EvidenceProf Blog

Hit & Miss: Rules 104(b), 404(b), and the Hall of Fame Cases of Players From Baseball's Steroid Era

I remember the summer of 1999 like it was yesterday. After graduating from UVA, I was working at Cascino Vaughan Law Offices, Ltd during the day and teaching LSAT prep classes for Princeton Review at night. The law firm had season tickets for the Chicago Cubs, which they occasionally gave to clients. Other times, employees were free to go to the games as long as we got our work done. Like today, the end of 1999 was supposed to be the end of the world, then based on Y2K. Like Peter Gibbons in "Office Space," my job was to change every "99" in the firm's computer code to "1999."

1999 was the year after Mark McGuire and Sammy Sosa "saved" baseball as they simultaneously tried to break Roger Maris' single season home run record. 2000 was the encore as each men again exceeded the mark set by Maris back in 1961. At the time, it seemed beyond question that both of these men would eventually be enshrined in Cooperstown as members of the Baseball Hall of Fame.

Twelve years later, the situation is markedly different. Now, it is well recognized that both players were members of baseball's steroid era, and the question has become the extent to which HOF voters can infer that HOF nominees were juicing themselves and juicing their stats.

In When Can The Baseball Writers For The Hall Of Fame Consider Cheating Through PED Use, Or Not?, written for MLB Reports, Wes Porter and Dan Dressman seek to answer it. And the answer, according to the authors, is to look at Federal Rule of Evidence 404(b) and Federal Rule of Evidence 104(b). They contend that

By analogy, the rules that apply in a court of law can assist the writers with, at least, this threshold question: can the writers consider the PED use, at all, given what we know now?

Before a jury decides a case on the merits, the trial judge often makes preliminary determinations about what is appropriate to the jury’s consideration.  The rules of evidence guide the judge and govern which information the jury may consider at trial, or not.  More specifically, most jurisdictions have a rule governing whether the jury can consider, for a specific purpose, "other crimes, wrongs or acts" of the person on trial (popularly referred to as "bad acts" evidence).  Applying the trial judge’s preliminary determinations to this evidentiary rule about bad acts, by analogy, will assist the writers with the continuum of proof and suspicion about cheating and PED use. 

The analogy goes as follows.  The baseball writers voting on this year’s class for the HOF are the jurors and, as such, must decide the ultimate issue of induction into the Hall on the merits of the candidate’s statistics (their ability).  This year, if the candidate cheated and used PEDs (that is, a "bad act" occurred), for the specific purpose of evaluating the HOF’s integrity standards, then the writers will decide if, and to what extent, that information bears on their vote for admission into the Hall. 

In a court of law, the trial judge, with his or her legal training and years of experience, would make the preliminary determination when the proof of the "bad act" is sufficient for the jury’s consideration, or not.  Our judicial system cannot bog down with many "mini-trials"to determine whether the other act occurred.  Instead, the rules permit the judge to uniformly decide – for all jurors – whether a "reasonable juror" could find that the bad act occurred.  If yes, then the jury may consider it; if no, then the jury may not consider it – at all.  

So, the analogy is as follows: If, say, a prosecutor tries to introduce evidence under Rule 404(b) that a defendant on trial for safecracking cracked a safe in the past to prove that he knew how to crack a safe, the judge would first have to determine whether a reasonable juror could find that the defendant cracked the prior safe by a preponderance of the evidence under Rule 104(b). So, when is this Rule 104(b) test satisfied for the reasonable HOF voter? Take a look at the article to find out.

-CM

Back in the Habit: Eastern District of Arkansas Finds School Disciplinary Records Inadmissible as Habit Evidence

Federal Rule of Evidence 404(b)(1) provides that

Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.

That said, Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

So, when is prior act evidence inadmissible character evidence under Rule 404(b)(1) and when is it admissible habit evidence under Rule 406? Let's take a look at the recent opinion of the United States District Court for the Eastern District of Arkansas in Walls v. Shelby, 2012 WL 6569775 (E.D.Ark. 2012).

In Shelby, Karen Walls, individually and as parent and next friend of Chadarious Avery, sued Roderick Shelby Jr. on a civil rights violation theory claiming that Shelby used excessive force when he beat Avery in an incident in 2011 at the juvenile detention center in Pinebluff, Arkansas. In response, Shelby sought to admit evidence of Avery's school disciplinary records. In turn, Walls filed a motion in limine to have them excluded.

