EvidenceProf Blog

Burying The Lead?: Judge Posner Delivers An Amusing Opinion Regarding Leading Questions

A leading question is a question phrased in such a way as to hint at the answer the witness should give. Jas Brar, Note, "Friend or Foe? Responsible Third Parties and Leading Questions," 60 Baylor L.Rev. 261, 264–67 (2008). The question is calculated to "lead" the witness to the answer desired by the lawyer. There is no blanket prohibition of such questions. They are permissible when used against adverse witnesses, usually in cross-examination, or when used with friendly witnesses to move direct examination along rather than to elicit testimony damaging to the opposing party that the witness might not have given in response to a neutral question. Fed.R.Evid. 611(c). United States v. Cephus, 2012 WL 2609316 (7th Cir. 2012). 

If you want a colorful case to explain the nitty gritty of leading questions in detail, you need look no further than Judge Posner's opinion for the Seventh Circuit in Cephus.

In Cephus, several defendants, including Justin Cephus

were tried together for conspiring to entice underage girls, often runaways, to engage in prostitution, to transport them (along with adult women who also worked for the ring) in interstate commerce to engage in prostitution, to use force and fraud to coerce adult women to engage in prostitution, and to commit related offenses. 

After they were convicted, the defendants appealed, with one of the grounds for appeal being that they were unfairly prejudiced by the government's frequently posing leading questions to its witnesses. In addressing this issue, the Seventh Circuit first noted that, in some cases, the district judge

was too hard on the prosecution. He should not, for example, have sustained the objection by Cephus's lawyer to the following question asked one of the prostitutes by the prosecutor: “Did he [Cephus] ever tell you what P–I–M–P stood for?” That was not a leading question. “Did Cephus ever tell you that P–I–M–P stands for ‘power in manipulating pussy’?” would have been a leading question, but it was not asked. Eventually, after a protracted sidebar, the judge relented and allowed the prosecutor to ask the question in a different form, eliciting at last the answer that Cephus had told the witness that “PiMP” was indeed an acronym for “power in manipulating pussy.” Similarly the prosecutor was not leading when he asked a witness: “Did you ever have a phone conversation when someone else was listening in?” The question did not signal the answer the lawyer expected or hoped for, in contrast to asking: “Didn't you ever have a phone conversation when someone else was listening in? Think carefully before answering.” Or: “Isn't it true that you sometimes have phone conversations when someone else is listening in?”

In other cases, however, the Seventh Circuit found that the prosecution did ask leading questions but did not find that these questions were enough to award a new trial. According to the court,

An objectionably leading question asked a friendly witness was the prosecutor's asking one of the girls whether one of her first two “calls” took place in Illinois—a question designed to establish that she had been transported across state lines to engage in prostitution, because she was living in Justin Cephus's home in Indiana. She responded that both calls were in Indiana (thus indicating that she hadn't been “led” by the question) but that later she had calls in Illinois as well. The question was improper, but innocuous because it failed to lead her and because there is no dispute that she had calls in both states.

To one of the witnesses the prosecutor said: “You mentioned that he [Cephus] had a cord. Was he whipping her with the cord?” She answered “yes.” Since whipping a person is unusual, the question would be unlikely to be asked unless an affirmative answer was expected. The question may also have been loaded (a loaded question is a question that contains an assertion, the classic example being “When did you stop beating your grandmother?”), as it might have been understood to mean: “Was he whipping her with a cord or something else?” Instead of mentioning whipping the prosecutor should just have asked her what she had seen Cephus doing with the cord.

The prosecutor asked other inappropriate leading questions, and sustaining objections to questions is probably not a very effective way of pulling their sting, because jurors can guess the answer that the interrogating lawyer expects to a leading question—that's the nature of such a question. But the leading questions in this case could not have affected the verdict of a reasonable jury, given the overwhelming evidence of the defendants' guilt.

-CM

Nonconfrontational?: 11th Circuit Implies That Former Testimony Under Rule 804(b)(1) Can Violate Confrontation Clause

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay  for

Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

A prerequisite for such former testimony being admitted is that the declarant be "unavailable" for trial under Federal Rule of Evidence 804(a).

