EvidenceProf Blog

It's So Juvenile: 6th Circuit Finds Failure To Disclose Juvenile Adjudication Could Have Violated Brady But Didn't

Ohio Rule of Evidence 609(D) provides that "[e]vidence of juvenile adjudications is not admissible except as provided by statute enacted by the General Assembly." So, let's say that the State fails to disclose that a witness for the prosecution has a juvenile adjudication. Can this failure to disclose form the basis for a Brady violation because the adjudication constitutes material exculpatory evidence? According to the recent opinon of the Sixth Circuit in Wogenstahl v. Mitchell, 2012 WL 310819 (6th Cir. 2012), the answer is "yes." 

In Wogenstahl, Jeffrey Wogenstahl was convicted of aggravated murder with death specifications. After he unsuccessfully appealed at the state court level in Ohio, Wogenstahl filed a petition for writ of habeas corpus in federal district court in Ohio. After the district court denied his petition, Wogenstahl appealed to the Sixth Circuit.

One of the grounds for Wogenstahl's petition was that the State violated its obligations under Brady because it failed to disclose that Justin Horn, a witness for the prosecution, had a juvenile adjudication for marijuana trafficking. The State countered that evidence of the adjudication was inadmissible under Ohio Rule of Evidence 609(D), meaning that it could not be material for Brady purposes.

The Sixth Circuit, being one of the courts that holds that inadmissible evidence can never be material for Brady purposes, agreed with the State's argument in theory but found that evidence of the adjudication could have been admissible. According to the court, 

Under Ohio's evidence rules, "[e]vidence of juvenile adjudications is not admissible except as provided by statute enacted by the General Assembly."...."Where the submission of the juvenile adjudication is done merely to disclose that the adjudication exists in order to denigrate the juvenile's general credibility, the juvenile adjudication is inadmissible."...However, "juvenile adjudications may be said to contradict or impeach specific testimony of a witness as opposed to a general attack on the [witness's] credibility."...Because Horn's marijuana trafficking adjudication was directly relevant to Wogenstahl's account of his visit to Garrett's apartment, the adjudication was likely admissible under Ohio law. 

Nonetheless, the Sixth Circuit still found that evidence of the juvenile adjudication was not material and thus agreed with the denial of Wogenstahl's petition.

-CM

(Attempted) Murder Was The Case: Court Of Appeals Of Iowa Finds No Error In Impeachment Of Defense Witness

Similar to its federal counterpart, Iowa Rule of Evidence 5.609(a)(1) provides that

Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

So, let's say that a defendant is convicted of intimidation with a dangerous weapon, willful injury causing serious injury, going armed with intent, and possession of a firearm as a felon. and let's say that a defense witness has an attempted murder conviction, with his date of release from that conviction being 8 years before the defendant's trial. Should the prosecution be able to impeach the defense witness with evidence of this conviction? According to the recent opinion of the Court of Appeals of Iowa in State v. Love, 2012 WL 300321 (Iowa.App. 2012), the answer is "yes."

In Love, Toraino Love was convicted of the aforementioned crimes. One vital piece of evidence used to convict Love was the testimony of Romeo Mabry, a witness for the prosecution. This testimony contradicted a handwritten statement written by Mabry, who claimed that he write the statement because he was threatened by Love and Quinteze Latiker.

At trial, Love impeached Mabry through his conviction for criminal mischief, and the prosecution in turn impeached Latiker through his conviction for attempted murder. After Love was convicted, he appealed, claiming, inter alia, that the trial court erred in permitting the prosecution to impeach Latiker with evidence of his conviction for attempted murder.

In response, the Court of Appeals of Iowa noted that

The State concedes and we acknowledge that Latiker's attempted-murder conviction did not involve premeditation or dishonesty and thus carried low probative value....Additionally, Latiker's release from confinement as a result of the conviction occurred nearly eight years before the date of trial. Although within the ten-year limit for purposes of the rule, the probative value of the conviction diminishes with each passing year.

That said, teh court then found that

The probative value of the attempted murder conviction was increased by the fact that the district court allowed Love to impeach Mabry with his prior conviction for criminal mischief in the third degree. Latiker's testimony was in direct opposition to Mabry's testimony. Given the facts of this case, especially Latiker's assurances that he had no reason to lie on behalf of Love, we find evidence of Latiker's prior conviction allowed the jury to more accurately assess the credibility of the two witnesses, increasing its probative value.

