August 25, 2012
Character Of The Matter: Court Of Appeals Of Kentucky Finds Generalized Character Evidence Properly Excluded
Kentucky Rule of Evidence 404(a)(1) provides that
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same....
Of course, a key word in Rule 404(a)(1) is the word "pertinent." A defendant's character for peacefulness would be pertinent in a homicide trial but likely not pertinent in a fraud trial. And, at that fraud, trial, the defendant's character for truthfulness would be pertinent while his character for violence would not be. As the recent opinion of the Court of Appeals of Kentucky in Crabtree v. Commonwealth, 2012 WL 3538316 (Ky.App. 2012), makes clear, however, a character witness' generalized claim that the defendant is a good person or has a good reputation in the community is never pertinent character evidence under Rule 404(a)(1).
In Crabtree, Samuel Crabtree was convicted of multiple counts of possession of materials portraying a sexual performance by a minor. After he was convicted, Crabtree appealed, claiming, inter alia, that the trial court erred by precluding his character witness from testifying before the jury at trial. The trial court did allow Crabrtree to make an offer of proof in the form of an avowal by the character witness before the judge, in which he claimed
that he had known Crabtree for Crabtree's entire life and that Crabtree had a good reputation in the community. He agreed that if illegal material had accidentally appeared on Crabtree's computer, it would be wrong for Crabtree to go to jail. But he testified that he was not there and did not know what had happened.
The court's opinion in Crabtree is not a model of clarity, but the gist of it is that the type of generalized testimony proffered by Crabtree is not the type of testimony about a specific character trait that can be admitted under Rule 404(a)(1). Accordingly, the Court of Appeals of Kentucky found that the trial court did not err in excluding it.
August 24, 2012
No One But The Bailiff: Is A Bailiff's Comment That The Defendant Fired The Best Criminal Attorney In Town Prejudicial?
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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
So, let's say that jurors are standing in a courthouse hallway when one juror asks, "Why did [the defendant] hire these dummies [(i.e., defense counsel)]?" And let's say that the bailiff responded, "He had the best criminal attorney in the city and he fired him." Does the bailiff's statement provide the proper predicate for jury impeachment under Rule 606(b)? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Seaton v. State, 2012 WL 322677 (Tex.App.-San Antonio 2012), the answer is "no." I disagree.
In Seaton, the facts were as stated above, with the exchange occurring during deliberations in David Seaton's trial for manslaughter and aggravated assault by a public servant. After Seaton was convicted, he appealed, claiming, inter alia, that the bailiff improperly provided the jury with evidence that was not admitted during trial. The Court of Appeals of Texas, San Antonio, however, found that a juror's testimony on this exchange was inadmissible because "[n]eutral statements from the bailiff not directed to the jury's specific deliberations or verdict do not constitute an outside influence."
I agree with the general point made by the court, but I disagree with the court's application of the point in Seaton. Clearly, the bailiff's statement was not "neutral." Instead, it revealed that Seaton had the best criminal attorney in the city and then fired him for the attorney that the juror held in poor regard. Why? Was Cleary a difficult person? Was the best attorney unwilling to suborn perjury? Was the best attorney not willing to put forth certain arguments that he thought were meritless? If I were the juror hearing the bailiff's statement, any one of these or related thoughts might have entered my head.
Would any of these thoughts have caused me to change my verdict from not guilty to guilty? Probably not, but that's why we have the doctrine of harmless error (which the court found applied in the event that the juror's testimony was admissible). It certainly seems clear to me, however, that the bailiff's comment was not neutral, meaning that the juror's testimony should have been admitted under Rule 606(b).
August 23, 2012
Forfeiture From The Black Whole: 4th Circuit Applies Forfeiture By Wrongdoing Doctrine Via Pinkerton
Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for
A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.
Meanwhile, pursuant to the Supreme Court's opinion in Pinkerton v. United States, 328 U.S. 640 (1946), person is "liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy."
I have seen Rule 804(b)(6) cited in many cases and Pinkerton cited in many cases, but never in the same case...that is, until the recent opinion of the Fourth Circuit in United States v. Dinkins, 2012 WL 3292417 (4th Cir. 2012).In Dinkins, James Dinkins, Melvin Gilbert, and Darron Goods were charged in a twelve-count indictment, with the predominating count of the indictment being the charge of conspiracy to distribute narcotics. After they were convicted, Dinkins and Gilbert appealed, claiming, inter alia, that a declarant's statements incriminating them were improperly admitted under Rule 804(b)(6).
