EvidenceProf Blog

Class Act: Eastern District Of New York Finds Rule Against Hearsay Applies At Class Certification Stage

Outside the Second Circuit, courts are split as to how stringently to apply the rules of evidence at the class certification stage. See, e.g., Serrano v. Cintas Corp., Civ Nos. 04–40132, 06–12311, 2009 WL 910702, at *3 (E.D.Mich. Mar.31, 2009) (declining to strike declarations in connection with motion to certify, despite admissibility challenges; holding that it was appropriate to consider all evidence at the class certification stage, while deferring admissibility determinations); Lewis v. First Am. Title Ins. Co., 265 F.R.D. 536, 552–53 (D.Idaho 2010) (noting split, but deciding that, for class certification purposes, court would not strictly apply evidentiary rules). Lujan v. Cabana Management, Inc., 2012 WL 3062017 (E.D.N.Y. 2012).

So, how did the Eastern District of New York rule in Lujan?

In Lujan,

Plaintiff Gerardo Valdez Lujan...and several "opt-in" plaintiffs...br[ought] [a] lawsuit against defendants Cabana Management, Inc....and Glenn Frechter...to recover minimum wage and overtime payments allegedly due to Lujan and other current and former employees of defendants, who operate three New York City-area restaurants.

The plaintiffs subsequently moved for class certification pursuant to Federal Rule of Civil Procedure 23. In support of this motion, the plaintiffs submitted declarations that contained some inadmissible hearsay. The question for the Eastern District of New York was thus whether and to what extent the Federal Rules of Evidence apply at the class certification stage, which is what prompted the block quote that led this post.

And, according to the Eastern District of New York,

after reviewing Second Circuit case law addressing the evidentiary standards applicable to Rule 23 motions, this Court is of the opinion that the Second Circuit would require that such declarations be admissible (i.e., based on personal knowledge and either non-hearsay or information subject to hearsay exceptions).

Specifically, the court noted that

In 2008, the Second Circuit considered what factual finding was required on a Rule 23 motion in the context of a securities fraud putative class action. See In re Salomon Analyst Metromedia Litig., 544 F.3d 474 (2d Cir.2008). Addressing a 2004 district court opinion that had held that on a class certification motion, the plaintiffs had to make a "prima facie" showing of a particular securities fraud element by "admissible evidence," the Second Circuit rejected the "prima facie" standard but, by its silence, implicitly accepted the admissibility requirement. See id. at 486 n. 9 (discussing DeMarco v. Lehman Bros., Inc., 222 F.R.D. 243, 246–47 & n. 9 (S.D.N.Y.2004)). Furthermore, in the In re IPO case discussed above, the Second Circuit analogized the evidentiary showing under Rule 23 to "any other threshold prerequisite for continuing a lawsuit." In re IPO, 471 F.3d at 42. Significantly, in determining a threshold issue, such as jurisdiction, courts may not rely on inadmissible hearsay. See Commercial Union Ins. Co. v. Blue Water Yacht Club Ass'n, 239 F.Supp.2d 316, 319 (E.D.N.Y.2003) (citing Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986)).

I agree with this analysis as well as the court's citation to Wal-Mart Stores, Inc. v. Dukes, in which the Supreme Court noted that "[t]he District Court concluded that Daubert did not apply to expert testimony at the certification stage of class-action proceedings" and the responded, "We doubt that is so...." While this was dicta and dealt with the applicability of Federal Rule of Evidence 702 at the class certification stage, I certainly think that it lends strong inferential support to Federal Rule of Evidence 802 applying at the class certification stage.

-CM 

Common Law: Why Drew Peterson Shouldn't Be Able To Appeal His Verdict Based On The Unconstitutionality of "Drew's Law"

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Yesterday, a jury finally convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Many articles discussing the verdict made reference to hearsay statements by Savio and Stacy Peterson (Drew Peterson's fourth wife) being admitted under "Drew's law," a state counterpart to Federal Rule of Evidence 804(b)(6) enacted specifically for the Peterson prosecution (see, e.g., here and here). Indeed, many articles discussed how these hearsay statements were the key pieces of evidence in a trial that was otherwise based upon circumstantial evidence (see, e.g., this article with quotes from a holdout juror). But here's the thing: Unless I'm missing something, these statements were not admitted pursuant to "Drew's law," contained in 725 ILCS 5/115-10.6.