Moreover, the court did "not find persuasive Love's argument that the similarity between the charges against him and Latiker's attempted-murder conviction compounded the risk that Latiker's prior conviction unfairly prejudiced Love." 

-CM

Texas Justice: Court Of Appeals Of Texas, Houston, Notes Exception To Rule 608(b)

Texas Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

That said, Texas courts have carved out an exception to Rule 608(b) as is made clear by the recent opinion of the Court of Appeals of Texas, Houston, in McGough v. State, 2012 WL 273885 (Tex.App.-Houston [14 Dist.] 2012).

In McGough, James Alan McGough was convicted of aggravated assault of a household member and assessed punishment at fifty years' confinement in the Texas Department of Criminal Justice. After he was convicted, McGough appealed, claiming that the trial court erred by permitting the prosecution to present evidence that he was on parole at the time of trial for a prior felony conviction in 1990.

The court of appeals disagreed, finding that

Rule of Evidence 608(b) prohibits the use of specific instances of conduct to attack the credibility of a witness, but the Court of Criminal Appeals has recognized an exception to this prohibition where a party seeks to prove a witness's bias or motive to testify falsely.

Specifically, the court of appeals found that in presenting this evidence,

the State sought to show that appellant was biased as a witness and had a motive to testify falsely to avoid being convicted of a violation of his parole. The trial court allowed the introduction of this evidence under Rule of Evidence 608(b), and we conclude that it did not err in overruling appellant's objection. We accordingly overrule appellant's second issue.

-CM

Call The Doctor: Military Court Finds Psychotherapist Privilege Inapplicable To Statements To Doctor At Mental Health Department

Military Rule of Evidence 513(a) provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing a confidential communication made between the patient and a psychotherapist or an assistant to the psychotherapist, in a case arising under the UCMJ, if such communication was made for the purpose of facilitating diagnosis or treatment of the patient’s mental or emotional condition.

And, as the recent opinion of the U.S. Navy–Marine Corps Court of Criminal Appeals in United States v. McGuire, 2012 WL 267935 (N.M.Ct.Crim.App. 2012), makes clear, the Military Rules of Evidence only contain this psychotherapist-patient privilege and do not contain a physician-patient privilege.

In McGuire, Stephen McGuire was court-martialed as a result of

the relationship the appellant, an officer and helicopter pilot, fostered with his unit co-worker, Corporal K, a helicopter crew chief....The appellant, Corporal K, and Lance Corporal W all went on an overnight social camping trip at a wildlife park. Because the appellant's enlisted companions were under the legal drinking age, the appellant purchased alcoholic drinks for them prior to the trip....Thereafter, they drank alcohol and conversed around a campfire before falling asleep. During the trip, the appellant refused to honor the differences in rank, insisting his enlisted companions call him by his first name.

Weeks after camping together, the appellant joined Corporal K and his wife at a community hot tub in Corporal K's apartment complex. The appellant brought beer with him and the three drank alcoholic beverages together. Once the alcohol was consumed, they went into Corporal K's apartment, where the appellant and Corporal K drank large quantities of vodka and played video games together. The appellant arranged with Corporal K's wife to sleep in the living room because he felt unsafe walking home.

Corporal K's wife eventually retired to the marital bedroom, leaving the appellant to sleep in the living room and Corporal K on the living room floor where he had passed out. Corporal K later awoke on the futon in his living room to his pants being pulled down and a hand on his genitals. Corporal K then got up, fell, and was picked up and placed on the futon face down. Corporal K then felt a pain in his anus as if something had penetrated it. Simultaneously, Corporal K heard the appellant say he was homosexual.

Thereafter,

Corporal K reported the incident to his command and an investigation ensued into the appellant's alleged conduct. The appellant's commanding officer (CO) had the appellant brought in to his office, at which time the CO told him he would be transferred because of the allegations. The appellant then made self-injurious gestures to his wrist with his pocket knife and car keys at which point his CO confiscated them. The appellant cut himself, drawing blood. Because of the appellant's reaction and out of concern for his well-being, the CO and the executive officer personally drove the appellant to the nearest Naval Hospital emergency room (ER). They arrived at the ER after the normal working hours of the hospital's mental health department.

