December 8, 2012
Tell Me Lies: Can The Admission Of Lies Ever Implicate The Confrontation Clause?
I was talking to Derek Black yesterday when he raised an interesting question: Can the admission of a declarant's lie ever violate the Confrontation Clause of the Sixth Amendment? My initial thought was that the answer had to be "no." First, the Confrontation Clause is only implicated by the admission of statements offered to prove the truth of the matter asserted, and a lie seemingly would not be offered to prove the truth of the matter asserted. Second, for a statement to be "testimonial" and thus trigger the Confrontation Clause, the declarant must have some expectation or awareness that "his or her statements may later be used at a trial." I'm not sure that a liar would ever have this expectation. That said, I'm not entirely sure about these conclusions, so let's look at the opinion of the Court of Appeals of Arizona, Division 1, Department C, in State v. Valdez, 2007 WL 5248976 (Ariz.App. Div. 1 2007), which dealt with a factual context similar to the context that Derek mentioned.
In Valdez, James Valdez was indicted in November 2005 on one count of burglary in the first degree and two counts of armed robbery arising from invasion of a house in the vicinity of 75th Avenue and Meadowbrook in Phoenix on June 9, 2005. A neighbor who observed the burglary called 911, prompting the police to pull over two vehicles, one of which contained Valdez. Three of the individuals in these vehicles, including Valdez, gave conflicting accounts of what they were doing, and each of these accounts was demonstrably false.
Before trial, Valdez sought to preclude the prosecution from introducing the statements of the other two individuals, claiming that the prosecution did not seek to call them at trial and that the admission of their statements would violate the Confrontation Clause. The court granted Valdez's motion, finding that
The Court does not find relevant the State's proffer of declarants' statements being false as providing a more or less probable [sic] that Mr. Valdez is guilty of the crime charged....
Separately, pursuant to 403, the Court finds that the State's proffer of presenting declarants' statements, disproving their truth, would lead to confusion of the issues for the jury.
Third ground, State is making an affirmative use of an out-of-court declarant, the Court finds would implicate Crawford.
The State thereafter appealed, claiming that
[O]ne of the inferences the jury can and ought to draw is when you have three people who are all in the same vehicle, all three of them, the defendant included, have had different stories than each other, and all three of them can be proven false, the rational inference is they are-are lying to cover up something, and then the rest of the evidence shows what it is they are covering up.
That's basically part of the reason why the State is going to be introducing those statements, to prove falsity and to show none of them had a rational explanation and, therefore, the only rational explanation that remains is the State's theory of the case.
The appellate court disagreed, concluding that
We find this argument unpersuasive on both logical and factual grounds. As the court suggested in its questioning of the State, evidence that a person (Hollingsworth) sitting in the same vehicle as Valdez, and another person (Mavis) sitting in a second vehicle believed to be connected to the first, told different lies as to their whereabouts that night, without more, has little or no tendency to show that Valdez lied to cover up the instant crime. Had Hollingsworth, Mavis, and Valdez all offered the identical false alibi, or had the State offered some evidence of collusion in concocting an alibi, the potential relevancy might be greater.... In the absence of more evidence in the State's proffer that would link the alleged accomplices' lies to Valdez's guilt, however, we cannot say that the court abused its discretion in precluding this evidence on grounds it lacked relevance.
Based upon this conclusion, the appellate court did not need to "reach the issue whether these statements would also be barred by the Confrontation Clause as interpreted by Crawford v. Washington, 541 U.S. 36 (2004)."
So, what if the three mean had offered the identical false alibi? In that case, would the court have found the statements relevant, and, if so, would the court have found that the Confrontation Clause precluded their admission?
It seems that the answer is "yes." Here are a smattering of statements by courts:
-"Giles's explanation for the money was not introduced for the truth of the matter asserted, but to show that he was lying. See United States v. Hathaway, 798 F.2d 902, 905 (6th Cir.1986) (statement offered to prove the falsity of the matter asserted not hearsay). Such statements are not hearsay and do not implicate the confrontation clause." United States v. Brown, 560 F.3d 754, 765 (8th Cir. 2009);
-"These statements were admitted to show, through subsequent testimony, that Grenier and Pierce were lying about their activities. They were not offered 'to prove the truth of the matter asserted.'" United States v. Munson, 819 F.2d 337, 340 (1st Cir. 1987);
-"The obvious question that arises in the present case, then, is whether the out-of-court statements of Tomblin and Browning were hearsay. We think it plain they were not. Out-of-court statements constitute hearsay only when offered in evidence to prove the truth of the matter asserted. The election contest testimony of Tomblin and Browning, however, was not admitted into evidence in the s 241 trial to prove the truth of anything asserted therein. Quite the contrary, the point of the prosecutor's introducing those statements was simply to prove that the statements were made so as to establish a foundation for later showing, through other admissible evidence, that they were false. The rationale of the hearsay rule is inapplicable as well. The primary justification for the exclusion of hearsay is the lack of any opportunity for the adversary to cross-examine the absent declarant whose out-of-court statement is introduced into evidence. Here, since the prosecution was not contending that anything Tomblin or Browning said at the election contest was true, the other defendants had no interest in cross-examining them so as to put their credibility in issue." Anderson v. United States, 417 U.S. 211, 220 (1974).
