EvidenceProf Blog

Subtext: Supreme Court Of Nevada Finds Text Messages Admissible As Excited Utterances In Kidnapping/Battery Case

A professor on the Evidence Professor listserv a few days ago asked about cases considering whether text messages are admissible under the excited utterance exception to the rule against hearsay. One such case is Funches v. State, 2012 WL 436635 (Nev. 2012), which is interesting for a few reasons.

Unfortunately, the Funches opinion doesn't provide much in the way of facts. What we do know is that Anthony Funches was convicted of first-degree kidnapping and battery resulting in substantial bodily harm. After he was convicted, Funches appealed, claiming that the trial court made two errors with regard to text messages.

First, Funches argue[d] that the district court erred by admitting his brother's testimony that he received a text message from another witness stating that Funches and two other people had "jumped" the victim. Funches assert[ed] that this statement, which was admitted as non-hearsay showing the effect of the text message on his brother, was inadmissible hearsay, irrelevant, and highly prejudicial.

The Supreme Court of Nevada agreed but "conclude[d] that the error was harmless in light of Funche''s own admissions that he and his two codefendants kicked and punched the victim." 

Second, Funches contend[ed] that the district court erred by admitting, under the present-sense-impression hearsay exception, a witness's text messages regarding earlier events. 

The court again (partially) agreed, finding that some of the text messages were inadmissible under NRS 51.085, which indicates that

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter, is not inadmissible under the hearsay rule.

According to the court,

The text messages, which were written by the witness shortly after she woke up, involved events that occurred before she went to sleep approximately one to two hours earlier, and thus were not made contemporaneously with the events.

But the court then found that 

The State argues persuasively that the text messages were admissible under the excited utterance exception because the witness's testimony indicated that she was under the stress of the startling event of seeing Funches and his two codefendants changing their bloody clothes after having been outside with the victim.

That excited utterance exception, contained in NRS 51.085, indicates that

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is not inadmissible under the hearsay rule.

And, according to the court,

The State argue[d] persuasively that the text messages were admissible under the excited utterance exception because the witness's testimony indicated that she was under the stress of the startling event of seeing Funches and his two codefendants changing their bloody clothes after having been outside with the victim.

Again, the court's opinion is short on facts, so I am not sure exactly how to read its conclusion? First, did the court find that the witness actually saw the subject battery or just Funches and his two codefendants changing their bloody clothes? Second, what was the startling event? Was it the battery? Was it the changing of bloody clothes? Was the changing of bloody clothes part of the battery for "startling event" purposes, or was it a separate startling event? And, if it was a separate startling event, was the court saying that this separate startling event could retrigger the stress associated with the battery and allow for the text messages to be admissible as excited utterances?

I don't have enough facts to answer any of these questions, but I do agree with the principle that subsequent startling events related to prior startling events can form the basis for the admission of excited utterances. See Colin Miller, A Shock to the System:  Analyzing The Conflict Among Courts Over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences In Rape And Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49 (2005).

-CM

I Rest My Case, Take 4: Court Of Appeals Of Michigan Finds No Problem With Additional Witness After Both Parties Rested

In yesterday's post, I preliminarily endorsed a dichotomy under Rule 614(a). Under this dichotomy, after the parties rested in a criminal case, a judge could call additional witnesses to clarify facts when there had been conflicting testimony/evidence. (e.g., Eyewitness A saw one thing while Eyewitness B saw something else). But, under the same circumstances, the judge could not call additional witnesses to testify on a matter on which there had not been conflicting testimony/evidence. (e.g., Eyewitness A testified that the shooter was 5'9" while Defendant is 6'2", and Eyewitness B, the only other eyewitness, had not been called by either side).

Under this dichotomy, I would agree with the opinion of the Court of Appeals of Michigan in People v. Betts, 400 N.W.2d650 (Mich.App. 1986).

In Betts, Christopher Betts was charged with felonious assault by means of a shotgun and was given a bench trial. 