At the ER,

the appellant was seen by Lieutenant (LT) B, the duty doctor. As part of his normal duties as an ER doctor, LT B conducted a physical examination and a mental health screening examination to determine whether he should refer the appellant to mental health. During the course of the examination, the appellant made admissions to LT B concerning the alleged offenses. LT B was a general medical officer, not a psychiatrist, psychologist, psychotherapist, or clinical social worker.

This last fact proved fatal to McGuire's appeal, in which he claimed that the statements that he made to LT B were covered by psychotherapist-patient privilege under Military Rule of Evidence 513(a). According to the court,

Here, the appellant enjoys no privilege under MIL. R. EVID. 513 because LT B was not a psychotherapist or an assistant to a psychotherapist, and the appellant was not laboring under the mistaken belief that LT B was such. LT B was the duty ER doctor. He was not directed by, assigned to, or supervised by any psychotherapist. LT B conducted a short mental health screening examination of the appellant to determine whether his referral to the mental health department was required. It was standard practice for the duty ER doctor to conduct the examination when any patient appeared for evaluation.

-CM

A Foolish Consistency?: Does Minnesota's Prior Consistent Statement Rule Make Sense?

Federal Rule of Evidence 801(d)(1)(B) indicates that 

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

Meanwhile, Minnesota Rule of Evidence 801(d)(1)(B) indicates that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness...

The recent opinion of the Court of Appeals of Minnesota in State v. Johnson, 2012 WL 254476 (Minn.App. 2012), reveals the problem that I have with Minnesota's version of Rule 801(d)(1)(B).

In Johnson, Jerome Johnson was convicted of second-degree assault and unlawful possession of a firearm. After he was convicted, Johnson appealed, claiming that the district court erred by precluding him from introducing into evidence a videotape of his police interview, which he claimed was a prior consistent statement under Minnesota Rule of Evidence 801(d)(1)(B) that was consistent with his trial testimony.

The Court of Appeals of Minnesota agreed, concluding that

First, the statements are not hearsay and are admissible as prior statements by a witness. Appellant testified at trial and was subject to cross-examination concerning the statements; the statements are "consistent with [appellant's] testimony and helpful to the trier of fact in evaluating [his] credibility as a witness." See Minn. R. Evid. 801(d)(1)(B). The statements echoed appellant's comments during the police interview and his testimony at trial; therefore, we conclude that the statements were admissible to assist the jury in evaluating his credibility. Second, the district court's finding that the statements were "self-serving" cannot serve as a basis to exclude otherwise admissible evidence.Accordingly, we conclude that the district court abused its discretion in excluding the statements.

The court of appeals ultimately found that the district court's error was harmless, but this second point illustrates the problem that I have with Minnesota Rule of Evidence 801(d)(1)(B): It allows self-serving statements to be admitted as long as they are consistent with trial testimony. The only requirement for admission is that the prior statement be "helpful to the trier of fact in evaluating the declarant's credibility as a witness..." But when would a prior consistent statement not be helpful to the jury in evaluating credibility?

Federal Rule of Evidence 801(d)(1)(B) only allows for the admission of a prior consistent statement to rehabilitate the credibility of a witness who has had his credibility attacked. Minnesota's version allows for such bolstering in the absence of an initial attack.

-CM

You And I: Supreme Court Of Maine Reverses Conviction Based On Improperly Admitted Hearsay

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Meanwhile, Maine's counterpart, Maine Rule of Evidence 804(b)(3), provides an exception for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused, is not within this exception. (emphasis added).

And what this last, bolded sentence of Maine Rule 804(b)(3) means is that the statement prompting the defendant's appeal in State v. Guyette, 2012 WL 182159 (Me. 2012), was clearly inadmissible.

In Guyette, Jesse Guyette was convicted of of unlawful possession of scheduled drugs. At Guyette's trial, Scott Drost, who was not a co-defendant of Guyette, invoked his Fifth Amendment privilege self-incrimination. Thereafter, pursuant to Maine Rule 804(b)(3), the prosecution introduced a recording of a phone call in which Dorst incriminated himself as well as Guyette.