As noted, by enacting "Drew's Law," Illinois created a statutory counterpart to Federal Rule of Evidence 804(b)(6). This new law created a new hearsay exception, with the admissibility of statements under the exception being

determined by the court at a pretrial hearing. At the hearing, the proponent of the statement bears the burden of establishing 3 criteria by a preponderance of the evidence:        

(1) first, that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness;        

(2) second, that the time, content, and circumstances of the statements provide sufficient safeguards of reliability;        

(3) third, the interests of justice will best be served by admission of the statement into evidence.

But here's the thing: In addition to Federal Rule of Evidence 804(b)(6) and "Drew's Law," there is the common law doctrine of forfeiture by wrongdoing, which allows for the admission of the same type of statements admitted under Rule 804(b)(6) and "Drew's law," but without a predicate showing of reliability. 

And, according to the Appellate Court of Illinois, Third District, in People v. Peterson, 968 N.E.2d 204 (Ill.App. 3 Dist. 2012), it was this common law doctrine that applied in the Drew Peterson prosecution and not "Drew's law." In Peterson, the circuit court had found that some of the statements eventually admitted at Peterson's trial were inadmissible under "Drew's law." In reversing, the Appellate Court found that

In contrast to the forfeiture by wrongdoing doctrine, reliability is an element of the statutory hearsay exception for the intentional murder of a witness, under which the circuit court ruled on May 18, 2010. See 725 ILCS 5/115–10.6(e)(2) (West 2008) (providing that the party seeking the admission of hearsay statements under the statute bears the burden of establishing by a preponderance of the evidence that "the time, content, and circumstances of the statements provide sufficient safeguards of reliability"). Thus, the statute stands in direct conflict with the common law doctrine of forfeiture by wrongdoing in Illinois.

The Appellate Court accordingly deemed the statements by wives #3 and #4 admissible "because the statute neither trumps nor supplants the common law." 

Therefore, unless I'm missing something, Drew Peterson can't challenge "Drew's law" on Ex Post Facto or Confrontation Clause grounds because it was the common law and not "Drew's law" that led to the admission of the subject statements.

-CM

Your Prejudice, I Presume?: 7th Circuit Rejects Indiana's Presumption Against Jury Prejudice

A defendant is on trial for neglecting and murdering his three year-old stepson. After he is convicted, the defendant learns that (a) before his trial, a juror's son informed the juror that the defendant was likely innocent, but that (b) during the trial, the juror found out that his son and several co-inmates changed their mind about the defendant and thought him guilty. The juror then shared this information with at least some other jurors. If the defendant appeals his verdict, is the presumption that he was unfairly prejudiced by this extraneous prejudicial information or that he was not prejudiced by this information. In Indiana, it used to be the latter, but thankfully that is no longer the case given the recent opinion of the Seventh Circuit in Hall v. Zenk, 2012 WL 3711879 (7th Cir. 2012).

In Hall, the facts were as stated above, with Virgil Hall appealing his conviction, arguing

that the State should have had the burden to prove that the extraneous information inserted by [the juror] did not prejudice Hall. The appellate court expressed its discomfort with Indiana law, suggesting that the burden should be on the State to prove that improper, extraneous information that reaches the jury did not cause prejudice to a defendant. The court nonetheless believed itself to be bound by Indiana Supreme Court precedent, which stated that the burden is on the defendant to show that he was actually prejudiced by an intrusion upon the jury before a new trial can be granted. See Griffin v. State, 754 N.E.2d 899, 901 (Ind.2001). Because the appellate court was not permitted to consider any testimony from jurors regarding their perception of the effect of the extraneous information, the court believed that it had a dearth of information upon which to rule, and found against Hall simply because the burden was on him to prove prejudice.

After being unsuccessful in the Indiana state courts, Hall filed a habeas petition under 28 U.S.C. § 2254, claiming that the Indiana courts contravened clearly established federal law when they gave Hall the burden of showing that improper communications with a juror in his case resulted in actual prejudice.

In agreeing with Hall, the Seventh Circuit cited to Remmer v. United States, 350 U.S. 377 (1956), and its holding that "[i]n a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial...." And while the court noted that subsequent precedent has called into question the broadness of this Remmer presumption, it was still

confident that despite some ambiguity regarding when the Remmer presumption should apply, all reasonable interpretations of Remmer and its progeny would lead to a presumption of prejudice in favor of Hall in his postverdict hearing. Thus, the trial court that oversaw Hall's conviction acted contrary to clearly established federal law under AEDPA. 