The complainant went to his brother's house with a wrecker to tow a disabled car away and, after he crawled out from under the car and was hooking up the wrecker, he heard defendant swearing at him and also saw defendant in defendant's doorway on the porch with a shotgun, which was racked and pointed at the complainant.

Defendant testified that the complainant had pulled the tow truck up into his driveway and he believed that the complainant was trying to take what turned out to be the complainant's brother's car. He claimed the complainant swore at him and made what appeared to be a threatening gesture, so he grabbed a shotgun but denied pointing it at the complainant.

After both parties rested, the trial judge indicated that he

wanted to question a witness, Anita Turner, who had earlier been waived by the parties but who had been listed as a res gestae witness. The court allowed the prosecutor to reopen the case because there were two conflicting versions of the testimony and the court did not know what to believe. The case was continued for a few days to allow the witness to be brought in and, at that time, defense counsel objected to the trial court's calling of the witness, stating that both parties had already rested and that the witness was not indorsed on the information. Defendant further claimed complete surprise. The trial court permitted defense counsel to have a recess to talk to the witness if he had not already had the opportunity to do so.

After the recess, Turner 

testified that, on the morning in question, she heard people swearing and looked out the window. She saw two men standing by a tow truck, and the man on the passenger side was talking to someone in front of him, but she could not see who it was. She came downstairs then and went out the door, acting like she was getting the mail. At this point, she saw defendant on the porch with a rifle, so she ran to the telephone to call the police.

After he was convicted, Betts appealed, claiming "that the trial court committed prejudicial and reversible error in calling a res gestae witness after both sides had rested when the court was not convinced beyond a reasonable doubt as to the guilt of the defendant." In response, the Court of Appeals of Michigan noted that "[w]hile our research has not indicated a case exactly like this where both parties had rested, we find a number of earlier cases permitting the trial court to allow reopening of the proofs on the prosecutor's motion for proof of a necessary element omitted from the case-in-chief."

The court then again reiterated that "[w]e have been unable to find any discussion under MRE 614 relative to the issue in this case...." It then weakly concluded that there was no reversible error:

In this case no constitutional question has been properly raised, and the trial judge very carefully indicated that defense counsel should have an opportunity to talk with the witness before the witness testified. The record further indicates that the witness had been indorsed but was waived by both sides, so defendant cannot now claim surprise which denied him a fair trial.

As noted in the introduction, under my proposed dichotomy, this would be the correct ruling, but, looking at the facts of Betts, I'm not so sure that I agree with my prior reasoning. I guess it is time for more research to determine exactly where I stand.

-CM

I Rest My Case, Take 3: Court Of Appeals Of Hawai'i Finds No Problem With Judge Calling Witness After Both Parties Rested

The last few days, I have posted entries (here and here) about judges using Rule 614(a) to call witnesses in a criminal case after both parties have rested. In my first post, I noted that "[g]iven that the prosecution has the burden of proof of every element beyond a reasonable doubt, it would seem to me that this would be fundamentally unfair." In my second post, I repeated this concern, "speculati[ng] that judges would principally if not exclusively use this power in this situation to try to erase reasonable doubt rather than to try to create reasonable doubt." It seems that defense counsel in State v. Medeiros, 909 P.2d 579 (Hawai'i App 1995), raised a similar concern. So, how did he fair?

Medeiros was a bench trial in which Alexander Medeiros was found guilty in a jury-waived trial of Driving Under the Influence of Intoxicating Liquor. Similar to one of the cases in  yesterday's post, after each party had rested, there was a question about whether Medeiros was the driver of the subject vehicle. Before this point,  Sergeants William Watkins and Mark Kajiwara were not called by either side. Additionally, neither side had called John Matthews, whom Medeiros had claimed was driving the subject vehicle.