After he was convicted, Guyette appealed, claiming that his statement was inadmissible under Maine Rule 804(b)(3) because it was "A statement or confession offered against the accused in a criminal case, made by a codefendant or other person implicating both himself and the accused...." The Supreme Court of Maine agreed, finding that "[w]hen offered against the accused in a criminal case, the last sentence excludes from the statement against penal interest hearsay exception out-of-court statements made by any person that implicate both the declarant and the accused." 

So, how many states have a similar explicit exclusion? According to the Maine Supremes, "six states have implemented similar language in their rules governing the admissibility of statements against penal interest." Those states are Arkansas, Indiana, Nevada, North Dakota Oklahoma, and Vermont.

-CM

Revelations: Should A Jury Verdict Based On A Divine Revelation Be Impeachable?

Similar to its federal counterpart, Utah Rule of Evidence 606(b) provides that

(1)   Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2)   Exceptions. A juror may testify about whether:

(A)   extraneous prejudicial information was improperly brought to the jury’s attention; or

(B)   an outside influence was improperly brought to bear on any juror.

So, let's say that a juror claims to have received a revelation that if defense counsel did not make eye contact with her when he presented his argument, the defendant was guilty. If the defendant seeks to present evidence of this revelation to impeach his guilty verdict, should the court deem the evidence admissible? Let's take a look at the recent opinion of the Supreme Court of Utah in Taylor v. State, 2012 WL 192798 (Utah 2012).

Taylor itself didn't deal with this issue. Instead, it dealt with the question of whether the defendant could present evidence that the jury foreperson suggested to another juror during deliberations that she put herself in the "shoes" of the victims. The answer to this question was a clear "no." In reaching this opinion, though, the Supreme Court of Utah relied upon its prior opinion in State v. DeMille, 756 P.2d 81 (1988). 

In DeMille, the facts were as stated in the introduction. In rejecting the defendant's argument that the juror's revelation was an improper outside influence, the Supreme Court of Utah held that

If we were to accept defendant's argument that supposed responses to prayer are within the meaning of the term "outside influence" in rule 606(b), we would implicitly be holding that it is improper for a juror to rely upon prayer, or supposed responses to prayer, during deliberations. Such a conclusion could well infringe upon the religious liberties of the jurors by imposing a religious test for service on a jury....A juror is fit to serve if he or she can impartially weigh the evidence and apply the law to the facts as he or she finds them....Prayer is almost certainly a part of the personal decision-making process of many people, a process that is employed when serving on a jury. There is no necessary inconsistency between proper performance as a juror and reliance on prayer or supposed responses to prayer. So long as a juror is capable of fairly weighing the evidence and applying the law to the facts, one may not challenge that juror's decision on grounds that he or she may have reached it by aid of prayer or supposed responses to prayer. Therefore, we hold that under rule 606(b), prayer and supposed responses to prayer are not included within the meaning of the words "outside influence." Testimony that a juror has so acted is not admissible to challenge a verdict; the trial judge properly refused to consider the proffered affidavit.

That said, Justice Stewart dissented on Constitutional grounds, finding that

A defendant is constitutionally entitled to a jury that determines guilt or innocence based on the evidence and the law presented to it. Verdicts decided on some other basis make the constitutionally guaranteed right to trial by jury a nullity. Indeed, a verdict that is rendered on the basis of supposed divine intervention is a throw-back to the primitive days of trial by ordeal where, for example, the manner of healing of a severe burn inflicted on a party was deemed to be an indication of God's judgment....

I believe the majority fails to draw a critical distinction between the legitimacy of jurors' seeking divine assistance in accurately and dispassionately weighing the evidence and the illegitimacy of jurors' abdicating their sworn duty to decide the case on the evidence and instead relying on some supposedly divine sign. Although "[a] juror is fit to serve if he or she can impartially weigh the evidence and apply the law to the facts as he or she finds them," as the majority observes, the fact appears to be that the juror in question did not impartially weigh the evidence and apply the law to the facts, but disregarded the evidence and the law and ruled on the basis of an "outside influence." Accordingly, the trial court could have relied on the affidavit under Rule 606(b) for the purpose of deciding that a hearing on the allegations should have been held. It is of particular significance that the juror in question is alleged to have been "one of the leaders" during the jury deliberations.

-CM