EvidenceProf Blog

Hawaii Five-O: Hawai'i Court Finds Official Duty Presumption Inapplicable to Warrantless Arrest

Hawai'i Rule of Evidence 304(c) sets forth a number of presumptions that impose a burden of proof:

(1) Owner of legal title is owner of beneficial title. The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.  

(2) Official duty regularly performed; lawful arrest. It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.  

(3) Intention of ordinary consequences of voluntary act. A person is presumed to intend the ordinary consequences of the person's voluntary act.  

(4) Doing of an unlawful act. An unlawful intent is presumed from the doing of an unlawful act.  

(5) Any court, any judge acting as such. Any court of this State or the United States, or any court of general jurisdiction in any other state or nation, or any judge of such a court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction. This presumption applies only when the act of the court or judge is under collateral attack.  

(6) Ceremonial marriage. A ceremonial marriage is presumed to be valid.  

(7) Death. A person who is absent for a continuous period of five years, during which the person has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead.

In Kaneshiro v. Administrative Director of Courts, 2012 WL 6621141 (Hawai'i App. 2012), the respondent sought to rely upon the presumption contained in Rule of Evidence 304(c)(2). But there was one little problem...

In Kaneshiro, 

Ronald Kaneshiro...was stopped at a sobriety checkpoint roadblock and arrested for operating a vehicle under the influence of an intoxicant (OVUII). Respondent–Appellee Administrative Director of the Courts, State of Hawai‘i..., acting through a hearing officer of the Administrative Driver's License Revocation Office..., sustained the administrative revocation of Kaneshiro's driver's license. Kaneshiro sought judicial review of the Director's decision. The District Court of the First Circuit...affirmed the Director's decision and issued a "Decision and Order Affirming Administrative Revocation" and a "Judgment on Appeal"...on May 19, 2008. Kaneshiro appeal[ed] from the this Judgment.

Kaneshiro's argument on appeal was "that the District Court erred in holding that there was sufficient evidence to find that the police stopped Kaneshiro's vehicle in conformity with the predetermined roadblock procedure of stopping every fifth vehicle." In response, the Director of the Courts claimed "that the presumption of '[o]fficial duty regularly performed' (official duty presumption) set forth in Hawai'i Rules of Evidence (HRE) 304(c)(2)" could be applied to the case at hand. 

The Intermediate Appellate Court of Hawai'i disagreed, finding that 

The commentary to HRE 304(c)(2)  reveals that the presumption was not intended to apply to warrantless seizures or searches. Commentary to HRE Rule 304 ("The qualification barring extension of the [official duty] presumption to the lawfulness of arrests or searches conducted without warrants is implicit in search and seizure law[.]"). 

-CM

Dead Man Talking: Court of Appeals of Michigan Finds No Problem With Forfeiture by Wrongdoing Jury Instruction

I've written a good deal recently about the doctrine of forfeiture by wrongdoing. My main focus has been upon whether there is a transferred intent doctrine of forfeiture by wrongdoing, i.e., whether forfeiture applies when a defendant on trial for murdering a prospective witness killed that prospective witness to prevent him from testifying at some other trial (e.g., a robbery trial). The recent opinion of the Court of Appeals of Michigan in People v. Cooley, 2012 WL 6633989 (Mich.App. 2012), however, addressed a different question relating to the doctrine of forfeiture by wrongdoing, albeit one that raises an interesting question connected to transferred intent.

In Cooley, Darnell Cooley entered a conditional no contest plea to charges of attempted manslaughter. Anthony Allis was to be a witness against Cooley at his trial on these charges, but he died before such a trial could occur. The trial judge determined by a preponderance of the evidence that Cooley intentionally procured the unavailability of Allis by killing him or arranging his death (the court's opinion is unclear on who allegedly killed Allis).