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.

Based upon my readings of Rule 804(b)(1) and Crawford, I don't see how the admission of former testimony under Rule 804(b)(1) could ever violate the Confrontation Clause. But the recent opinion of the Eleventh Circuit in United States v. Santos, 2012 WL 2913504 (11th Cir. 2012), seems to imply that it could.

In Santos, Armando Julio Santos Vasquez was convicted of conspiracy to commit health care fraud, health care fraud, and making false statements related to health care matters. At trial,

The government sought to prove that Santos, a registered nurse, while working for a Miami-based home health care agency was part of a conspiracy to fraudulently bill Medicare for medical services that were never provided. Specifically, the government contended that Santos prepared nursing progress notes which stated that he had visited and injected homebound patients, Klebe De La Cruz and Caridad Pizzorno, with insulin twice a day, seven days a week when in fact he did not. The government presented testimonial and documentary evidence to establish that neither De La Cruz nor Pizzorno was diabetic and both women testified that they did not receive any insulin injections as reported. De La Cruz also testified that she received $500 a month in cash in exchange for signing the Medicare forms. Santos testified on his own behalf that he injected the patients with insulin as indicated on the progress notes. Medicare paid the home health care agency $20,430 for De La Cruz and $54,010 for Pizzorno for the home health care services attested to by Santos.

On the eve of

Santos's trial, the government moved to introduce the video deposition testimony of Pizzorno, in lieu of her in-person testimony, and that had been taken pre-trial pursuant to Fed.R.Crim.P. 15. Pizzorno who was elderly, had been suffering from a terminal and incurable form of liver cancer, and was unable to travel from Ohio for the trial.

The district court denied Santos' motion to exclude the video deposition, and this ruling formed the basis for Santos' appeal. In addressing that appeal, the Eleventh Circuit first found no hearsay problem with the deposition, concluding that it satisfied the former testimony exception contained in Rule 804(b)(1). But the court then bypassed Santos' Confrontation Clause argument, determining that

We...need not decide whether the admission of the video deposition testimony violated Santos's Confrontation Clause rights because we conclude that such error, assuming it occurred, was harmless.

My first question is why the court even bothered to engage in a hearsay analysis if it was simply going to bypass the Confrontation Clause issue and find harmless error. My second question is how there could have been any Confrontatin Clause uncertainty after the Eleventh Circuit found that Rule 804(b)(1) was satisified. To reach the conclusion, the court found that Pizzorno was unavailable and that Santos had an opportunity and similar motive to develop Pizzorno's testimony during the deposition. Wasn't that clearly enough to satisfy the Confrontation Clause?

-CM

About Schmidt: Court Of Appeals Of Texas Notes That Rule 607 Killed The Common Law Voucher Rule

Like its federal counterpart, Texas Rule of Evidence 607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

And what this means is that the Texas Rule, like the federal Rule, abandons the old "voucher rule," under which a party vouched for the credibility of the witnesses it called and could not impeach their testimony. This point is made clear by the recent opinion of the Court of Appeals of Texas, Amarillo, in Schmidt v. State, 2012 WL 2888213 (Tex.App.-Amarillo 2012), which also shows why the voucher rule was abandoned.

In Schmidt, David Andrew Schmidt, was convicted of the offense of theft of property of the value of $1,500 or more but less than $20,000. The propety in the question consisted several laptop computers that were stolen from the offices of the Texas Department of Transportation in Amarilo, Texas.

The charges against Schmidt arose in large part due to two interviews. First, after a laptop was dicovered in Schmidt's car, Schmidt was interviewed by a police officer and told him

that his mother had purchased the laptop for him and that he had possession of the laptop for over a year. Some of this interview was captured on a DVD recording, State's exhibit 25 (S–25), that was played for the jury. The DVD stopped before the entire interview was recorded. The statement to [the officer] that [Schmidt]'s mother had purchased the laptop for him was not on the DVD, rather this information was presented to the jury as part of [the officer's] testimony.

