January 28, 2012
Do You Yahoo?: NJ Court Applies Federal Rule Of Evidence 901(b)(4) To Find Proper Authentication Of Yahoo! Chats
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.
That said, the New Jersey Rules of Evidence do not have a counterpart to Federal Rule of Evidence 901(b)(4), which provides that evidence can be authenticated through
The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.
As the recent opinion of the Superior Court of New Jersey, Appellate Division in State v D.D., 2012 WL 246378 (N.J.Super.A.D. 2012), makes clear however, New Jersey courts do look to Rule 901(b)(4) for guidance.
In D.D., D.D., was convicted of two counts of first-and one count of second-degree sexual assault on three boys all under the age of twelve and three counts of child endangerment. After he was convicted, D.D. appealed, claiming, inter alia, that the trial court erred in allowing for the admission of a computer printout of Yahoo! text messages or "chats" he had with his alleged co-conspirator Robert Pelle because they were improperly authenticated. Specifically, D.D. claimed that the printouts were improperly authenticated because the person who printed them out from Pelle's computer did not testify at trial.
In response, the Superior Court of New Jersey, Appellate Division noted that Federal Rule of Evidence 901(b)(4) permits "authentication based on such distinctive characteristics as proof of a communication's contents or substance." The court then found that
There is sufficient circumstantial evidence to support the authentication of the Yahoo! chats, even though the individual who retrieved them from Pelle's computer did not testify. Specifically, the contents of the chats are consistent with the trial testimony of Pelle and defendant. For example, the chats showed that: "Robert," identified as Pelle, was conversing with someone named "Dave" who lived nearby; "Dave" met Robert at a campground; and Pelle asked if "Dave" and "J" wanted to stop by after a game. Moreover, Pelle identified his screen name on the chats, acknowledged that he participated in the chats, and confirmed that the contents of the chats were the same as his offline conversations with defendant. Pelle also testified that the chats took place over seven days in March 2004; that the federal government retrieved the chats from his hard drive; and the chats were the ones he had not deleted from his computer with the wiping program. And despite his denial of any online communications with Pelle, defendant's testimony was also consistent with the matters addressed in these chats. Thus, there was sufficient circumstantial evidence for a reasonable juror to conclude that these chats were taken from Pelle's computer.
January 27, 2012
Objection!: Appellate Court Of Connecticut Finds Issue Waived Because Defendant Cited To Federal Rule Of Evidence
In order to preserve an issue for appellate review, a party must make a timely objection and state the specific ground for the objection. The recent opinion of the Appellate Court of Connecticut in Corbett v. Commissioner of Correction, 2012 WL 224914 (Conn.App. 2012), is instructive in this regard. But did the court go too far?
In Corbett, Terrance Corbett, appealed from the judgment of a habeas court denying his third amended petition for a writ of habeas corpus. Part of Corbett's argument on appeal was that the court erred by precluding him from presenting into evidence a prior consistent statement by Jamelle Byrd, a witness. The Appellate Court of Connecticut, however, rejected this argument, finding that
The petitioner, in his second renewed offer of Byrd's testimony, only cited to rule 801(d)(1)(B) of the Federal Rules of Evidence in making this claim, and did not cite to the Connecticut Code of Evidence. The court denied the motion, noting the "absence of any showing or indication that Federal Rule of Evidence 801(d)(1)(B) has been adopted by the Supreme Court of Connecticut or otherwise is applicable in state court proceedings."
"Our review of evidentiary rulings made by the trial court is limited to the specific legal ground raised in the objection."... Moreover, "[a]lthough the [c]ode follows the general format and sometimes the language of the Federal Rules of Evidence, the [c]ode does not adopt the Federal Rules of Evidence or cases interpreting those rules."...We therefore decline to review this claim.
