building was insured for several million dollars, and Truman told an employee responsible for cleaning the building, "[I]f it ever caught on fire again, just get out. It is worth more to me down than it is standing." Similarly, when Truman's father-in-law said that leasing the building would be profitable, Truman responded that "it would probably make more money if it burnt."

By the fall of 2006, JMM was financially strapped. Unable to find tenants or buyers for the property, it faced mounting unpaid financial obligations totaling several thousand dollars, including a significant interest payment on one mortgage loan, due November 17, 2006—the same day that the insurance policy was set to expire—and a payment of $14,500 in broker fees associated with a second mortgage that Truman had personally guaranteed. After Truman negotiated three extensions of the deadline for the $14,500 payment, JMM's mortgage broker told Truman the week before the fire that the second loan would be canceled if the payment was not made by November 14. Truman himself experienced significant financial difficulties relating to JMM and unrelated businesses, including a restaurant and a skating rink. He lost $97,000 in other real estate investments in 2005 and in September 2006 was forced to withdraw $135,000 from his retirement savings to pay credit card debts and JMM's bills. By early November 2006, Truman had less than $5,000 in his personal bank accounts. Nevertheless, the premium payments for the insurance policy covering the Liberty Street building remained up to date through November 17, 2006.

The building burned down the evening of November 12, 2006. Investigators soon determined that the fire was the result of arson. The following month, police arrested twenty-year-old Truman, Jr., who confessed that he had burned the building at his father's direction. Apparently unaware of his son's confession, Truman and his business partners filed an insurance claim for the building in February 2007. Truman was arrested by state law enforcement officials in March 2007, and both he and Truman, Jr. were indicted by a grand jury in Madison County, New York. Truman, Jr. pleaded guilty to third-degree arson pursuant to a cooperation agreement with the district attorney of Madison County and served a two-year term of imprisonment.

Thereafter,

Truman was first tried in state court on arson, fraud, and related charges, with Truman, Jr. as the main witness against him. The charges were dismissed, however, when the State prosecutors proved unable to corroborate Truman, Jr.'s testimony, as required under New York law when an accomplice testifies for the prosecution.

Subsequently, the United States began its own investigation, with Truman, Jr. eventually entering into a cooperation agreement with the United States Attorney's Office. Pursuant to that agreement, Truman, Jr. testified before a federal grand jury, and soon thereafter Truman was indicted and charged.

At trial, Truman, Jr. refused to answer several questions posed by the prosecution that he answered at the state court trial, prompting the prosecutor to introduce his prior responses as prior inconsistent statements under Federal Rule of Evidence 801(d)(1)(A).

After he was convicted, Truman moved for a new trial, and the district court granted the motion, finding that Truman, Jr.'s prior answers were inadmissible hearsay. The Second Circuit, however, disagreed, finding that to the extent that its prior opinions

did not specifically address this issue,...we now join all of our sister courts that have addressed the question in holding that where, as here, a witness who testifies under oath and is subject to cross-examination in a prior state court proceeding explicitly refuses to answer the same questions at trial, the refusal to answer is inconsistent with his prior testimony and the prior testimony is admissible under Rule 801(d)(1)(A). 

-CM