Later, after Schmidt was arrested, he was interrogated by a sergeant

During the recorded interview, [Schmidt] first asserted that he purchased the laptop several months ago from a friend, whose name he could not give. Moments later, appellant told [the sergeant] that he and his mom bought the laptop together. Within a few seconds, [Schmidt] told [the sergeant] that his mother bought the laptop for him. This DVD, State's exhibit 26 (S–26), was also played for the jury.

The prosecution then called several witnesses to impeach Schmidt's statements pursuant to Texas Rule of Evidence 806.

After he was convicted, Schmidt appealed, claiming, inter alia, that "the State somehow vouched for [his credibility] by putting the statements...contained in S–25 and S–26 before the jury." The Court of Appeals disagreed, concluding that "the State of Texas abandoned the 'voucher' rule regarding impeachment of witnesses with the adoption of Rule 607 of the Texas Rules of Evidence."

-CM

Subpoena Blues: 8th Circuit Finds That Defendant Can't Interrogate Rule 413 Witnesses Dismissed From Subpoena

Federal Rule of Evidence 413(a) provides that

In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

So, let's ay that an FBI agent meets with two women, both of whom claim that they were sexually assaulted by the defendant. As a result of those meetings, the defendant is charged with aggravated sexual abuse of a minor against one of the women, with the other woman being subpoenaed to testify against the defendant pursuant to Rule 413(a). If the second woman recants at least part of her account the evening before trial, should the defendant be allowed to call the second woman and interrogate her at trial? According to the recent opinion of the Eighth Circuit in United States v. Frederick, 2012 WL 2579686 (8th Cir. 2012), the answer is "no."

In Frederick, the facts were as stated above, with the government informing the court that it would not be calling the second woman as a witness. In response, defense counsel objected and argued that the second woman should not be released from the government subpoena. The district court, however, overruled the objection.

After the defendant was convicted, he appealed, claiming, inter alia, that he should have been allowed to question the second woman to determine whether her allegations were in any way tainted by the FBI Agent who received statements from both women. Specifically, he cited to He points to United States v. Stewart, 445 F.2d 897 (8th Cir.1971), in which the Eighth Circuit remanded a case for further disposition when a government informant recanted his corroborative testimony after trial and there was a suggestion of perjury.

The Eighth Circuit found, however, that

the present case is inapposite to Stewart because [the second woman] was never called to testify at trial and so there is no suggestion of perjury. Accordingly, [the defendant] has failed to show that the district court erred in releasing [the second woman] from the government subpoena.

-CM

My New Article: Justice of the Peace?: Why Federal Rule of Evidence 404(a)(2)(C) Should be Repealed

Yesterday, I posted my new article, Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed, on SSRN. Here is the abstract:

In two 2012 opinions, Commonwealth v. Bedford and State v. Williams, courts rejected appeals by convicted homicide defendants sentenced to life imprisonment. Each defendant claimed that his victim was the first aggressor, prompting the prosecution to present character evidence concerning the victim’s character for peacefulness even though neither defendant claimed that his victim was generally a violent person. The prosecution in both cases presented this character evidence under a state counterpart to Federal Rule of Evidence 404(a)(2)(C), a frequently applied exception to the general rule that propensity character evidence is inadmissible.  

Rule 404(a)(2)(C) and its state counterparts are thus the one exception to the general “Pandora’s box” theory which deems propensity character evidence inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character and/or evidence of the victim’s bad character. The Rule is also the rare exception to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Worst of all, this anomalous Rule treats criminal defendants worse than civil defendants in the very type of case in which the accused has the most at stake and faces the largest deployment of investigatory and prosecutorial resources. Accordingly, this article argues for the repeal of Federal Rule of Evidence 404(a)(2)(C) and state counterparts.  

And thoughts or comments on it would be appreciated and can be sent to: Mille933@law.sc.edu.