After both sides rested,

the court informed both counsel that it wanted Matthews and the two sergeants called as witnesses. The court stated:

This is a little unusual but this is what I'm gonna [sic] do, folks. I'm going to further this, and I'm going to call some additional witnesses in this matter. I want Sergeant Watkins, and I want Sergeant Kajiwara to testify in this case. And, given the information that we have from Miss Cornelius, I'd like, actually either one or both of you may do it, I think you ought to make an effort to find John [Matthews] through Mike [Matthews' roommate], who works at Tow Masters.

In response,

The defense questioned the court's purpose in calling the additional witnesses, pointing out that the State had the burden of proof in the case:

[Defense counsel]: I'd like the Court to state for the record, Your Honor, why the-the Court is going to be calling two additional witnesses. It's the State's burden to prove beyond a reasonable doubt that [Defendant] was the operator of the vehicle.

Subsequently,

The court replied, “Believe me, I'm doing it in your client's interest.” The court relied on Hawai‘i Rules of Evidence (HRE) 614:

I wouldn't normally [call witnesses] in a DUI case, but I want to know. And that's what [HRE] Rule 614 gives me the option to do. I want to find out. At this point all I can tell you is the officers sound very credible and I want to explore it as best I can. And I think at this point it is only in the defendant's interest that I do that.

The court then granted a continuance, after which both sides indicated that they could not locate Matthews and that the sergeants were both on sick leave. In response,

The court indicated, "Although I know it is an inconvenience to [Defendant], I'm inclined to continue it one more time. Believe me, it's in [Defendant's] interest to do that." Defense counsel objected to the continuance, stating, "we've rested and we're prepared to argue. It seems, Your Honor, since the Court has ordered new witnesses, that the Court has some doubt about whether [Defendant] was the driver. We're prepared to argue on that basis." The court refused, expressing its desire to hear from "one or both of the sergeants[.]" 

After another continuance,

The court overruled the defense's objection to the court calling the officers as witnesses:

[Defense counsel]: The State and the Defense have rested their cases,...[and] both the State and Defense have told the Court that they were prepared to argue the case. Uh, the Court does have the right to ask for further witnesses for clarification purposes. We're not challenging that per se. But we do feel that the Court is somewhat...changing hats to some degree in terms of the State. [The] State has the burden to produce the evidence..., and the State did not call these witnesses.... 

THE COURT: Under [HRE Rule] 614 I'm entitled to call witnesses given the diametrically opposed testimony regarding what was said in front of the sergeants on the scene. I want to hear what they have to say, so I'll overrule your objection, and I'll note categorically this is not meant to bolster the State's case at this point.

But, of course, bolster the State's case is exactly what the testimony of the Sergeant's did as they seemingly erased any reasonable doubt that the judge had and allowed him to find Medeiros guilty of the crime charged. Specifically, Medeiros alleged that he told both Sergeants that he was not the drive of the subject vehicle while both officer testified to the contrary.

After he was convicted, Medeiros appealed, repeating his argument that it was improper for the court to call these two witnesses after both parties had rested. The Court of Appeals of Hawai'i disagreed, concluding that

In this particular case, we do not believe that the calling of the two sergeants as witnesses necessarily benefited the State's case. The State was not obligated to call these witnesses. Their testimonies were not essential to establish prima facie evidence of the elements of the offense. The sergeants did not provide evidence that had not already been established by the State's witnesses in the main trial. The sergeants were called because Defendant testified he informed the sergeants he was not the driver of his vehicle. Their answers could have supported Defendant's claim. Under the circumstances, we cannot say that the court acted in a partial manner and, thus, abused its authority in calling the witnesses pursuant to HRE Rule 614.

Again, I take issue with the actions of the court. I think that defense counsel perfectly laid out the dichotomy that should exist under Rule 614(a) when the judge seeks to call a witness in a criminal case after both sides have rested. If the judge is simply calling the witness for purposes of clarification, Rule 614(a) should allow the witness to be called. Imagine, for instance, that a shooting takes place at a restaurant, and various eyewitnesses give confusing and conflicting testimony about the layout of the restaurant. The court could very well call the restaurant's owner to resolve this uncertainty.