Specifically, Dinkins alleged that
the forfeiture by-wrongdoing exception did not apply to [the declarant]'s statements regarding Dinkins' acts, because Dinkins did not participate in any wrongdoing that caused [the declarant]'s death. Dinkins argues that by the time that [the declarant] was killed in November 2006, Dinkins had been in jail for about a year, and no evidence was presented to show that he participated in the murder.
The government responded that Dinkins was responsible for the declarant's murder pursuant to Pinkerton. The Fourth Circuit agreed, finding that
The language of Rule 804(b)(6) supports the application of Pinkerton principles of conspiratorial liability in the forfeiture-by-wrongdoing context, by requiring that the defendant either have "wrongfully caused— or acquiesced in wrongfully causing—the declarant's unavailability."... The term "acquiesce," within the meaning of Rule 804(b)(6), encompasses wrongdoing that, while not directly caused by a defendant coconspirator, is nevertheless attributable to that defendant because he accepted or tacitly approved the wrongdoing.
Specifically, the court determined that
In the present case, the evidence showed that the murder of [the declarant] in November 2006 was in furtherance, within the scope, and reasonably foreseeable as a natural consequence of an ongoing conspiracy of which Dinkins was a member.
August 22, 2012
Can I Get A Summary?: 6th Circuit Finds That A Properly Admitted Summary Is Not Hearsay
Federal Rule of Evidence 1006 provides that
The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.
The placement of Rule 1006 in Article X of the Federal Rules of Evidence means that the Rule is a way of satisfying the Best Evidence Rule contained in Federal Rule of Evidence 1002, which provides that
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
And what that means is that Rule 1006 does not provide an an exception to the rule against hearsay, which is contained in Article VIII of the Federal Rules of Evidence (see my prior post on the subject). In other words, if a summary, chart, or calculation contains inadmissible hearsay, it is just as inadmissible as a hearsay not contained in a summary, chart, or calculation. So, what are we to make of the recent opinion of the Sixth CIrcuit in Alliant Tax Credit Fund 31-A, Ltd. v. Murphy, 2012 WL 3519463 (6th Cir. 2012).
Murphy involved an appeal of a breach-of-contract suit in which the plaintiffs sought to recover their capital investment from the general contractors, two individual guarantors, and one corporate guarantor, for low-income housing units that were never completed. In moving for summary judgment, the plaintiff, Alliant,
attached an affidavit by Brian Doran, a representative of Alliant, that provided calculations of the Development Deficit and rescission amounts. Doran swore that Alliant had invested $8,598,085 in the six LPs. He broke out the methodology and calculations for the Development Deficits for the five properties, and the rescission methodology and calculations for the sixth, incomplete, property. He reached a total damages amount of $8,194,136.
In appealing the entry of summary judgment against it, the defendants claimed hat this affidavit was improperly admitted.
The district court admitted Doran's calculations, over Murphy's objection of hearsay, as summaries admissible under FED.R.EVID. 1006 ("The proponent may use a summary...to prove the content of voluminous writings...that cannot be conveniently examined in court."). Murphy does not argue that the evidence did not constitute a summary for the purpose of Rule 1006; he merely argues that it is hearsay. A properly admitted summary is not hearsay. Murphy's first argument is meritless.
Either the Sixth Circuit is wrong, or I am not understanding what it is saying. Hearsay is a statement offered to prove the truth of the matter asserted. Therefore, it follows that a summary of hearsay statements sought to be admitted under Rule 1006 would also be hearsay. Again Rule 1006 solves the Best Evidence problem, but it tells us nothing about a hearsay problem. Now, if the court was merely saying that Doran's calculations were not hearsay regardless of Rule 1006, that's fine. But if it was saying that Doran's calculations were not hearsay because of Rule 1006, it was clearly wrong.
August 21, 2012
Confronting The Truth: Appeals Court Of Massachusetts Finds Colloquy Not Required Before Waiving Confrontation Right
A defendant can only plead guilty and waive his right to a jury if there is a colloquy between the judge and the defendant to determine the the waiver is knowing, voluntary, and intelligent. So, should a similar colloquy be required when the defendant waives his right to confrontation? According to the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Myers, 2012 WL 2877376 (Mass.App.Ct. 2012), the answer is "no."
In Myers, Larinso Myers was charged with possession with intent to distribute cocaine and possession with intent to distribute oxycodone. At trial,
the Commonwealth introduced in evidence drug analysis certificates which identified the composition and quantity of the recovered controlled substances. Although the defendant had the right to require the testimony of the analyst who signed the drug analysis certificates, defense counsel, in response to a question from the judge, orally stipulated in the presence of the defendant that he did not object to the admission of the certificates without the analyst's testimony. No colloquy between the judge and the defendant took place.