In response, Shelby claimed "that Mr. Avery's prior fighting r[ose] to the level of habit evidence and, therefore, should be admissible under Rule 406, despite Rule 404(b)'s prohibition." The Eastern District of Arkansas disagreed, finding that

Mr. Avery's prior fighting d[id] not rise to the level of a habit within the meaning of Rule 406, which provides that "[e]vidence of a person's habit or an organization's routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice." As stated in the advisory notes to Rule 406, "[a] habit ... is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic."...The advisory notes also address the distinction between character and habit and state in pertinent part:  

The rule is consistent with prevailing views. Much evidence is excluded simply because of failure to achieve the status of habit. Thus, evidence of intemperate "habits" is generally excluded when offered as proof of drunkenness in accident cases,...and evidence of other assaults is inadmissible to prove the instant one in a civil assault action....

Mr. Shelby asserts that Mr. Avery had a habit of fighting or being aggressive when mad but offers little specific evidence that Mr. Avery had a practice of meeting a particular situation with specific conduct. Rather, Mr. Shelby asserts generally that Mr. Avery "demonstrated a practice of being angry or upset followed by physical assault on the object of his anger"....Mr. Shelby asserts that Mr. Avery was suspended multiple times from school for fighting and that Mr. Avery fought regularly as a gang member. This alone fails to demonstrate that Mr. Avery habitually responded to a particular situation with a specific type of conduct. Mr. Shelby does not provide the Court with sufficient specific instances of Mr. Avery responding to anger with physical violence such that the Court can conclude that doing so rises to the level of habit within the meaning of Rule 406. The Court notes that even if this evidence were admissible under Rule 406, it would be inadmissible under Rule 404(b) and 403.

I agree with the court that Avery's behavior was neither committed (a) with sufficient frequency and regularity nor (b) in response to a specific set of stimuli to qualify as habit evidence under Rule 406. I'm a bit confused, though, by the court's conclusion that "even if this evidence were admissible under Rule 406, it would be inadmissible under Rule 404(b)...." That makes no sense. If  Rule 404(b) trumped Rule 406 in this regard, it would render Rule 406 a nullity. Instead, if a court finds that evidence is admissible under Rule 406, it should never be deemed inadmissible under Rule 404(b).  

-CM

O Brother: Court of Appeals of Michigan Finds No Error With Character Evidence Ruling in Murder Case

Michigan Rule of Evidence 404(a)(2) provides that

When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused, or evidence offered by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a charge of homicide to rebut evidence that the alleged victim was the first aggressor [is admissible].

That said, Michigan Rule of Evidence 405(a) provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into reports of relevant specific instances of conduct.

So, where did these two rules leave the defendant in People v. Harvey, 2012 WL 6177090 (Mich.App. 2012)?

In Harvey, Michael Harvey was charged with open murder in the shooting death of his brother.

At trial, several of defendant's family members, as well as his longtime girlfriend, testified against him at trial. These witnesses indicated that the victim began arguing with defendant when defendant's girlfriend accidentally walked through trash that the victim had recently swept into a pile on the living room floor. The family witnesses claimed that defendant entered his sister's room and lay down on her bed. Meanwhile, the victim was standing a couple of feet outside of the sister's room. The sister testified that defendant and the victim argued for approximately five minutes until the victim told defendant to "squash it," which the sister interpreted to mean "forget about it." The sister said that defendant then stood up, drew his revolver from beneath his shirt, pointed it at the victim, asked the victim "you think I'm a punk ass bitch?" and fired the gun at the victim. The sister testified that the victim then charged at defendant, and while they wrestled for the gun on the bed, defendant continued firing at the victim until all six shots were emptied from the revolver. The family witnesses testified that they heard several gunshots and that immediately after the shooting, defendant emerged from the bedroom and stated that he "got" the victim. 

In response to this evidence against him, Harvey sought to present evidence concerning his brother's character for violence. The trial court allowed Harvey to introduce evidence relating to the brother's reputation violence and opinion evidence concerning his character for violence, but the court precluded him from presenting evidence of specific prior acts of violence by the brother.