I also posted my recent essay, No Expertise Required: How D.C. Has Erred in Expanding its Expert Testimony Requirement, which appeared in the Rutgers Law Record, on SSRN. Here is the abstract:

In addressing an appeal by Allen Iverson from a negligent supervision verdict against him, the United States Court of Appeals for the District of Columbia noted that the former NBA star’s “argument stem[med] from a peculiar aspect of common law negligence in the District of Columbia.” That peculiar aspect is D.C.’s expert testimony requirement, which requires expert testimony to establish the pertinent standard of care unless the subject in question is within the realm of common knowledge and everyday experience of the jurors. Such a requirement is not anomalous in the professional malpractice context, and the Iverson court claimed that D.C.’s requirement was in fact born out of such cases.  

According to the court, though, the D.C. Court of Appeals has deviated from the norm by “[r]ecently…requir[ing] expert testimony in a wider variety of cases,…even those that might initially seem to fall within jurors’ common knowledge.” Such cases include disputes regarding the application of hair relaxer, the placement of monkey bars eight feet above hard packed mud, and the failure to remove a dead, prominently leaning tree. In each case, the result is the same: The D.C. Court of Appeals finds that the plaintiff cannot recover without expert testimony concerning the pertinent standard of care. This essay argues that D.C. has improperly expanded its expert testimony requirement and should circumscribe it to malpractice cases and trials involving truly technical matters.

-CM

What's In Your Wallet?: Court Of Appeals Of Iowa Finds Notes In Wallet Not Extraneous Prejudicial Information

A defendant is charged with homicide by vehicle, eluding, and operating a motor vehicle without the owner's consent. At trial, the prosecution offers into evidence "a black wallet with miscellaneous papers in it." It turns out that, unbeknownst to anyone, those papers are damaging to the defendant's case. Indeed, jurors come forward after trial and claim that they used the papers during deliberations. Do those papers constitute "extraneous prejudicial information" and thus a proper predicate for jury impeachment? According to the recent opinion of the Court of Appeals of Iowa in Pinegar v. State, 2012 WL 3026393 (Iowa App. 2012), the answer is "no."

In Pinegar, 

On January 19, 2004, Polk County Deputy Sheriff Cass Bollman attempted to stop a vehicle driven by [William] Pinegar for speeding. According to Bollman's version, he initially activated his lights and later his siren in an effort to stop Pinegar's vehicle. Bollman testified he pursued Pinegar after Pinegar failed to stop and in the course of the pursuit Pinegar ran stop signs, red lights, and drove at speeds in excess of the posted speed limits. Pinegar's vehicle eventually collided with another vehicle, drove through a fence, struck a tree, and came to rest on its passenger side. Melissa Sayles, a passenger in Pinegar's vehicle, was ejected from the vehicle and died of resulting head injuries. Police officers found a semi-automatic pistol near her body. Troy McDaniels, another passenger in Pinegar's vehicle, was also injured.

Pinegar told investigators he used methamphetamine and marijuana earlier that day....Pinegar and McDaniels told investigators that Sayles had also used methamphetamine that day. They also told investigators that Sayles told Pinegar not to stop because the vehicle was stolen and threatened Pinegar with a pistol if he refused to comply. Although McDaniels initially told investigators he did not see the pistol or hear any shots fired, he testified Sayles fired the pistol out of the window in the course of the pursuit. Bollman testified he did not see or hear any gunshots from Pinegar's vehicle during the pursuit.

At trial, the prosecution introduced Sayles' wallet as Exhibit 37, which its witness described as "a black wallet with miscellaneous papers in it. I believe a woman's style wallet." Unbeknownst to either side, the wallet in fact

contained two notes apparently written by Sayles to "Billy." Testimony at trial revealed Pinegar and Sayles had an on-again-off-again romantic relationship. Pinegar's trial counsel obtained affidavits from two jurors indicating the jurors had discovered the notes, discussed them during deliberations, and at least one juror commented that Sayles would not have held a gun to the head of someone she loved.