After he was convicted, Myers appealed, claiming, inter alia, "that the trial judge should have conducted a colloquy with him to ensure his personal waiver of the right to confront the analyst who prepared the drug analysis certificates admitted in evidence."
In response, the Appeals Court of Massachusetts initially noted that the Eighth Circuit was the only federal circuit in the wake of Melendez-Diaz to consider the specific question whether defense counsel may waive a defendant's right to confront the analyst before admission of a drug analysis certificate approved the practice, with that court concluding that "[w]ithout making his objection known, we presume that [the defendant] acquiesced in his counsel's stipulation." The court then found that this conclusion was consistent with all pre-Melendez-Diaz decisions of the Federal Circuit Courts of Appeals, which had held "that defense counsel may waive a defendant's right to confrontation as a matter of legitimate trial strategy so long as the defendant does not object."
The Appeals Court of Massachusetts then joined the chorus, finding that
After careful consideration of these precedents, we conclude that a defendant's waiver of the right to confront the analyst before admission in evidence of a drug analysis certificate does not require a colloquy between judge and defendant to confirm the defendant's personal waiver. So long as defense counsel's waiver occurs in the presence of the defendant, the defendant does not object, and the waiver objectively appears to further legitimate trial strategy, a judge exercising sound discretion need only conduct a colloquy with a defendant in circumstances of detectable disagreement, confusion, or uncertainty on the part of the defendant. An individual trial judge, of course, retains discretion to conduct a colloquy as a matter of personal routine.
As noted above, a defendant's right to confront the analyst in such a case falls within the list of rights related to "strategic or tactical matters, rest[ing] ultimately in counsel, with the degree of required client consultation and participation dependent on the circumstances."...Particularly with regard to the comparative benefit or detriment of the analyst's testimony before introduction in evidence of a drug analysis certificate, a defendant benefits from "the unique training and professional experience which are the province of the attorney."...That training and experience may often serve to protect the defendant from himself.
August 20, 2012
Call The Doctor: Does Rule 803(4) Apply To Statements Made To The Sexual Assault Response Team?
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.
So, what happens when an alleged sexual assault victim makes statements to a person working as part of a quasi-medical, quasi-investigatory body? Are those statements made for purposes of diagnosis or treatment, or are they made for purposes of evidence-collection and prosecution? The answer is probably a bit of both, which is why, as I've noted, such statements have created problems for courts under Rule 803(4). This was certainly the case with the recent opinion of the Supreme Court of Alaska in Davison v. State, 2012 WL 3240111 (Alaska 2012).In Davison,
Dennis Davison was convicted of sexually abusing his fourteen-year-old daughter, R.D. At trial, the doctor who performed a Sexual Assault Response Team (SART) examination of R.D. testified to statements R.D. had made during the examination.
Unfortunately, the opinion in Davison doesn't do a great job of explaining the specifics of SART, so here they are, from the Alaska Department of Public Safety website:
The Sexual Assault Response Team (SART) is a multi-disciplinary team developed to improve serv- ices to victims of sexual assault. The team is comprised of advocates from the local victim service center, law enforcement officers, and specially trained health care professionals. These team members provide a coordinated, efficient, and supportive response to victims. The benefit of the SART is the ability to provide a full range of comprehensive services to victims who have made the decision to report a sexual assault. This occurs by providing immediate crisis intervention, team interviews, forensic examination, and follow-up as needed. This coordinated response leads to a bond between the victim and the advocate, enables law enforcement to receive a foundation of facts regarding the case, and provides for forensic evidence for prosecution of the sexual offender.
SART teams are established to:
A. Meet the immediate needs of the victim with crisis intervention and support services.
B. Provide a joint, effective, sensitive approach to victims of sexual assault.
C. Conduct an investigation of the crime.
D. Document and preserve forensic evidence for prosecuting the perpetrator of the crime.
As you can see from the above, SART serves several masters, some which would allow for the application of Rule 803(4) and some which would not. Moving to the specifics of Davison, here is how the SART examination of R.D. was conducted:
At the hospital, Dr. Deborah Flint–Daniel conducted the SART exam. Three other people were present during the exam: Trooper Abercrombie, a nurse, and an advocate from the Bering Sea Women's Group. Dr. Flint–Daniel explained that Trooper Abercrombie had requested the SART exam: “[T]he exam .... has to be requested by this officer here. You guys have already talked about that and she's asked that we go ahead and do this exam today.” The doctor also read R.D. a consent form explaining that the information gathered from the medical exam would be used for evidentiary purposes:
[H]ere, let me read [this consent form] with you. That you authorize [the hospital] to give information to—in this case it would be Alaska State Troopers.... And the information will be used or disclosed for an investigation and prosecution of any crime that may have been committed....