-CM

Informer, You Know Say: NJ Court Finds that Identity Of Confidential Informant Didn't Have To Be Disclosed

A defendant is charged with possession of cocaine with intent to distribute. That cocaine was seized pursuant to a search warrant obtained in large part on the basis of information from a confidential informant.  After the defendant is convicted, he appeals, claiming that the identity of the confidential informant should have been disclosed so that he could mount a challenge to the search warrant. Does he have a winning argument? As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Colon, 2012 WL 3705087 (N.J.Super.A.D. 2012), the answer is likely "no." But did the court's analysis make any sense?

In Colon, the facts were as stated above. Specifically, police officers set up controlled buys between teh confidential informant and the defendant's girlfriend, Raneesha Griffin. The police then used this information to obtain a search warrant that was eventually used to seize the cocaine used to convict the defendant, Israel Colon.

In addressing Colin's argument, the Superior Court of New Jersey, Appellate Division found that the issue was governed by New Jersey Rule of Evidence, which provides that

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this State or of the United States to a representative of the State or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

Then, in finding that the informant's identity was not essential to a afair determination of the issues, the court concluded that

 

In this case, CI# 2 was involved in undercover purchases of cocaine from Griffin. CI# 2 never had any face-to-face interaction with defendant in the course of the two undercover purchases. Consequently, the informant's participation had little relevance to the alleged entrapment of defendant with respect to a substantial quantity of cocaine and other evidence of drug distribution activity seized from defendant's home.

Furthermore, the indictment did not charge defendant with distribution of cocaine based on the controlled purchases. Rather, the indictment charged conspiracy and related narcotics offenses based on the evidence seized directly by law enforcement authorities pursuant to search warrants on March 16, 2009. Thus, the potential testimony of the informant was tangential to the specific charges on which defendant was indicted.

 

Huh? Colon wanted the informant's identity to challenge the validity of the search warrant. It is thus irrelevant that the crimes did not stem from the controlled purchases. The search warrant stemmed from the controlled purchases, which is why the informant's identity could have been essential to Colon's challenge to the warrant. And who cares whether the informant had a face-to-face interaction with Colon? Ostensibly, Colon was claiming that the informant was lying about the controlled purchases. Does it matter whether those alleged purchases involved Colon or his girlfriend? I do not get the court's logic at all.

-CM

Free Musketeer? Dezmine Wells & The Due Process Implications Of Student Disciplinary Proceedings

When I was at the University of Virginia, I served as a judge on the First-Year Judiciary Committee and later as a student attorney for the University Judiciary Committee. During my time on those committees, I saw students found "not guilty" in criminal courts found "guilty" by the judiciary committees. And, during my time on those committees, I saw students found "guilty" by criminal courts found "not guilty" by the judiciary committees. (In fact, I secured a "not guilty" verdict in one of these cases). When I look back on my experience, I realize that the whole student justice thing is kind of crazy. Student attorneys and student judges decide the fate of other students while using a lower burden of proof and nothing really resembling the rules of evidence. Does such student justice constitute due process, especially when it results in the dismissal of a student? And what about when that student is found "not guilty" by the criminal justice system? Or, worse yet, what about when that student is not even indicted by a grand jury? This brings us to the case of Dezmine Wells.

Wells is a college basketball player who used to play for the Xavier Musketeers. Until recently, he was best known for his role in the brawl with cross-town rival Cincinnati on the hardwood. But then, he was expelled from school for "a serious violation of the Code of Student Conduct." That violation ostensibly involved allegations of sexual assault because those were the allegations that an Ohio grand jury later heard.

Ultimately, however, that grand jury did not indict Wells, despite grand juries indicting suspects over 99% of the time. Indeed, Tom Wolfe in "The Bonfire of the Vanities" famously quoted Judge Sol Wachtler as saying that "a grand jury would 'indict a ham sandwich,' if that's what you wanted."

So, of course, it is easy to see why Hamilton County prosecutor Joe Deters, who handled Wells' case, said

"There is something seriously flawed with a procedure where a young man and his accuser appear before a group of people, which I would suggest probably isn’t very well trained in assessing these types of cases, and they sit there and tell their stories. No lawyers, nothing. There’s just something wrong with that...."

