EvidenceProf Blog

There's No Business Like Court Business: 9th Circuit Refuses To Take Judicial Notice In Marilyn Monroe Case

Federal Rule of Evidence 201(b) provides that

The court may judicially notice a fact that is not subject to reasonable dispute because it:  

(1) is generally known within the trial court’s territorial jurisdiction; or  

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

It is well established under Federal Rule of Evidence 201(b) that a court may take judicial

"notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989); E.I. DuPont de Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir.1986); Coney v. Smith, 738 F.2d 1199, 1200 (11th Cir.1984); Green v. Warden, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir.) (court took judicial notice of proceedings and filings in other courts, including a decision of the California Supreme Court issued while the parties' appeal in the federal case was pending), cert. denied, 404 U.S. 967, 92 S.Ct. 344, 30 L.Ed.2d 287 (1971).

But what if the other proceedings do not have a direct relation to the matters at issue in a case? That was the question addressed by the Ninth Circuit in its recent opinion in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 2012 WL 3743100 (9th Cir. 2012).

The Ninth Circuit described Marilyn Monroe as follows:

An enduring American celebrity, Marilyn Monroe continues to inspire both admiration and litigation a half-century after her death. At issue is whether appellants inherited a right of publicity, which was created and deemed posthumous by the states of California and Indiana decades after her death, through a residual clause in her Last Will and Testament. The will was subject to probate in the state of New York, which does not recognize a posthumous right of publicity. The issue of appellants' rights turns on whether Monroe was domiciled in California or New York at the time of her death. We conclude that because Monroe's executors consistently represented during the probate proceedings and elsewhere that she was domiciled in New York at her death to avoid payment of California estate taxes, among other things, appellants are judicially estopped from asserting California's posthumous right of publicity. We therefore affirm the district court's order so holding.

Before reaching this conclusion, the Ninth Circuit denied the plaintiff's request for it to take judicial notice under Federal Rule of Evidence 201(b) of appeals pending in the Second Circuit in cases related to Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., 589 F.Supp.2d 331 (S.D.N.Y.2008). The Ninth Circuit acknowledged that these case also dealt with Marilyn Monroe and the right of publicity but ultimately concluded that

Although those cases also involve claims about the ownership of Marilyn Monroe's right of publicity, the issues on appeal bear no relation to the claims at issue here. See Fed.R.Evid. 201; United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) ("[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue.") (quotation marks omitted).

-CM

Make Me Whole, Take 10: Court Of Appeals of Minnesota Issues Most Ludicrous Rule 609(a)(1) Ruling Yet

Another day. Another terrible decision by the Court of Appeals of Minnesota under Minnesota Rule of Evidence 609(a)(1). The court's most recent exercise in lunacy is State v. Heard, 2012 WL 3263775 (Minn.App. 2012). If I am reading this most recent opinion correctly, there is (almost) no set of facts under which any of the five factors considered under Rule 609(a)(1) will favor the defendant. So, congratulations, Court of Appeals of Minnesota. You have finally suceeded in making Rule 609(a)(1) a complete mockery of itself.

In Heard, Carlos Heard was convicted of first-degree murder and second-degree murder. He thereafter appealed, claiming that the trial court erred by allowing the prosecution to impeach him through his prior conviction for manslaughter. In addressing this issue, as always, the Court of Appeals of Minnesota noted that it considers five factors:

(1) the 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.

And, as always, the court found that the first factor automatically favors admissibility because every conviction allows the jury to see the "whole person" of the defendant even if the conviction is for a crime of violence that tells us nothing about the defendant's honesty as a witness. Moreover, as always, the court found that, as long as the defendant's testimony is important (and when is it not?), his credibility is central to the outcome at trial, meaning that the fourth and fifth factors favor admission. 

That takes us to the second factor. Under this factor, Heard (1) committed the prior manslaughter in 1992, (2) was released from confinement for his manslaughter conviction in 1995, (3) allegedly committed the murders in 2005 (apparently slightly less than 10 years' later), and stood trial in 2010. So, for Rule 609(a)(1)/Rule 609(b) purposes, the conviction was slightly less than 10 years old, and, in actuality, the conviction was 18 years' old. In other words, the conviction was about as old as you are going to get under Rule 609(a)(1), and, if it were any older, it would have been covered by Rule 609(b) and its more stringent balancing test. So, the second factor clearly favored Heard, right? Wrong.