It says you understand that the health care providers are required to report to law enforcement agencies cases in which medical care is sought when injuries have been inflicted upon any person in violation of state law.... I understand that a separate medical examination for evidence of sexual assault ... can be conducted by a health care provider to discover and preserve evidence of assault. If conducted the report of the examination and any evidence obtained will be released to law enforcement authorities. I understand that the exam may include the collection of reference specimens.... Knowing this, I consent or give permission to a medical examination for evidence of sexual assault.
The form expressly described the examination as a forensic exam: “In order to facilitate services it is understood that the agencies involved in the team will be exchanging information about the forensic examination ... and the interview.”
Dr. Flint–Daniel then proceeded to collect a verbal history from R.D. R.D. had a very difficult time answering questions about the sexual assault and responded with silence to many of the doctor's questions. After several unsuccessful attempts to question R.D. about the assault, Trooper Abercrombie offered to relay what Tracy had told her about the incident. After the trooper told the doctor what Tracy had reported, Dr. Flint–Daniel asked R.D., “[I]s that pretty much on target?” R.D. responded, “Yeah.” Dr. Flint–Daniel then proceeded to ask R.D. a series of more detailed yes or no questions about the incident, to which R.D. responded. Later, over Davison's objection at trial, Dr. Flint–Daniel summarized what R.D. had told her: someone came into her room while she was sleeping, touched her breasts and genitals, licked her genitals, and penetrated her vagina with a finger and penis.
After concluding the verbal history portion of the SART exam, Dr. Flint–Daniel performed a physical exam. The physical exam showed that R.D. had two healing abrasions in her genital region. The doctor also obtained swabs from inside her mouth and genital area to test for various sexually transmitted diseases.
In addressing on appeal the question of whether Dr. Flint-Daniel's testimony about R.D.'s statements was admissible under Rule 803(4), the Supreme Court of Alaska noted that two questions have to be answered in the affirmative for the Rule to apply:
"'[F]irst is the declarant's motive consistent with the purpose of the rule; and second, is it reasonable for the physician to rely on the information in diagnosis and treatment.'"
The Alaska Supremes then found the testimony was improperly admitted because it could not answer the first question in the affirmative. Instead,
the SART exam was conducted by a doctor, in a hospital, and R.D. was 14 years old. Davison concedes that at 14 years old R.D. was “old enough to understand that information she provided could affect the treatment she would receive at a medical exam.” But many other factors cause us to question whether her statements were made for the purpose of medical diagnosis or treatment: (1) R.D. had already received some prior medical treatment at the clinic in Elim; (2) Trooper Abercrombie arranged the interview, met R.D. and her mother at the airport, and drove them to the hospital; (3) the trooper and a women's advocate were present during the exam; (4) the trooper took an active role in questioning R.D. and prompted the responses that R.D. eventually gave; (5) Dr. Flint–Daniel emphasized the forensic purpose of the exam to R.D.; and (6) Dr. Flint–Daniel did not actually view and follow-up on the results of the lab tests she had ordered. These facts all suggest the exam was primarily forensic rather than medical. On balance, we cannot conclude that R.D.'s statements to Dr. Flint–Daniel regarding the assault were made for the purpose of medical diagnosis or treatment. Consequently, they lack the guaranty of trustworthiness underpinning the medical treatment exception and were not admissible under Evidence Rule 804(4).
That said, because R.D. actually took the witness stand and testified regarding the acts that led to Davison's conviction, the Supreme Court of Alaska found that the trial court's error was harmless.
(Hat tip to Kevin Higgins for the link)
August 19, 2012
Jet Ski Or Not Jet Ski, That Is The Question, But Is Wikipedia Equipped To Answer It?
Me (doing my best Joe Pesci): You were serious about that?In Oltmanns,
[Robert] Oltmanns, the insured, and his friend [Brady] Blackner were operating a Honda F–12 AquaTrax personal watercraft on a lake in southern Utah. This kind of personal watercraft is designed for use by a seated driver and up to two additional seated passengers. A lawsuit resulted from injuries sustained in an accident that occurred during this use, and Oltmanns tendered the defense to Fire Insurance Exchange, with whom he was insured under a homeowner's policy.
The policy, however, stated, inter alia, that it did not cover bodily injury that results from the ownership, maintenance, use, loading or unloading of "jet skis and jet sleds...."