Pretty harsh, right? It's clear that Corbett objected at trial that the subject statement qualified for admission as a prior consistent statement and merely erred by citing to Federal Rule of Evidence 801(d)(1)(B) rather than Connecticut Code of Evidence Section 6-11. But should that simple error have precluded appellate review when it was clear that the court basically knew what Corbett was doing? The court in Corbett of course was careful to distinguish the Connecticut Code of Evidence from the Federal Rules of Evidence, but Federal Rule of Evidence 103 deems an objection sufficient to preserve an issue for appellate review if the objection states the specific ground for the objection or if the ground for the objection "was apparent from the context..." Shouldn't the appellate court have applied this principle in Corbett?
January 26, 2012
Ham Handed?: 6th Circuit Finds Character Evidence Properly Excluded Despite Mercy Rule
a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it...
That said, Federal Rule of Evidence 405(a) states that
When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
And what this means is that the defendant in United States v. Silber, 2012 WL 171397 (6th Cir. 2012), was out of luck.
In Silber, Dr. Alan Silber was convicted defrauding Medicare to the tune of several hundred thousand dollars by prescribing expensive medications to patients who did not need them. At trial, the district court excluded Silber's testimony that he received no overbilling notices from Medicare while working in earlier jobs. Silber offered this evidence to show his honest character.
After he was convicted, Dr. Silber appealed, claiming that his proffered testimony was admissible under Federal Rule of Evidence 404(a)(2)(A). The Sixth Circuit disagreed, concluding that
Although a criminal defendant generally may introduce character evidence, see Fed.R.Evid. 404(a)(2)(A), he must do so through "testimony about [his] reputation or by testimony in the form of an opinion," Fed.R.Evid. 405(a). Only where "a person's character or character trait is an essential element" of the charge (not true here) may the defendant introduce character evidence about "relevant specific instances of the person's conduct."
And, according to the court,
The testimony at issue falls squarely within Rule 405's implicit prohibition. A leading treatise provides a helpful example: "a federal inspector charged with accepting a bribe from a meat packer can call a character witness to show his reputation for being honest, but he may not call other meat packers to testify that he did not solicit bribes from them."...Silber's attempt to establish his character for honesty by showing that Medicare had not previously noticed any overbillings from him was, if anything, even more ham-handed: rather than calling others to testify to specific instances in which he had not behaved dishonestly, he attempted to do so himself. The court properly excluded the testimony.
January 25, 2012
This Is A Recording?: California Court Finds No Error In Admission Of Recorded Recollection Despite Contradictory Testimony
In a post in August 2010, I wrote about the opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010). That post concerned California Evidence Code Section 1237, which, similar to Federal Rule of Evidence 803(5), provides an exception to the rule against hearsay for
(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:
(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;
(2) Was made
(i) by the witness himself or under his direction or
(ii) by some other person for the purpose of recording the witness' statement at the time it was made;
(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and
(4) Is offered after the writing is authenticated as an accurate record of the statement.
(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.
That post questioned whether the California Supremes were correct in deeming a statement made three months after an event admissible under California Evidence Code Section 1237. In its recent opinion in People v. Gallardo, the Court of Appeal, Fourth District, Division 1, California, also allowed for the admission of a statement that was about three months old. And, as in People v. Cowan, I'm not sure that the court got it right, albeit for a different reason.
In Gallardo, Robert A. Gallardo, Jr. was convicted of making a criminal threat, misdemeanor infliction of corporal injury to a person he formerly dated, vandalism, two counts of disobeying a restraining order, and misdemeanor battery. He thereafter appealed, claiming, inter alia, that the trial court erred in allowing for the admission, under California Evidence Code Section 1237, of a recorded statement made by the alleged victim to police about three months after the crime charged. The appellate court initially noted that Cowan held that even statements made three months after an even can still be made while the event was fresh in the witness' memory and satisfy Section 1237.
Gallardo claimed, however, that the alleged victim's recorded statement was "unreliable because her trial testimony contradicted the statement, and she admitted she was angry at the time she made the statement." The appellate court disagreed, concluding that
Gallardo's argument...does not go to the admissibility of the evidence, but instead, to its weight. The jury heard the differing testimony and, as the factfinder, was in the best position to determine which testimony was most credible.