Then, there was Xavier's response:

"Federal Law (Title IX) and Federal Regulations and Guidances prohibit Universities from ceding student conduct matters to the criminal justice system. The Federal Law requires schools to act quickly and all schools, by law, must use the 'preponderance of evidence' standard, whereas the criminal justice system uses the 'probable cause' standard to indict, and the 'beyond a reasonable doubt' standard to convict."   

"The process used by the Xavier University Conduct Board is the standard used in American universities. The XU Conduct Board heard evidence that may or may not have been heard by the Grand Jury. After the Conduct Board reached its decision, the matter was considered and upheld by an appeal board of members of the student body, faculty and staff and is final."

But does Xavier's response make sense? True, to convict a jury must find guilt beyond a reasonable doubt, but to indict, a grand jury merely must find probable cause. See, e.g., Pierce v. Woyma, 2012 WL 3758631 (Ohio App. Dist. 2012). And while the rules of evidence limit the admission of evidence at trial, the rules of evidence don't apply to grand jury proceedings. See, e.g., State v. Mackey, 2005 WL 1415419 (Ohio App. 6 Dist. 2005). So, what evidence would the student disciplinary committee have heard that the grand jury did not (According to Deters, the answer is "none").

Did Wells get due process? Does any student before any student disciplinary committee get due process? I don't know, but I do know that Xavier's Student Handbook states that

"A student who is the subject of a criminal investigation or case arising  out of the same or a related set of facts to a pending student conduct  matter may be given the option to postpone the student conduct process pending the final outcome of the pending criminal investigation and/or  charges. The University’s decision to offer this alternative shall be made  only at the initiative of and at the sole discretion of the Interim Dean of  Students, or designee. In exchange, the student is required to withdraw  immediately as a student from Xavier and agrees not to appear on-  campus for any reason without written documentation from the Interim  Dean of Students, and must be accompanied by an official escort. At the  culmination of the criminal proceedings, the student may petition the  University to be reinstated as a student. However, the University reserves  the right to deny reinstatement for any reason, even if the student is fully  exonerated or the charges are dismissed. If the petition is granted, the  University may pursue the postponed student disciplinary process, even if  the student was fully exonerated or the criminal charges were dismissed.  In most cases, the petition will only be accepted if the student has been  fully exonerated from all criminal charges or the charges were dismissed." 

I wonder why this wasn't done in Wells' case. What I do know is that Wells transferred to Maryland today and will seek a waiver that will allow him to play this season. Such a waiver would be unprecedented and allow Wells to bypass the general rule that dismissed students have to sit out a year before playing for a new school. Will the NCAA grant the waiver, and, of so, what does it say about student disciplinary proceedings?

-CM

Silence Please: Court Of Appeals Of Texas Applies Silent Witness Theory Of Authentication To "Jumbled Mess"

A defendant is convicted of driving while intoxicated. This conviction is based in large part on the admission of a DWI videotape recorded at the scene of the accident. "Admittedly, the videotape was a 'jumbled mess' because it did not operate correctly as it was produced from an older model dashboard camera." Was the videotape properly authenticated? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Hines v. State, 2012 WL 3731646 (Tex.App.San Antonio 2012), the answer is "yes." I disagree.

In Hines, the facts were as stated above, with the defendant, Roscol Hines, "claim[ing] the tape could not be authenticated because it was not 'made' by Officer Gallegos; rather, the videotape was from another officer's dashboard camera." The Court of Appeals of Texas disagreed, finding that

As for Hines's argument that the tape could not be authenticated by Officer Gallegos because he had not operated the recording device, the Texas Court of Criminal Appeals has overruled Kephart v. State, 875 S.W.2d 319 (Tex.Crim.App.1994), thereby removing the requirement that a witness testifying as to the authenticity of a piece of evidence be a "witness with knowledge" in the context of an audio recording. See Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998). In other words, a witness is no longer required to be the maker of the recording or have otherwise participated in the conversation in order for his testimony that the recording is what it is claimed to be to sufficiently authenticate it....

In other words, Texas has adopted the "silent witness" theory of authentication, which generally requires the satisfaction of at least five factors before a surveillance video, DWI recording, or similar evidence can be admitted:

evidence of the time and date, presence or absence of evidence of tampering, the operating condition and reliability of the system, operating and testing procedures, and the identification of participants depicted in the recording. State v. Haight-Gyuro, 186 P.3d 33 (Ariz.App. Div. 2 2012) (emphasis added).