After he was convicted, Harvey appealed, claiming, inter alia, that this evidentiary ruling was erroneous. The Court of Appeals of Michigan disagreed, noting that only the reputation and opinion evidence was admissible under Michigan Rule of Evidence 405(a). The court did acknowledge that specific act evidence would have been admissible if Harvey had knowledge of his brother's prior violent acts (to prove reasonable apprehension). But because Harvey lacked knowledge of those acts, the appellate court found that the trial court properly precluded him from presenting evidence of the acts.

-CM

I'm Incomplete: 7th Circuit Funds Excerpted Copies From Transcript Inadmissible Under Best Evidence Rule

Yesterday, I posted an entry about the best evidence rule. That rule, contained in Federal Rule of Evidence 1002, states that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

On such rule that "provides otherwise" is Federal Rule of Evidence 1003, which states that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

So, when is it" unfair to admit the duplicate" under Rule 1003? Well, let's take a look at the recent opinion of the Seventh Circuit in Brown v. Advocate South Suburban Hosp., 2012 WL 5870725 (7th Cir. 2012).

In Brown, 

Over a span of several years, two hospital nurses, Josalynn M. Brown and Carolyn Wilson, raised a series of complaints about their working conditions, including complaints of racial discrimination. They later sued their employers, defendants Advocate South Suburban Hospital and Advocate Health and Hospitals Corporation (collectively referred to as "Advocate"). Brown and Wilson argued that Advocate had discriminated against them and subsequently retaliated against them for complaining about the discrimination. The district court concluded that there was not enough evidence to support the nurses' claims and granted summary judgment for Advocate. 

Brown and Wilson thereafter appealed, with Brown claiming, inter alia,

that a supervisor drafted a "negative summary of associate review" and a "performance deficiency notice" that unfairly criticized her conduct and, in turn, constituted retaliatory adverse employment actions.

The Seventh Circuit found, however, that

The plaintiffs have not actually provided these documents; the only evidence they cite to prove their existence is a series of selective excerpts to the deposition testimony of the supervisor who allegedly wrote them. But "[t]he meaning of quoted phrases often depends critically on the unquoted context." As a result, it will often violate "the 'best evidence' rule of Fed.R.Evid. 1002 and the 'completeness' rule of Fed.R.Evid. 106 Fed.R.Evid. 106 to present trial excerpts from a key document without introducing the document itself."...Accordingly, it is unclear whether the deposition testimony would even be enough to prove the existence of the documents at trial. 

Federal Rule of Evidence 106, the rule of completeness, provides that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

So, what the court was really saying is that when a party tries to introduce excerpted copies of an original, those excerpted copies will not be admissible under Federal Rule of Evidence 1003 because "the circumstances make it unfair to admit the duplicate" based upon the rule of completeness.

-CM

Better Evidence or Best Evidence?: Court of Appeals of Minnesota Finds Best Evidence Rule Doesn't Apply to Confession

Similar to its federal counterpart, Minnesota Rule of Evidence 1002 provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Legislative Act.

As the recent opinion of the Court of Appeals of Minnesota in State v. Rowland, 2012 WL 6554539 (Minn.App. 2012), makes clear, however, this best evidence rule does not apply when a witness has independent personal knowledge of the contents of the writing, recording, or photograph.

In Rowland, Craig Rowland was charged with third-degree criminal sexual conduct. After he was convicted, Rowland appealed, claiming, inter alia, that the trial court erred by allowing an investigator to testify regarding his statement/confession without introducing the recording of the statement/confession or a transcript. Specifically, he claimed "that the best-evidence rule required that his recorded statement be admitted, rather than the investigator's recollection of his statement."

The Court of Appeals of Minnesota disagreed, finding that

The "best-evidence" rule states that "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required."...But the state is not required to introduce a tape or transcript of a police interview with a criminal defendant....The best-evidence rule is inapplicable here. The investigator testified regarding appellant's statement to him. "[A] witness with first-hand knowledge of what was said in a conversation may permissibly testify as to what he heard."...Therefore, the district court did not abuse its discretion in admitting the investigator's testimony regarding his recollection of appellant's statement.

In other words, the investigator had independent personal knowledge of the statement/confession, meaning that his knowledge of the statement/confession was not dependent on the recording. Instead, the investigator himself heard Rowland make the statement/confession in person. Therefore, even if the statement/confession were not recorded, the investigator would have had knowledge of it. And that's why the best evidence rule did not apply.

-CM