After he was convicted, Pinegar filed an application for postconviction relief and sought to introduce the affidavits under Iowa Rule of Evidence 5.606(b), which provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

The Court of Appeals of Iowa found, however, that the notes were not "extraneous prejudicial information," concluding that

Although the "miscellaneous papers" were not specifically identified, they were part of State's Exhibit 37. The term "extraneous" in rule 5.606(b) refers to information not in the record and not presented as evidence in court....Examples might be a newspaper a juror brought into the jury room, exhibits not admitted at trial, or a juror's personal familiarity with a location. 

I'm not sure that I can agree with the court. Sure, the prosecution mentioned that the wallet had some miscellaneous papers. But the notes were never authenticated. They were never shown to satisfy the rule against hearsay. They were never shown to be relevant. Apparently, nobody knew what they said. Given this, I think that the notes clearly constituted "extraneous prejudicial information."

-CM

The Areas Of My Expertise: Supreme Court Of Vermont Finds Police Officer & Counselor Qualified To Testify About Rape Trauma Syndrome

Although there is not a set definition of [Rape Trauma Syndrome], it generally holds that victims often are confused and disoriented in the immediate wake of a rape or sexual assault, resulting in delayed reporting when the victim finally reconstructs the nature of the event. Colin Miller, A Shock to the System, 12 Wm. & Mary J. Women & L. 49, 71 (2005)

Courts generally agree that testimony concerning Rape Trauma Syndrome ("RTS") by a qualified expert is admissible under Federal Rule of Evidence 702, which provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:  

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;  

(b) the testimony is based on sufficient facts or data;  

(c) the testimony is the product of reliable principles and methods; and  

(d) the expert has reliably applied the principles and methods to the facts of the case.

The question addressed by the Supreme Court of Vermont in its recent opinion in State v. Hammond, 2012 WL 2620529 (Vt. 2012), is who qualifies as an RTS expert under Vermont's counterpart to Federal Rule of Evidence 702.

In Hammond, Jeffory was convicted of sexual assault and lewd and lascivious conduct. At trial, the

Complainant's guidance counselor testified that "it's typical of abuse victims that they—you know, they're ashamed and they're embarrassed, and they don't want to—they don't want to tell the whole story the first time, or even the second time. Sometimes they wait twenty years." The counselor's work experience included five years at a group home for abused or neglected children, time as a youth advocate in the detective division of a police department, and nearly fifteen years of school counseling at the high school level. Next, an officer testified that it was no surprise that complainant failed to give a full and true account of the massage during her first interview considering that she spoke with a male police officer and the nature of the conversation. According to the officer, his background included training in the dynamics of victims of sex crimes during his time with CUSI and conducting several interviews with complaining witnesses in sexual assault or abuse cases. Finally, the detective testified that, based on her experience conducting interviews with complainants in thirty to fifty sexual offense cases, victims "sometimes...report[ed] it right away and sometimes it was several years before it would be reported." There was no objection to the witnesses' qualifications or to their testimony.

After he was convicted, Hammond appealed, claiming, inter alia, that these witnesses were not qualified to render expert testimony concerning RTS. The Supreme Court of Vermont disagreed, concluding that

Given [Rule 702]'s qualifications for an "expert," it is not plain that the counselor and police witnesses were non-experts or otherwise unqualified to testify as they did. No objection was interposed below. The trial court was not required to interrupt direct examination, on its own, to conduct voir dire on the credentials of the...witnesses. The primary "responsibility to exclude objectionable testimony" lay with defendant.... Given that the counselor [and] officer...were experienced, although in varying degrees, in the area of sex crimes, victim response, and reporting behaviors, it is not clear that they were not competent to testify about the same, or that the subject of their testimony was beyond their expertise. The witnesses were asked only about their respective experience...with delayed or incomplete disclosure by victims of sexual assault—with the officer also offering his reaction to this particular case based on his experience. It is nowhere evident from the record that these witnesses were asked for unfounded scientific opinions, as opposed to relevant comparative "specialized," if not "technical," knowledge acquired from their professional "knowledge, skill, experience, training, or education" admissible under Rule 702.

-CM