On the other hand, if the judge is simply calling a witness to erase a lingering reasonable doubt, Rule 614(a) should not allow the witness to be called. This was seemingly the case in Medeiros. In Medeiros, it wasn't a case where Medeiros claimed that he said one thing, another witness claimed that he said something slightly different, and the court called a third witness to resolve the ambiguity. Instead, Medeiros claimed that he told the Sergeants that he did not drive the subject vehicle. And the judge, despite claiming that he was calling the Sergeants to help the defendant, called the Sergeants so that they could refute his claim and erase any reasonable doubt. 

-CM

I Rest My Case, Take 2: Two West Virginia Cases On Judges Calling Witnesses After Both Sides Have Rested

In yesterday's post, I noted that I wasn't all that thrilled with the idea of a judge being able to use his Rule 614(a) powers to call witnesses after both the prosecution and defense had rested in a criminal case. A big reason for this was my speculation that judges would principally if not exclusively use this power in this situation to try to erase reasonable doubt rather than to try to create reasonable doubt. I still have no idea about whether this is true, but, in this post, I will present two West Virginia cases where this scenario seemed to play out. In one case, a guilty verdict was upheld. In the other, it was thrown out.

The first of these cases was State v. Loveless, 534 S.E.2d 23 (W.Va. 1955). In Loveless, Melvin Loveless was charged with being an accessory before the fact to murder in first degree. Eugene Sherman and James Jones were also allegedly involved in the murder, and,

After the state and the defense had rested, the prosecuting attorney stated that Sherman and Jones, during their confinement in the state penitentiary at Moundsville, had made contradictory statements, and in view of those statements he, acting for the state, did not intend to use them as witnesses. He also stated that he thought perhaps the defense would put them on the stand, and suggested to the court that the jury would want to hear those two witnesses. Thereupon, the court called Sherman as the court's witness and interrogated him at length, propounding at least 131 questions to the witness. He likewise called Jones as a witness and propounded approximately 172 questions to him. After the court had completed the examination in chief of these two witnesses, the right to cross examine them was accorded to the state and the defendant.

After he was convicted, Loveless appealed, and the Supreme Court of West Virginia reversed, finding, inter alia, that

The witnesses were called after the state and the defense had rested their cases. The introduction of these two witnesses at this stage of the trial was untimely and constitutes another valid objection to the action of the trial court. These witnesses should have been called before the state or the defense had concluded the introduction of testimony to sustains ths issue on their respective parts. This record discloses that the trial judge, though having a right to call Sherman and Jones as witnesses, should not have examined them to the extent he did and in the manner he did. Nor should such witnesses and their testimony been used after the state and the defense had rested their case. Such action of the trial court constitutes reversible error.

To me, that seems like a pretty clear statement that judges cannot call witnesses after the defense and the prosecution have rested. Sure, the court also took issue with the breadth and depth of the judge's interrogation of these two witnesses, but it seems to me that the court found that the timing of the questioning was an independent ground for reversal. But in its subsequent opinion in State v. Parr, 534 S.E.2d 23 (W.Va. 2000), the West Virginia Supremes did not take such a hard line approach.

In Parr, Jason Parr was charged with possession with intent to deliver a controlled substance. Specifically, "[o]n the afternoon of October 1, 1998, a confidential informant advised Deputy Michael Brooks that “one of the Parr twins” was selling drugs on McDowell Street in Welch, West Virginia." Deputy Brooks thereafter arrested one of the Parr brothers but, by his admission, did not know which Parr brother he had arrested.

But it was Jason who was prosecuted, with the prosecution not calling Jason's brother, Mark, to testify that he was not the one who was arrested. So, after the prosecution and the defense rested, the judge called to Mark "to establish from Mark that he was not the person arrested by Deputy Brooks and that he did not switch places with" his brother. 