Cooley thus entered the conditional no contest plea,with Cooley being allowed to withdraw that plea if the Court of Appeals of Michigan found that the trial judge erred in applying the doctrine of forfeiture by wrongdoing. Part of the trial judge's application of the doctrine was the proposed instruction that he told Cooley that he would give if the case proceeded to trial. That instruction would have informed the jury:

Two witnesses for the prosecution are unavailable for trial. Anthony [A]lls was the victim of a homicide and the [c]ourt has ruled that his statements are admissible through...other evidence.

You may not speculate as to the circumstances surrounding his death or consider it any way [sic] or any purpose in rendering your verdict.

The Court of Appeals of Michigan concluded that

Defendant has failed to show that the trial court erred in deciding to give a jury instruction that Alls's unavailability was due to his homicide. The prosecution was permitted to give an explanation to the trier of fact regarding why Alls was unavailable....Additionally, the jury instruction directed the jurors not to speculate regarding the circumstances surrounding his death or consider it for the purpose of rendering a verdict. Thus, that instruction would have cured any possible prejudice toward defendant, as jurors are presumed to follow the court's instruction.

Do you agree? Personally, I don't know. Would it have been sufficient for the instruction to say that Allis was unavailable? Would it have been sufficient to say that Allis had passed away? Or would it have been sufficient to say that Allis had been killed without calling the killing a homicide? Again, I'm not yet sure how I feel about the issue.

As I said, though, the question in Cooley raises an interesting question with regard to the transferred intent doctrine of forfeiture by wrongdoing. Let's say that Cooley is later prosecuted for murdering Allis. And let's say that the prosecution wants to introduce Allis' statements under the doctrine of forfeiture by wrongdoing? If the court deems the statements admissible, what type of instruction should the judge give? Wouldn't an instruction that Allis was the victim of a homicide feed the jury the answer to the guilt/innocence question before it?

-CM 

As My Next Witness: Court of Appeals of Kansas Finds Defendant Couldn't Call Prosecutor as Witness

Kansas has statutes precluding judges (KSA 60-442) and jurors KSA 60-443. By implication, then, does the absence of a rule precluding the prosecutor in a trial from testifying mean that prosecutors can be called to testify at trial? According to the recent opinion of the Court of Appeals of Kansas in State v. Rivera, 2012 WL 6642109 (Kan.App. 2012), the answer is "maybe, but not in this case."

In Rivera, Monica Rivera was convicted of involuntary manslaughter and child endangerment. This crimial action came after a child-in-need-of-care (CINC) case, after which the judge (1) ordered that Rivera's daughter, G.R., be placed in the custody of the Kansas Department of Social and Rehabilitation Services; and (2) entered a restraining order preventing Rivera's boyfriend, Jason Jones, from having any contact with G.R. Thereafter,

On July 20, the district court held a CINC hearing...At this hearing, the State advised the district court that the State believed it was in G.R.'s and the family's best interests for the court to approve an informal supervision agreement. Under the terms of the informal supervision agreement, G.R. was released from SRS custody and was placed back in Rivera's custody, Rivera and Jones were required to complete a parenting class, Jones was required to complete a counseling intake to determine what counseling services he would be required to attend, and the no-contact order preventing Jones from having any contact with G.R. was eliminated....The district court approved the informal supervision agreement.

After Rivera was convicted, she appealed. At her criminal trial, Rivera had sought to call the prosecutor as a witness because the prosecutor because the prosecutor was involved in the CINC case. Specifically, Rivera claimed that the prosecutor's involvement in the CINC case made the prosecutor privy to information that Rivera believed was vital to her defense. The trial judge, however, had granted the prosecutor's motion to disqualify himself as a witness

In addressing Rivera's appeal, the Court of Appeals of Kansas noted that 

In deciding a motion to disqualify an attorney when opposing counsel wishes to call that attorney as a witness, a court should consider: (1) whether it has been shown that the attorney would give evidence material to the determination of the issues being litigated; (2) whether the evidence could not be obtained elsewhere; and (3) whether the testimony would be prejudicial or potentially prejudicial to the testifying attorney's client.