Fire Insurance thus moved for summary judgment dismissing the complaint, and the trial court granted the motion, finding that the policy unambiguously excluded coverage for the use of all personal watercrafts. The plaintiffs thereafter appealed, but the Court of Appeals of Utah reversed, finding that
the provision in question is not a model of clarity and at least one additional interpretation is entirely possible. Another common use of the term "jet ski" is in reference to the stand-up variant of personal watercraft, in contradistinction to the sit-down variety, known colloquially—and also imprecisely—as wave runners. The subject is well-illuminated in that great repository of contemporary wisdom, Wikipedia[FN1]:
Jet Ski is the brand name of a personal watercraft manufactured by Kawasaki Heavy Industries. The name is sometimes mistakenly used by those unfamiliar with the personal watercraft industry to refer to any type of personal watercraft; however, the name is a valid trademark registered with the United States Patent and Trademark Office, and in many other countries. The term "Jet Ski" (or JetSki, often shortened to "Ski") is often mis-applied to all personal watercraft with pivoting handlepoles manipulated by a standing rider; these are properly known as Stand-up PWCs. The term is often mistakenly used when referring to WaveRunners, but WaveRunner is actually the name of the Yamaha line of sit-down PWCs, whereas "Jet Ski" refers to the Kawasaki line. Jet Ski, http://en.wikipedia.org/wiki/Jet_ski (last visited August 13, 2012) (footnotes omitted).
FN1. In the past, we might have hesitated to cite Wikipedia in a judicial opinion given its reputation—perhaps not well deserved—for unreliability. See, e.g., Wikipedia Survives Research Test, BBC News (Dec. 15, 2005), http://news.bbc.co.uk/2/hi/technology/4530930.stm (finding rate of error in scientific articles to be about the same as between Wikipedia and Encyclopedia Britannica). But the increasing trend of using Wikipedia in judicial opinions over the last decade seems to demonstrate a growing recognition of its value in some contexts, as noted in one 2010 article that found that by that year Wikipedia had been cited in over four hundred judicial opinions. See Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J. L. & Tech. 1, 1 (2009–2010) (reviewing several instances in which Wikipedia has been cited in judicial opinions and critiquing its usefulness, or lack thereof, in those contexts). Judge Posner argued in 2007 that "Wikipedia is a terrific resource...[p]artly because it [is] so convenient, it often has been updated recently and [it] is very accurate," after citing it in United States v. Radomski, 473 F.3d 728, 731 (7th Cir.2007). See Noam Cohen, Courts Turn to Wikipedia, but Selectively, N.Y. Times, Jan. 29, 2007 at C3. While a prudent person would avoid a surgeon who bases his or her understanding of complicated medical procedures on an online source whose contributors range from expert scholars to internet trolls, where an understanding of the vernacular or colloquial is key to the resolution of a case, Judge Posner is correct that Wikipedia is tough to beat. A fuller explanation of the propriety of citing Wikipedia is set forth in Judge Voros's separate opinion.
So, let's turn to Judge Voros' concurring opinion, in which he notes that "[b]ecause Wikipedia is an open-source project, questions arise as to its reliability" and that Wikipedia itself has the following disclaimer:
IMPORTANT NOTE: Most educators and professionals do not consider it appropriate to use tertiary sources such as encyclopedias as a sole source for any information—citing an encyclopedia as an important reference in footnotes or bibliographies may result in censure or a failing grade. Wikipedia articles should be used for background information, as a reference for correct terminology and search terms, and as a starting point for further research.
Judge Voros then raises what I think is the most important criticism of citing Wikipedia, which is that
A defining feature of Wikipedia is that its entries are in a constant state of change. The impermanent nature of the information on Wikipedia has serious consequences when Wikipedia entries are cited in judicial opinions. Unless they are provided with a date-and time-specific citation, researchers who pull up a Wikipedia entry cited in a judicial opinion will never be absolutely certain they are viewing the entry as it existed when the judge viewed it....This may ultimately lead to uncertainty and instability in the law. Lee F. Peoples, The Citation of Wikipedia in Judicial Opinions, 12 Yale J.L. & Tech. 1, 38–39 (2009–2010).
But the bottom line is that "[c]iting Wikipedia is as controversial as it is common. Some courts approve it, others condemn it." Judge Voros, however, really falls into neither camp. Instead, he ackowledges that citing Wikipedia would be inappropriate in many cases but then cites tha aforemention Peoples article for the proposition that "Wikipedia entries can be useful in some limited situations...for getting a sense of a term's common usage" and the then notes that
getting a sense of the common usage or ordinary and plain meaning of a contract term is precisely the purpose for which the lead opinion here cites Wikipedia. Our reliance on this source is therefore, in my judgment, appropriate.