December 7, 2012
Certificate Of Completion: Court Of Appeals Of Ohio Finds Uncertified Court Documents Not Self-Authenticating
A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio.
Because such a record or report is self-authenticating, "[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required..." But, if such a record or report is not accompanied by the requisite certification, it is not self-authenticating under Rule 902(4), which was the problem for the appellee in Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 2012 WL 6033142 (Ohio App. 9 Dist. 2012).In Emerson Tool,
Emerson [Family Ltd.} filed a complaint against Ohio Knife, alleging that Emerson Tool Company, LLC, now known as Ohio Knife, had converted certain pieces of equipment. Specifically, it alleged that Ohio Knife's predecessor had leased the equipment from Emerson in 2000 and failed to return it when the lease expired in 2007.
Ohio Knife thereafter moved for summary judgment dismissing the complaint, and the trial court granted the motion. Emerson Family Ltd. thereafter appealed, claiming that the trial court improperly relied upon unsworn and uncertified documents that, on their face, purported to be journal entries and other filings from various courts.
Ohio Knife responded that the documents were self-authenticating under Ohio Rule of Evidence 902(4), but the court of appeals disagreed, concluding that
Although public records require no extrinsic evidence of authenticity if properly certified, none of these records bore any certification. Evid.R. 902(4) Evid.R. 902(4). Even if the attorney had personal knowledge about where he received the documents and received them directly from the keeper of those records, an attestation to that effect does not serve to authenticate them....Documents can be certified as correct only by "the custodian of the document or another individual with personal knowledge that the document is what its proponent purports it to be."
December 6, 2012
Not Out Of Print: 5th Circuit Finds Fingerprint Card Is Self-Authenticating
Federal Rule of Evidence 902 provides that
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted....
One such self-authenticating item is covered by Federal Rule of Evidence 902(4):
Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
So, can a fingerprint card qualify as a self-authenticating document under Federal Rule of Evidence 902(4)? According to the recent opinion of the Fifth Circuit in United States v. Ibarra, 2012 WL 5985099 (5th Cir. 2012), the answer is "yes."
In Ibarra, Ruben Ibarra was convicted by a jury of one count of unlawfully possessing a firearm as a previously convicted felon. After he was convicted, Ibarra appealed, claiming, inter alia, "that the district court improperly admitted a fingerprint card that was attached to a state court felony judgment." The Fifth Circuit disagreed, finding that
Ibarra's argument is flatly contradicted by the trial record. Here, the Government offered into evidence a certified copy of a Judgment of Conviction and Sentence issued against "Ruben Ibarra" on January 6, 2009, in the 406th Judicial District Court of Webb County, Texas, Cause No.2008CRD000629–D4. Attached to the state judgment was a copy of a document bearing the same caption and date as that judgment and containing a full set of fingerprints of the defendant in that case. The fingerprints were taken by a court bailiff in accordance with the Texas statute requiring that a judgment reflect the defendant's thumbprint.
The court then found that this fingerprint card was authenticated through
the testimony of a deputy clerk for the District Clerk's Office of Webb County. According to the deputy clerk, who testified as custodian of records for that office and the courts that it serves, the judgment—including the fingerprint card—was the certified copy of conviction kept by the Clerk's Office in the regular course of business. Based on the foregoing testimony, it is evident that the challenged fingerprint card is self-authenticating, and thus the district court did not abuse its discretion in admitting the card. See FED.R.EVID. 902(4)....
Alternatively, the court found that
Even if the fingerprint card arguably is not self-authenticating, the district court did not abuse its discretion in admitting the card into evidence, because it also qualifies as a "public record" admissible under Rule 901(b)(7) of the Federal Rules of Evidence.