So, while most courts require the system creating a "silent witness" recording to be in good operating condition and reliable, the Court of Appeals of Texas had no problem with the older model dashboard camera that produced a "jumbled mess." Instead, according to the court,

Hines's argument that the poor quality of the video tape makes it impossible to authenticate also fails. In Schneider v. State, the defendant argued that certain audio tapes were inadmissible because they contained gaps the witness could not explain. 951 S.W.2d 856, 862 (Tex.App.-Texarkana 1997, pet. refd). The appellate court held the tapes were admissible because the sponsoring witness testified the tapes fairly and accurately depicted the conversations therein....

-CM

Deep Impact: 9th Circuit Concludes That Retroactive Application Of Victim Impact Law Isn't Ex Post Facto

Article I, Section 9 of the Constitution states in relevant part that

No bill of attainder or ex post facto Law shall be passed.

And, Article I, Section 10 states in relevant part that 

No state shall enter into any ex post facto law.

Pursuant to the Supreme Court's opinion in Calder v. Bull, these Ex Post Facto clauses prohibit the retroactive application of, inter alia, 

"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."

Moreover, "[w]hile the Ex Post Facto Clause applies directly to legislative acts, the Fourteenth Amendment extends Article 1, Section 10's prohibition on ex post facto laws to include judicial decisions." So, can a new law allowing for the admission of victim impact evidence be applied retroactively consistent with the Ex Post Facto clauses? According to the recent opinion of the Ninth Circuit in Gentry v. Sinclair, 2012 WL 3667319 (9th Cir. 2012), the answer is "no." "yes." I disagree.

In Gentry, Jonathan Gentry was convicted in a Washington state court of aggravated first-degree murder, with a finding of the aggravating circumstance of committing the murder to protect or conceal the identity of a person committing a crime, and was sentenced to death. After Gentry's crime, but before his trial, Washington passed the Washington Victims' Rights Amendment (VRA), which allowed for the admission ofvictim impact evidence. With the Supreme Court's opinion in Payne v. Tennessee, the VRA became effective, allowing for the admission of victim impact evidence at Gentry's sentencing hearing.

After he was sentenced, he appealed, claiming that the VRA and Payne could not be applied retroactively consistent with the Ex Post Facto clauses. The Ninth Circuit acknowledged that "[t]he Ex Post Facto Clause bars the government from passing laws that impose a new punishment or increase punishment for a crime committed before passage of the law." But the court then found that

Only certain types of changes in the rules of evidence fall into th[e] fourth Calder category. There is a violation under this category when laws that require a minimum type or amount of evidence for conviction are changed by eliminating a type of evidence or decreasing the amount of evidence needed for conviction. However, an ex post facto problem does not arise for a law that "does nothing more than admit evidence of a particular kind in a criminal case...which was not admissible under the rules of evidence as enforced by judicial decisions at the time the offense was committed."...

While the decision in Payne allowed victim impact statements to be admitted, the change did not lessen the degree or amount of evidence required to impose the death sentence. The prosecution was still required to meet its burden of proving a statutory aggravating factor during the guilt phase of the trial and rebutting mitigating evidence at the sentencing phase....The penalty phase jury was still required to weigh the victim impact statement, in conjunction with the other evidence, to determine whether that evidence was sufficient to overcome a presumption that remained the same both before and after Payne. While allowing victim impact evidence gave the prosecution an additional option in terms of the range of evidence that could be used to meet its burden, the change in law did not allow the prosecution to obtain a sentence on less evidence.

Let's reconsider this last sentence again: "While allowing victim impact evidence gave the prosecution an additional option in terms of the range of evidence that could be used to meet its burden, the change in law did not allow the prosecution to obtain a sentence on less evidence." And, let's now reconsider the fourth Calder category: "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."

Do you see the problem? According to the Ninth Circuit, the VRAa and Payne allowed the prosecution to obtain a sentence on "different evidence" because it gave the prosecution an "additional option...." But this wasn't good enough according to the court because it did not allow the prosecution to obtain a sentence on "less evidence." If we look at the language of Calder, we see that this dichotomy cannot hold. Instead, Calder recognizes that new rules of evidence are Ex Post Facto if they allow for a conviction or sentence based upon "less, or different, testimony." So, what is the justification for the dichotomy created by the Ninth Circuit? 

-CM