I disagree. As the language of Section 1237 makes clear, a recorded recollection is only admissible if it "[i]s offered after the witness testifies that the statement he made was a true statement of such fact...." In other words, the classic recorded recollection case involves a witness who forgets an event or portions of an event but is willing to testify that a prior recorded statement was a true statement of fact. That's not what happened in Gallardo. Instead, the alleged victim's trial testimony apparently contradicted her prior recorded statement, meaning that the alleged victim did not testify that the recorded statement was a true statement of fact. And despite the court's contrary conclusion, such testimony is a foundation fact, not merely something that goes to the weight of the evidence.
January 24, 2012
Reelin' In The Years: NJ Case Reveals Differences Between Federal & New Jersey Rule Of Evidence 609
Federal Rule of Evidence 609(b) states:
(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
Moreover, the Advisory Committee Note to this Rule states that "[a]lthough convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." In other words, it is rare that a conviction that is more than ten years old is admissible under Federal Rule of Evidence 609(b).
Conversely, New Jersey Rule of Evidence 609 simply states that
For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.
And, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Rock, 2012 WL 177866 (N.J.Super.A.D. 2012), makes clear, convictions that are more than ten years old are routinely admitted under this Rule.
In Rock, Eric Na–Eem Rock was convicted of two counts of armed robbery, second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon, and, after a second jury trial, second-degree possession of a weapon by a convicted person. Before trial, the court determined that two of Rock's prior convictions would be admissible in the event that he testified at trial: Rock's 1998 convictions for fourth-degree evidence tampering and second-degree aggravated assault. Specifically,
The judge noted that the evidence tampering conviction "even though it's only a fourth[-]degree crime,... falls into that...category of crimes that impact one's veracity." The judge concluded that "the convictions pass the test with regard to remoteness" and will "be admitted for purposes of impeachment if the defendant" testifies. However, "it would be appropriate to sanitize" both convictions, allowing the State to refer only to the "date of the conviction, the degree of the crimes of which he was convicted, and the sentence that was imposed for each conviction."
In addressing Rock's appeal, the the Superior Court of New Jersey, Appellate Division held that
There is no bright-line rule providing a length of time after which a prior conviction is automatically considered too remote. See State v. Murphy, 412 N.J.Super. 553, 564 (App.Div.) (contrasting New Jersey case law with Fed.R.Evid. 609(b), which establishes a ten-year rule for admissibility of prior convictions)....In appropriate circumstances, convictions older than ten years have been found admissible.
The court then found that
the trial judge did not mistakenly exercise his discretion in ruling that defendant's convictions would be admissible if he testified. Certainly, a jury was entitled to know this information in assessing defendant's truthfulness. Moreover, these convictions clearly had a bearing on defendant's credibility and were not so distant in time to be remote.
Really? An aggravated assault conviction had a bearing on Rock's credibility? I don't see it. But what I do see is that if Rock's case were governed by Federal Rule of Evidence 609(b), there is no way that it would have been deemed admissible.
January 23, 2012
Bad Trip: Court Of Appeals Of Iowa Oddly Hedges On Issue Of Whether Statement Qualified As Present Sense Impression
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
So, let's say that a defendant is charged with second-degree murder and related charges. And let's say that at several points during trial, the prosecution introduces a hearsay statement that the defendant was on a "bad crack trip" at the time of the killing. Finally, let's say that, on appeal, the prosecutor himself conceded that the person making that statement had no information to suggest that the defendant actually used crack cocaine on that evening. Is there any chance that the statement qualified for admission as a present sense impression under Rule 5.803(1)? Well, let's take a look at the recent opinion of the Court of Appeals of Iowa in State v. Mayton, 2012 WL 163047 (Iowa.App. 2012).