December 5, 2012
Avoiding A Confrontation: Why Don't Courts Find Nontestimonial Co-Defendant Statements Inadmissible Under Rule 403?
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a nontestifying co-defendant's statement that facially incriminates another defendant. As I have written on numerous occasions, however, in the wake of the Supreme Court's opinion in Crawford v. Washington, courts have nearly categorically concluded that nontestimonial hearsay is beyond the scope of the Bruton doctrine. In my article, Avoiding a Confrontation, I argued against such conclusions, but I recognize that courts are unlikely to adopt my reasoning any time soon. Recognizing this, I also argued in the article the courts faced with this problem should simply declare the co-defendant's statement inadmissible under Federal Rule of Evidence 403 and state counterparts. Let's take a look at the opinion of the United States v. Caroni, 2011 WL 5184194 (N.D.Fla. 2011), which I think supports my argument.
In Caroni, an "indictment charge[f] that from January 2004 through February 2008, [Dennis] Caroni, Dr. Dileo, Theodore G. Aufdemorte, and Dr. Joseph George Pastorek, II, conspired to unlawfully dispense controlled substances as purported pain management treatment through 'their clinics in Metairie and Covington, Louisiana, and Pensacola, Florida....'" Thereafter, Dr. Dileo entered into a Consent Order with the Louisiana State Board of Medical Examiners that allegedly incriminated Caroni.
Caroni thereafter moved to sever, and the Northern District of Florida denied his motion. In denying the motion, the court questioned whether the Consent Order would be admissible at trial in the even that Dr. Dileo did not testify because it did not referenced Caroni by name. But then the court held that
Even assuming the Consent Order does not sufficiently compel an inference of guilt contrary to the principles of Bruton and the Confrontation Clause, it is inadmissible hearsay as to both Caroni and Pastorek and its prejudicial value must be closely examined. On reconsideration, the court concludes that admitting the Consent Order against Dileo presents a danger of unfair prejudice to Caroni in light of the evidence now in the record, and discussed above, which substantially outweighs the probative value of this evidence. "[R]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury...." Fed.R.Evid. 403....The Consent Order was entered in March 2008 and the conspiracy alleged in the indictment concluded in February 2008; therefore, it cannot be used against Caroni as proof of knowledge or willfulness, notice of wrongdoing, or proof of an agreement, and a cautionary instruction to this effect would be necessary. On this record, however, the court finds that the danger of confusion and unfair prejudice would limit the effectiveness of a cautionary instruction because the object of the conspiracy alleged is the very act that Dileo, by signing the LSBME Consent Order, admitted could be shown from his own prescribing practices. Also, the evidence now indicates that Dileo and Caroni both were involved in operating the clinics. While civil medical standards may be relevant, there is a danger in this instance that the jury will rely on the Consent Order and investigation of the LSBME, a civil licensing board, to impermissibly draw an inference of Caroni's criminal guilt. Also, the fact that the government seeks to use a willful blindness instruction gives rise to a concern that the jury will impermissibly consider the Consent Order as proof of notice to Caroni because of the government's theory that Dileo and Caroni both were de facto operators of the clinics. Therefore, even if the evidence is insufficient to compel an inference of guilt in violation of the Confrontation Clause, the court finds that the probative value of the Consent Order is substantially outweighed by the danger of unfair prejudice to Caroni.
I agree and think that the same conclusion should hold in cases involving nontestimonial hearsay. If Carl says to his sister, "Dan and I robbed his bank," the statement is inadmissible against Dan and thus has no probative value in the case against him. Moreover, the whole point of the Bruton doctrine is that, unlike in most cases, courts don't trust jurors to honor limiting instructions regarding co-defendant confessions in joint jury trials, resulting in a devastating practical effect on the cases of defendants like Dan. And, if we look at the Advisory Committee's Note to Federal Rule of Evidence 403, it tells us that "[i]n reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction."
Thus, isn't a co-defendant confession case the classic case in which Federal Rule of Evidence 403 should apply to exclude the confession? In my mind, this makes the testimonial/nontestimonial dichotomy somewhat irrelevant. Sure, nontestimonial hearsay might be beyond the scope of the Bruton doctrine, meaning that there is no Confrontation Clause issue. But such a classification should make no difference with regard to the application of Federal Rule of Evidence 403. And yet, in the numerous Bruton doctrine involving nontestimonial hearsay in the wake of Crawford, I haven't seen a single reference to the Rule.