After he was convicted, Parr appealed, claiming, inter alia, that pursuant to Loveless the judge could not call Mark after both sides had rested. The Supreme Court of West Virginia disagreed, concluding that

The decision in Loveless does not preclude trial courts from calling witnesses after the State or defendant has rested. As was noted by Professor Cleckley in his interpretation of Loveless, calling a witness by the trial court "after the parties have rested must be sparingly used." Franklin D. Cleckley, Vol. 1, Handbook on Evidence for West Virginia Lawyers § 6–14(D) (1994). We have previously noted that "[a] trial judge in a criminal case has a right to control the orderly process of a trial and may intervene into the trial process for such purpose, so long as such intervention does not operate to prejudice the defendant's case." Syl. pt. 4, in part, State v. Burton, 163 W.Va. 40, 254 S.E.2d 129 (1979).  

In the instant proceeding, the trial court stated on the record that Mark was called by the court because it "was necessary and appropriate in the interest of justice in this case[.]" Based upon the questioning of Mark, it is clear to this Court that the trial court sought to establish from Mark that he was not the person arrested by Deputy Brooks and that he did not switch places with Mr. Parr. Mark testified that he was not the person arrested by Deputy Brooks. While this Court will not encourage or permit trial court's to routinely call witnesses after the State has rested, we will not impose a blanket prohibition against calling witnesses under such circumstances. See Capital Marine Supply, Inc. v. M/V Roland Thomas, II, 719 F.2d 104, 107 (5th Cir.1983) (finding no error in a situation where the district court called a witness on its own motion after the party had rested its case); State v. Johnson, 183 Ariz. 623, 635, 905 P.2d 1002, 1014 (1995) (allowing trial court to call witness after both parties rested); Syl. pt. 1, State v. Medeiros, 80 Hawai‘i 251, 909 P.2d 579 (1995) ("It is within the trial court's discretion to decide to call its own witnesses after the parties have rested in a criminal case."). People v. Betts, 155 Mich.App. 478, 482, 400 N.W.2d 650, 652 (1986) (permitting trial court to call witness after both parties rested).

I'm not sure that I agree with the court's interpretation of Loveless, but let's put that issue aside for a second. According to the court in Loveless, (1) judges should sparingly call witnesses after the parties have rested; and (2) the calling of such witnesses must not operate to prejudice the defendant's case. Didn't the judge's calling of Mark prejudice Jason's case? Wasn't the judge calling Mark because there was ostensibly reasonable doubt about whether Jason committed the crime and was the person arrested? The judge wasn't simply seeking further clarity; he was seeking to assist the prosecution in erasing reasonable doubt.

-CM

I Rest My Case: Arkansas Judge Calls For Additional Witnesses After Both Sides Have Rested In Child Custody Case

Similar to its federal counterpart, Arkansas Rule of Evidence 614(a) provides that

The court, at the suggestion of a party or on its own motion, may call witnesses, and all parties are entitled to cross-examine witnesses thus called.  

The recent opinion of the Court of Appeals of Arkansas in Cowan v. Arkansas Dept. of Human Services, 2012 Ark. App. 576 (Ark.App. 2012), raises an interesting issue under Rule 614(a): Should the court be able to call additional witnesses after all parties have rested their respective cases?

In Cowan, James and Pauline Cowan appealed from the order of the Craighead County Circuit Court dismissing their petition to adopt seven-year-old E.C. At the conclusion of the hearing on the Cowans' petition to adopt E.C.,

the circuit court stated that it faced a difficult decision and that it was concerned about the lack of direct evidence concerning the allegations from E.C.'s prior school that had been noted in the petition for emergency custody. The court found that the hearing should be continued until January 2012 so that the parties could procure witnesses from the school that had first-hand knowledge of E.C.'s situation when she lived with the Cowans. The court also ruled that the parties would be able to cross-examine these additional witnesses and to call rebuttal witnesses if they desired. The Cowans strenuously objected to the court's ruling, arguing that both parties had rested and that the court did not have the authority to call for additional evidence. The court overruled the objection, stating that it did have the authority to do so under the plain language of Ark. R. Evid. 614 and that the additional evidence was necessary for the court to decide what was in E.C.'s best interest in this case. Although the court admitted that it did not have knowledge of the specific witnesses that should be called, it suggested that the principal of the school would be a good place to start.