According to the court, "Given that appellant's prior conviction was nearly ten years old, if not more than ten years old, we conclude that this factor was neutral or favored appellant." Yes, that's right. Even for the remotest of remote convictions under Rule 609(a)(1), the Court of Appeals of Minnesota could not clearly say that the second factor favored admission.

But what about the third factor? Clearly, this factor favored Heard because of the similarity between manslaughter and murder and the likelihood that the jury would misuse the prior conviction as propensity character evidence, right? Wrong again. Yes, the Court of Appeals of Minnesota did recognize that "[g]iven the similarity of appellant's manslaughter conviction to the charges at issue, there was a risk that the jury misused the evidence of appellant's prior conviction as substantive evidence." But then the court found that

Here, the district court gave the jury a cautionary instruction to use evidence of appellant's prior conviction only when considering appellant's testimony and not as evidence of guilt. The district court's instruction to the jury protected appellant from the possibility that the jury used his past conviction as substantive, rather than impeachment, evidence, and this factor therefore weighed in favor of admissibility. 

Seriously? This is the type of instruction that is typically given in Rule 609 cases. It is simply a garden variety limiting instruction telling jurors how they cannot use evidence. If such an instruction makes the third factor favor admission, that means that the third factor will (almost) always favor admission.

So, to summarize, as long as the defendant's testimony is important (nearly always), as long as his conviction is less than ten years' old (always), and as long as the court gives a limiting instruction (almost always) four of the five factors under Rule 609(a)(1) will favor admission. And even if the conviction is 9+ years old in legal years and 10+, 15+, or even 18+ years old in real years, the other factor merely might favor admission but also might be neutral. Ridiculous!

-CM

Submission Guide for Online Law Review Supplements, Version 6.1, Now Available On SSRN

Thanks to Allen Rostron, I have some additions to my Submission Guide for Online Law Review Supplements. These additions are:

Arizona State Law Journal Blog;

Discourse (Drake);

On Remand (New England)

Dicta (Texas)

Utah OnLaw

Tolle Lege (Villanova)

The newest version of the Guide is now available on SSRN.

-CM

A Certain Relation: 3rd Circuit FInds Only "Close Relatives" Of Principles Need To Be Excluded As Jurors

It is well established that a juror cannot be seated if the juror is some degree of relation to one of the principle in the case, i.e., a party or an attorney. But how closely related does the jurors need to be to a principle for the seating of that juror to automatically mean that the opposing party was denied the right to a trial by an impartial jury? That was the question addressed by the Third Circuit in United States v. Mitchell, 2012 WL 3171563 (3rd Cir. 2012).

In Mitchell, Ricardo Mitchell appealed from his conviction on charges related to his possession of a firearm with an obliterated serial number. During voir dire, the judge asked prospective jurors if anyone was related by blood, business, or marriage to the prosecutor, prompting the following exchange with Juror No. 28: 

Juror 28: He's my blood relative.

The Court: How is he related to you?

Juror 28: By father side.

The Court: What is his relation to you?

Juror 28: Cousin.

The Court: All right. Is there anything in that relationship that would—are you a close cousin or a distant cousin?

Juror 28: Close. But I don't think that have anything to do with it.

The Court: All right. Is there anything in that relationship that would prevent you from following my instructions on the law?

Juror 28: No, Your Honor.

The Court: Is there anything in that relationship that would prevent you from listening to the evidence in this case fairly and impartially?

Juror 28: No, Your Honor.

The Court: All right. Thank you.

After he was convicted, Mitchell appealed, claiming that the seating of Juror No. 28 (as well as Juror No. 97, who was a co-worker of key witnesses in the case) denied him of his right to an impartial jury.

In resolving this issue, the Third Circuit cited the Justice O'Connor's concurrence in Smith v. Phillips, 455 U.S. 209 (1982), in which she stated that those "extreme situations" able to "justify a finding of implied bias" include

a revelation that the juror is an actual employee of the prosecuting agency, that the juror is a close relative of one of the participants in the trial or the criminal transaction, or that the juror was a witness or somehow involved in the criminal transaction. 

The Third Circuit latched onto this "close relative" language and found that

Our Court has not considered the parameters of the kinship category. The touchstone of the inquiry, as previously discussed, is whether the average person in the position of the juror would be prejudiced and feel substantial emotional involvement in the case. In view of that inquiry, we reject the most expansive formulations that categorically presume bias whenever a juror shares any degree of kinship with a party in a case. A distant relative, on average, is unlikely to harbor the sort of prejudice that interferes with the impartial discharge of juror service. On the other hand, the bond between close relatives is intimate enough, on average, to generate a stronger likelihood of prejudice, whether unconscious or intentionally concealed....