December 4, 2012
To Everyone's Benefit: Rethinking The Positive & Negative Components Of Forfeiture By Wrongdoing
A few days ago, I posted an entry about the negative component of forfeiture by wrongdoing and why I think it tends to show that courts should apply an intent + causation test for forfeiture rather than an intent + causation + benefit test for forfeiture that relies upon counter-factual thinking. Upon further reflection, however, the situation appears a good deal more complicated than I first thought. The topic of this post will be the following two situations: In situation one, Dan is charged with murdering Vince, and William confesses to Fred that he murdered Vince. When William is later called to the police station, he denies murdering Vince and says that it was Dan who murdered Vince. Dan then kills William. In situation two, Dan is charged with murdering Vince. Immediately after the shooting, which took place in an alley, WIlliam runs out from the alley and shouts to Bill, "Oh my God! Carl just shot Vince!" When William is later called to the police station, he says, "I made a mistake. Carl looks a lot like Dan. But it was actually Dan who shot Vince." Again, Dan then kills William. How does the negative component of forfeiture by wrongdoing apply in these two situations?
Federal Rule of Evidence 804(a) sets forth situations in which a declarant is "unavailable" as a witness. In turn, Federal Rule of Evidence 804(b) contains several exceptions to the rule against hearsay that are dependent on the declarant being "unavailable" at trial. The last paragraph of Federal Rule of Evidence 804(a), however, provides that
this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying.
So, what this means is that in situation one, even though William is "unavailable" and his statement would otherwise qualify for admission under Federal Rule of Evidence 804(b)(3), Dan cannot introduce William's statement because he intentionally caused William's "unavailability." Therefore, William is not "unavailable" for purposes of Dan introducing his statement. In other words, based upon his purpose-drive wrongdoing, Dan has forfeited his ability to rely on the hearsay exceptions contained in Federal Rule of Evidence 804(b).
In my prior post, I gave the example of a slightly different situation to explain why I think that forfeiture by wrongdoing should not require counter-factual thinking and only apply if the defendant would have benefited from his wrongdoing. In this hypothetical, Dan thinks that William was going to change his tune about the murder, but he is wrong. WIlliam confessed to the crime and was going to invoke his Fifth Amendment privilege against self-incrimination. But Dan killed him because he thought WIlliam was going to change his tune. The way I see it, the last paragraph of Federal Rule of Evidence 804(a) should apply even though Dan would not have benefited from his wrongdoing because he intended to render William unavailable to testify at trial and caused him to be unavailable.
But now, let's look at situation two. In this situation, William's initial statement likely qualifies as an excited utterance under Federal Rule of Evidence 803(2). And, despite Dan's wrongdoing, he will be able to introduce William's excited utterance at trial. All the last paragraph of Federal Rule of Evidence 804(a) does is prevent William from being declared "unavailable" for purposes of Dan introducing his statement. But because Rule 803(2) does not depend on William being unavailable, there is nothing to prevent Dan from introducing the statement.
Now, under my intent + causation theory of forfeiture by wrongdoing, this doesn't make sense. Dan intended to render WIlliam unavailable at trial, and his wrongdoing caused him to be unavailable. Doesn't this mean that Dan should be deemed to have forfeited his ability to introduce William's excited utterance?Conversely, under an intent + causation + benefit theory with counter-factual thinking, this does make sense. William's excited utterance would have been admissible even in the absence of Dan's wrongdoing, so there is no need to preclude Dan from introducing William's statement because Dan is not otherwise benefiting from his wrongdoing.
All of this has left me pretty confused. Should we think about the positive and negative components of forfeiture by wrongdoing in the same way? Does it make sense for wrongdoing parties to be able to use Federal Rule of Evidence 803 to admit the statements of witnesses that they intentionally caused to be unavailable? I'm not sure.
December 3, 2012
My New Essay: Beware of the Diamond Dogs: Why a “Credentials Alone” Conception of Probable Cause Violates the Compulsory Process Clause
Back in September, I posted an entry about the amici brief submitted by Leslie Shoebotham, an Associate Professor at the Loyola University New Orleans College of Law, in Harris v. State, 71 So.3d 756 (Fla. 2011). See Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, 2012 WL 3864280 (2012) [Download Harris Amici Brief]. The issue in Harris is whether a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. The State argues that the question should be answered in the affirmative pursuant to a "credentials alone" conception of probable cause. Professor Shoebotham argues against this "credentials alone" approach in her brief, which will be published in the Loyola University New Orleans Journal of Public Interest Law. She asked me to submit a companion essay to the blog, and I have just posted the first draft of that essay on SSRN. That essay is Beware of the Diamond Dogs: Why a “Credentials Alone” Conception of Probable Cause Violates the Compulsory Process Clause, and here is its abstract:
In Florida v. Harris, the State has asked the Supreme Court to find that a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. This essay, to be published in conjunction with Leslie Shoebotham's amici brief in Harris, argues that this "credentials alone" conception of probable cause violates the Compulsory Process Clause.