In Mayton, the facts were as stated above. In response to the defendant's appeal, the prosecution claimed that the subject statement was not hearsay because it was offered "to show the responses and reactions of the persons hearing the statements" or to "provide context," not to prove the truth of the matter asserted (i.e., that the defendant was on a "bad crack trip"). The Court of Appeals of Iowa disagreed, concluding that "[t]here is no question in our minds that the statement was offered to prove the truth of the matter asserted...." Specifically, the court found that
The responses and reactions of individuals at the scene, as well as the context, were fleshed out in great detail over the course of the two-week trial and this single statement did nothing to enlighten the jury about the unfolding events....The statement did, however, cast an unwarranted aspersion on [the defendant] because, as the prosecutor himself conceded, [the declarant] had no information to suggest [the defendant] actually used crack cocaine on that evening. As the statement was offered for the truth of the matter asserted, it was hearsay.
The court then pointed out that, "[a]nticipating this conclusion, the State argues the statement nonetheless was admissible under the 'present sense impression' exception to the hearsay rule." The court found, however, that it did not need to "address the applicability of this exception" because it was "persuaded by the State's alternate argument that the statement was not prejudicial."
Here's my question: Why did the court even bother to note that it did not need to "address the applicability of this exception"? The implication of such a statement is that it was at least arguable that the exception applied when in fact it clearly did not. As with live testimony, for a statement to come in under an exception to the rule against hearsay, the speaker needs personal knowledge pursuant to Rule 602. By the prosecution's own admission, the person claiming that the defendant was on a "bad crack trip" had no information to suggest that the defendant actually used crack cocaine. Thus, it was clear that the statement did not qualify for admission under Rule 5.803(1) or any exception to the rule against hearsay.
January 22, 2012
Judge Me Not: Court Of Appeals Of Kentucky Finds Problems With Judicial Research, Comment
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
As the recent opinion of the Court of Appeals of Kentucky in Whitlock v. Haney, Sr., 2012 WL 2012 WL 163024 (Ky.App. 2012), makes clear, however, Rule 605 covers not only actual judicial testimony but also improper judicial research and improper judicial comment.In Whitlock, Arthur Whitlock appealed from an order of the Carter Circuit Court granting a directed verdict and dismissing his malicious prosecution claim against Larry Haney, Sr. Specifically, Whitlock claimed that
the trial court considered evidence outside of the record when granting the directed verdict. The trial judge noted that she had been present at the time when the criminal charges against Whitlock were dismissed, and she took exception to the manner in which Haney and his counsel characterized that dismissal. The trial court also noted that Whitlock appeared before the grand jury after the dismissal of his charges. Following that appearance, the grand jury indicted Haney for perjury, but that charge was also dismissed prior to trial. Whitlock contends that these matters were outside of the evidence presented at trial and were therefore not proper for the court to consider.
In response, the Court of Appeals of Arkansas began by noting that "[t]rial courts may take judicial notice of court records of the same court when the records concern the same parties and the same issues." That said, the court then noted that "[t]he trial court's observations about the circumstances about the dismissal of the charges against [Whitlock] are problematic because they implicate the trial judge as a witness. Kentucky Rules of Evidence (KRE) 605." Nonetheless, the court concluded that
while the trial judge noted that her recollection of these events conflicted somewhat with Whitlock's account, the judge stated that her memory confirmed Whitlock's central argument – that the theft charges were dismissed due to lack of evidence. Thus, Whitlock was not prejudiced by the trial court's consideration of this evidence.
The court then found, though, that
On the other hand, the trial court's statements about Whitlock's appearance before the grand jury and the perjury charge against Haney merely involved matters within the court's record. We question whether it was appropriate for the court to speculate about the content of Whitlock's grand jury testimony, since no evidence was entered about that proceeding. The tone of the court's comment suggests, without any foundation, that Whitlock may have given false testimony to the grand jury. Trial courts should avoid such gratuitous speculation. Nevertheless, the trial court's opinion does not suggest that it considered this speculation in its probable cause determination about the charges against Whitlock. Therefore, the inclusion of the comment was, at most, harmless error. On remand, however, we would suggest that the trial court avoid such comments.