In adopting the "close relative" standard, we are concerned both with the right of the defendant to an impartial jury and with preservation of the appearance of justice in the courts....If the seating of a party's relative as a juror would lodge serious doubts in the public's mind about the neutrality of the proceedings, that consideration favors legal attribution of bias. Public confidence in the fairness of the proceedings would suffer if a trial court permitted a juror to deliberate and pass judgment in a case in which her close relative labored as prosecutor to procure a conviction or faced years in prison and the moral and societal condemnation that accompanies a criminal conviction. We cannot say the same for distant relatives, whose relationship is sufficiently attenuated so as not to undermine the appearance of fairness in judicial proceedings.

That said, the Third Circuit found that it had "only a bare-bones description of Juror 28's relationship to the prosecutor" and thus remanded for further factfinding.

-CM

My New Essay: Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause

As I noted on Sunday, what started as a blog post on the Ex Post Facto Clause and the retroactive application of Federal Rules of Evidence 413 and 414 and state counterparts. That essay, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause, is now available on SSRN. Here is the abstract:

In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a given case;” and (2) “do not at all subvert the presumption of innocence….”

Federal Rules of Evidence 413 and 414 as well as state counterparts, however, are neither evenhanded nor consistent with the presumption of innocence. Instead, these rules can only be used to benefit the prosecution, and they subvert the traditional presumption of innocence maintained by the propensity character evidence proscription. Accordingly, courts across the country have erred in finding that the retroactive application of these rules does not violate the Ex Post Facto Clause.

-CM

Sequestered In Lexington: Professor Richard Underwood On Federal Rule Of Evidence 615

Federal Rule of Evidence 615 is a funny little rule of evidence. It 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.

In Geders v. United States, 425 U.S. 80 (1976), the Supreme Court observed that the practice of sequestering witnesses, which goes back to "our inheritance of the common Germanic law," serves two purposes: it "exercises a restraint on witnesses 'tailoring' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid." But is Federal Rule of Evidence 615 in fact a rule of witness sequestration, or is it merely a rule of witness exclusion? That's the topic taken up in the forthcoming article, Following the Rules:  Exclusion of Witnesses, Sequestration and "No-Consultation Orders, by Richard Underwood, a professor at the University of Kentucky College of Law.

As Professor Underwood notes in the introduction to his piece,

What is the little problem with language when we are dealing with Rule 615? The Rule says exclusion of witnesses. It does not say sequestration of witnesses. As we shall see, many lawyers and judges seem to think these terms mean different things. Other lawyers and judges, and even treatise writers, use the terms interchangeably. This can lead to some unfortunate, and ugly, misunderstandings at trial. And, misunderstandings can lead to distrust, which can hurt clients, and hurt lawyers’ reputations.

So, what are some of these misunderstandings? First, can judges use Rule 615 to preclude witnesses from reviewing transcripts of earlier testimony before they testify? As Professor Underwood points out, that is what the judge did in the Zacarias Mousssaoui prosecution as well as in the George Huguely prosecution (which I discussed here). Or can witnesses themselves confer in between their testimony? Some courts say "no," while other courts, such as the Supreme Court of Kentucky in Woodward v. Commonwealth, 219 S.W.3d 723 (Ky. 2007), conclude that Rule 615 "makes separation in the courtroom mandatory, but makes no mention of witnesses interacting outside the courtroom."

Second, once a witness is on the stand, can the judge use Rule 615 to prevent an attorney from conferring with an already called witness about the substance of the witness’s testimony, the likely cross-examination, or the like? Some courts say "yes," while other courts, like Florida courts, say that Rule 615 grants judges no such authority. That said, Florida courts do find that judges can prevent such conferring pursuant to Florida's counterpart to Federal Rule of Evidence 611, which allows judges to "exercise reasonable control over the mode and order of examining witnesses and presenting evidence...."

The bottom line for Professor Underwood is that attorneys should "assume nothing," and instead see what courts in their jurisdiction have done rather than rely on the actual language of Rule 615.