After the circuit court denied the Cowans' petition to adopt E.C., the Cowans appealed, claiming, inter alia, that the court could not call witnesses after both parties had rested their cases. The Court of Appeals of Arkansas disagreed, finding that

the Cowans...cite no authority for their contention that Rule 614 is not applicable where the parties have rested their cases. In fact, in one of the cases cited in their brief, Hillard v. State, 321 Ark. 39, 900 S.W.2d 167 (1995), our supreme court noted that a case-in-chief may be reopened for the taking of additional evidence and that such a matter is committed to the discretion of the trial court. Further, in Jordan v. Guinn, 253 Ark. 315, 485 S.W.2d 715 (1972), the court stated that the reasons for restraint upon the trial judge are minimal where the judge is the trier of fact and that his responsibilities for elicitation of all pertinent facts are increased. Thus, the trial judge has "the right and the duty to ask questions to clear up an obscurity in the testimony or even to develop facts in regard to some feature of the case he feels has not been properly developed."... properly developed."...

The court then concluded that

This was precisely the circuit court's concern in this case, as it had not heard any testimony from witnesses with first-hand knowledge of the allegations made in the FINS petition. As the court noted in response to the Cowans' objections at the hearing, its ruling would have been different had the case been one for dependency-neglect, where DHS has the burden of proof. In that situation, the court stated that it would have dismissed DHS's case for insufficient evidence. However, this case involved the adoption of E.C., and the overriding concern of the circuit court in such cases is determining what is in the best interest of the child....Thus, it was well within the circuit court's discretion to request that additional evidence be submitted.

Given that Cowan was a child custody case, I don't have a problem with the court's conclusion. I am, however, confused by the court's citation to Hillard v. State. In Hillard, the court pointed out that a court may allow the prosecution to re-open its case-in-chief after the prosecution has rested. The court, however, did not say that the judge may call witnesses for the prosecution after the prosecution has rested. Indeed, this would make no sense because the judge calls his own witnesses under Rule 614 and cannot call witnesses for the prosecution or witnesses for the defense. 

So, should a judge be allowed to call witnesses after the prosecution in a criminal case has rested or after both the prosecution and the defense have rested in a criminal case? Given that the prosecution has the burden of proof of every element beyond a reasonable doubt, it would seem to me that this would be fundamentally unfair. I suppose there are cases in which there is not reasonable doubt and in which the court could call witnesses who would establish reasonable doubt. But I would think that in the overwhelming majority of cases, the court would call witnesses under these circumstances because of a lingering reasonable doubt.

-CM

Class Act?: 9th Circuit Finds Plaintiff With 10+ Year Old Convictions & False Names An Adequate Class Representative

A group of plaintiffs seek provisional class certification for a class action against a defendant, claiming that its debt collection efforts violated the Telephone Consumer Protection Act, 47 U.S.C. § 227. The defendant opposes class certification, claiming, inter alia, that one of the class representatives will not "fairly and adequately protect the interests of the class," as required by Federal Rule of Civil Procedure 23(a)(4). Why? The representative had two 10+ year old prior convictions for dishonesty and had used multiple names in the past. According to the Ninth Circuit in Meyer v. Portfolio Recovery Associates, LLC, 2012 WL 4840814 (9th Cir. 2012), however, these facts were not fatal to the individual being provisionally deemed an adequate class representative.