December 2, 2012
Of Such A Character: Court Of Appeals Of The Armed Forces Implies Charged Conduct Can Be Used As Propensity Character Evidence Under Rule 413
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.
So, does this mean that if a defense is charged with two offenses of sexual assault, evidence of one of the acts of sexual assault is admissible to prove his propensity to commit sexual assault and his likely conformity with that propensity at the time of the second sexual assault (and vice versa)? According to the opinion of the United States Court of Appeals for the Armed Forces in United States v. Burton, 67 M.J. 150 (U.S. Armed Forces 2009), the answer appears to be "yes."In Burton,
A general court-martial composed of officer and enlisted members convicted Appellant, contrary to his pleas, of rape, sodomy, and indecent acts, in violation of Articles 120, 125, and 134, Uniform Code of Military Justice (UCMJ)....The sentence adjudged by the court-martial included a dishonorable discharge, confinement for eight years, forfeiture of all pay and allowances, and reduction to the lowest enlisted grade. The convening authority disapproved the findings of guilt as to sodomy and indecent acts, approved the findings of guilt as to rape, and approved the sentence as adjudged with the exception of confinement in excess of seven years. The [United States Air Force Court of Criminal Appeals] affirmed....
Appellant's convictions arose from two distinct incidents, which were separated by several years. The Government charged Appellant with the forcible sodomy, indecent assault, and attempted rape of SS, a U.S. civilian he met while on leave in Venice, Italy, in 2000.FN4 In addition, the Government charged Appellant with the rape of Senior Airman DH, while both were stationed at Yokota Airbase, Japan, in 2004.
After the close of the evidence, the military judge instructed the panel that
An Accused may be convicted based only on evidence before the court. Each offense must stand on its own and you must keep the evidence of each offense separate. Stated differently, if you find or believe that the accused is guilty of one offense, you may not use that finding or belief as a basis for inferring, assuming, or proving that he committed any other offense. The burden is on the prosecution to prove each and every element of each offense beyond a reasonable doubt. Proof of one offense carries with it no inference that the accused is guilty of any other offense.
In the closing arguments that followed, the trial counsel noted the military judge's instruction that panel members could not use guilt of one offense as proof of guilt of another offense. However, trial counsel told the panel it could "take these things and compare them for [Appellant's] propensity to commit these types of offenses." He invited the panel to "take both of [the victims'] stories and lay them next to each other and compare them and see what this particular person's M.O. is." Further, trial counsel highlighted several similarities from the two incidents, including Appellant's particular actions and the victims' physical appearance and vulnerability. Defense counsel neither objected to trial counsel's statements nor requested further instructions from the military judge.
The Court of Criminal Appeals subsequently affirmed, finding "that trial counsel's argument was proper based on" Military Rule of Evidence 413(a). The Justice of the United States Court of Appeals for the Armed Forces thereafter split over what to do. All found that the statement made by trial counsel was improper because "[n]o evidence was introduced as propensity evidence pursuant to M.R.E. 413, and none of the procedural safeguards required as a predicate to such introduction were followed." The majority and concurrence, however, found that this impropriety was not plain error while that dissent determined that it was."
Going back to that first conclusion, though, doesn't it imply that the argument would have been proper if trial counsel had followed the procedural safeguards, meaning that charged conduct in a sexual assault case can be used ad propensity character evidence to prove other charged conduct? Indeed, consider the following statement by the dissent:
Had the trial counsel desired to make that argument, he should have followed the procedural steps of Military Rule of Evidence (M.R.E.) 413(b). Had those procedural steps been followed, the military judge would have made the necessary threshold findings under M.R.E. 413 and would have conducted an M.R.E. 403 balancing analysis.
This certainly seems to imply that Rule 413(a) can be used in this manner. And what this means is that is that Rule 413(a) is a rule that can be used to subvert the presumption of innocence. And that's why I believe that the Rule is ex post facto.
(Hat tip to Elena Roberts for the link)