-CM

Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause

Sometimes a blog post runs a bit long. In the case of State v. Kibbee, 815 N.W.2d 872 (Neb. 2012), what initially started as a blog post turned into an essay. This blog post will outline my basic arguments against the decision in Kibbee, and I will post the link to my essay on SSRN later this week. Any thoughts and comments on either would be appreciated either here or e-mailed to Mille933@law.sc.edu:

In State v. Kibbee, 815 N.W.2d 872 (Neb. 2012), Eddie Kibbee brought an Ex Post Facto Clause challenge to his convictions for first-degree sexual assault and felony child abuse. Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Kibbee's claim was that the trial court erred by retroactively applying Nebraska Rule of Evidence 414(1), which provides that

In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense or offenses of sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant.

Nebraska Rule of Evidence 414(1) is thus similar to Federal Rules of Evidence 413 and 414, which allow for the admission of prior acts of sexual assault and child molestation by criminal defendants. Kibbee claimed that Rule 414(1) was clearly a law that alters the legal rules of evidence, meaning that it was the fourth type of law that cannot be applied retroactively consistent with the Ex Post Facto Clause. So, why, like every defendant before him in a similar case, did he lose?

In Carmell v. Texas, a defendant appealed his convictions for various sexual crimes, claiming that Texas dispensed with its corroboration requirement after his alleged crimes but before his trial and then wrongfully applied applied this new rule at his trial. The Supreme Court agreed, finding that the corroboration requirement was the fourth Calder v. Bull category.

In reaching this conclusion, however, the Court indicated in a footnote that "[o]rdinary rules of evidence…do not violate the Clause."  Instead, "[r]ules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in a given case."  Moreover and "[m]ore crucially, such rules, by simply permitting evidence to be permitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption."

So, the question thus becomes whether Federal Rules of Evidence 413 and 414 and state counterparts are "[o]rdinary rules of evidence" in these two regards. And the clear answer is "no."

First, Federal Rules of Evidence 413 and 414 and state counterparts are not "evenhanded, in the sense that they may benefit either the State or the defendant in a given case." Instead, they solely benefit the prosecution. And, indeed, because of the Rape Shield Rule contained in Federal Rule of Evidence 412, a defendant normally cannot respond to evidence of his prior sexual acts with evidence of the victim's prior sexual acts. Thus, viewed in context or in isolation, these Rules (and Rule 415 in civil cases) are extraordinary in precisely the way that triggers Ex Post Facto Clause scrutiny (a point partially recognized by the dissent in Carmell).

Second, Federal Rules of Evidence 413 and 414 and state counterparts do subvert the presumption of innocence. It is well recognized by courts that the propensity character evidence proscription is in place to maintain the presumption of innocence so that the baseline assumption by jurors is not, "once a robber, always a robber" or "once a rapist, always a rapist." As the Third Circuit cautioned in Government of the Virgin Islands v. Toto, 529 F.2d 278, 283 (3^rd Cir. 1976), when evidence of a defendant’s prior crimes reaches the jury, "it is most difficult, if not impossible, to assume continued integrity of the presumption of innocence” because “[a] drop of ink cannot be removed from a glass of milk."

Moreover, these Rules do concern whether the admissible evidence is sufficient to overcome the presumption of innocence. Recall that Nebraska Rule of Evidence 414(1) allows for the admission of evidence of prior sex crimes "for its bearing on any matter to which it is relevant." Assume that Nebraska never adopted Nebraska Rule of Evidence 414(1). After Kibbee was convicted, he could have claimed on appeal that his convictions were against the weight of the evidence, and he might have won. Maybe there was insufficient evidence of mens rea. Maybe there was insufficient evidence of actus reus. Maybe there was insufficient evidence of some other elements of the crime charged.

But now consider the operation of Nebraska Rule of Evidence 414(1). Evidence of Kibbee's prior sex crime was admissible "for its bearing on any matter to which it is relevant." Was that prior crime relevant to the mens rea of the crimes charged? The actus reus? Any other element. According to courts, which have been relcutant to apply Rule 403 to these new sexual propensity character evidence rules. Thus, in a very real sense, these rules do subvert the presumption of innocence and do concern whether the admissible evidence is sufficient to overcome the presumption of innocence.

Finally, these results are the goal of these Rules and not merely their result. When Congress enacted them outside the normal rulemaking process (another way in which these Rules are not "ordinary), it did so because it was dissatisfied with the conviction rates in sexual assault and child molestation cases, with the Rules being an artificial attempt to increase them. Therefore, these Federal Rules are the fourth type of rule envisioned in Calder, and they cannot be applied retroactively consistent with the Ex Post Facto Clause.

-CM