In Meyer, the facts were as stated above. I'm not sure about the exact facts of Meyer, but I'm assuming that a big issue at trial would be whether the class members did in fact receive phone calls from the defendant that violated the Telephone Consumer Protection Act. In other words, the credibility of the class representatives would have at least some importance to the outcome at trial.

So, what role would the representative's past have in that outcome? Here is the Ninth Circuit's discussion of the issue:

PRA also argues that Meyer failed to satisfy the requirements of FRCP 23(a) because Meyer was not an adequate class representative due to convictions for offenses involving dishonesty and because he has used multiple names in the past. PRA argues that the district court did not analyze Meyer's personal credibility and integrity. We conclude the district court acted within its discretion when it provisionally decided Meyer was an adequate class representative. The district court did consider PRA's argument that Meyer's criminal record included convictions for deceptive conduct, but it also considered that Meyer's convictions were from 1998 and 2001, more than 10 years ago,[FN2] and that Meyer had since taken positive steps in his life, including his graduation from the University of California. On this record we cannot say the district court abused its discretion by accepting Meyer as a provisional class representative.

[FN2] See Fed.R.Evid. 609(b).

Hmmm....let's start with the fact that Meyer used multiple names in the past. Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

I think that Meyer's use of multiple names in the past has strong bearing on his character for untruthfulness, so I think that there's a decent chance that it could be raised during cross-examination when Meyer is on the witness stand.

Next, let's look at Meyer's convictions. It looks like one is about 14 years old and the other is about 11 years old. Federal Rule of Evidence 609(b) states that

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.

So, would the probative value of either or both of Meyer's prior convictions substantially outweigh their prejudicial effect? I don't know. The Ninth Circuit doesn't list the crime of conviction for either, but it does not that they are "convictions for crimes of honesty...." That means that the nature of both crimes should strongly favor admission. 

The crimes are 10+ years old, which favors exclusion, but one of them is just outside the 10 year window, and the fact that Meyer is a repeat offender who has also used false names means that remoteness isn't as much of a concern as usual. 

I doubt that Meyer's prior convictions are similar at all to the allegations of the class action, meaning that there would be little concern that the prior convictions would be misused as propensity character evidence. As noted above, Meyer's credibility will likely be pretty important to the class action, which both favors and disfavors admission.

Overall, it seems to me that defense counsel would have a decent argument for admitting at least one of Meyer's prior convictions. Given this, was Meyer an adequate class representative?

-CM

Did You Notice That?: Court Of Criminal Appeals Of Tennessee Finds Defendant Failed to Comply With Rule 609(b)'s Notice Requirement

Similar to its federal counterpart, Tennessee Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

While the defendant in State v. Raymer, 2012 WL 4841544 (Tenn.Crim.App. 2012), likely could not have used the victim's 10+ year-old drug conviction to impeach him even if he complied with Rule 609(b)'s notice requirement, his failure to comply made that likelihood an inevitability.

In Raymer, Bobby Raymer was convicted of one count of especially aggravated kidnapping and one count of aggravated robbery. Raymer's alleged victim was Tony Singleton, and Singleton had the following criminal history:

(1) Misdemeanor assault, 1984;

(2) Misdemeanor resisting arrest, 1989;

(3) Felony drug conviction, 1995;

(4) Misdemeanor drug conviction, 2005; and

(5) Misdemeanor drug conviction, 2010.

The trial court precluded Raymer from using any of these convictions to impeach Singleton, and this ruling formed the partial basis for Raymer's appeal.

In addressing Raymer's appeal, the court was easily able to conclude that Singleton's four misdemeanor convictions were inadmissible because they were neither felony convictions not convictions for crimes involving dishonesty of false statement. And while the court strongly hinted that Singleton's 1995 felony drug conviction was inadmissible under the Rule 609(b) balancing test, it also found an independent reason why it was inadmissible: Raymer only gave notice of his intent to use it the day before trial, meaning that he "failed to comply with the requirements of Rule 609(b) by failing to give [advance] notice of intent to use the convictions as impeachment evidence."

-CM