The court then found that

In this case, Rivera has failed to show that the prosecutor's deposition or trial testimony was necessary to her defense. First, the prosecutor's rationale and decision-making process for agreeing to an informal supervision agreement and dropping Jones' no-contact order was not material to the issues being litigated in the case. The main issue in the case was whether Rivera could have reasonably foreseen that Jones could cause harm to G.R. when she left G.R. alone in Jones' care, not whether the prosecutor reasonably foresaw this possibility. Second, and even more significant, is the fact that Rivera was able to present the information she wished by other means. During the trial, both Willcott, Rivera's attorney during the CINC case, and Horsky, G.R.'s guardian ad litem, testified. Rivera's counsel had the opportunity to question these attorneys as to why the parties agreed to recommend the adoption of the informal supervision agreement and the removal of the no-contact order. In fact, Rivera's attorney posed this question to Horsky. Furthermore, Rivera also admitted a transcript of the July 20 CINC hearing. In that transcript, the prosecutor explains why the State was recommending the informal supervision agreement. Thus, Rivera has failed to show that the district court erred in denying her motion to depose the prosecutor or to call the prosecutor as a witness.

-CM

Not a Juror Was Stirring: 5th Circuit Finds No Problem WIth Allen Charge Despite Impending Christmas Holiday

An Allen charge, derived from the Supreme Court's opinion in Allen v. United States, 164 U.S. 492 (1896), is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reachesa verdict. Also referred to as a dynamite charge, a nitroglycerine charge, a shotgun charge, and a third-degree instruction, an Allen charge has been banned by some states, which consider the charge to be unduly coercive. Should the Allen charge also be banned when a major holiday is fast approaching? Should the charge be banned the day before a major holiday? Let's take a look at the recent opinion of the Fifth Circuit in United States v. Montalvo, 2012 WL 4788659 (5th Cir. 2012).

In Montalvo, Damian Montalvo was charged with various drug crimes.

During the course of its deliberation, the jury sent three notes to the district judge indicating that it could not reach a unanimous verdict. After receiving the third note, the district judge issued an Allen charge. That was on Monday, December 20, 2010. The jury continued to deliberate for a few more hours on that day and resumed deliberations the next morning, December 21, less than four full days before Christmas. It then returned a verdict finding Montalvo not guilty on the first five counts, but guilty on Count Six, possessing with intent to distribute more than 1,000 kilograms of marijuana. Montalvo filed a motion for a new trial, which the district court denied.

Montalvo thereafter appealed, claiming that the Allen charge was unduly coercive given the approaching Christmas holiday. As support, he offered

two jurors' affidavits...which state[d] that, although a majority of the jurors initially voted to find Montalvo not guilty on all counts, they compromised to find him guilty as to Count Six after the Allen charge was issued, due in part to concerns about the approaching Christmas holiday.

First, the Fifth Circuit deemed the juror affidavits inadmissible under Federal Rule of Evidence 606(b), which precludes post-verdict jury impeachment unless it relates to extraneous prejudicial information, improper outside influences, or transcription errors.

Second, with regard to the question of whether the timing of the Allen charge was inherently coercive, the Fifth Circuit cited to a prior opinion in which it "denied another Allen charge challenge, observing that '[t]he time of the day was not late. The day was not Friday or the day before a holiday. The weather was not alleged to be inclement.'" Applying this precedent, the court concluded that

Here, although the Christmas holiday season was in progress, the Allen charge was not issued on "the day before a holiday"....Moreover, there appears to be no indication that the jury expressed any concern about the approaching holiday by requesting a recess, and the court transcript indicates that the judge neither mentioned the holiday nor set a time-frame for the jurors to complete their deliberations.

Interesting. So, would an Allen charge on Christmas Eve have been inherently coercive? Would the Allen charge need to have been issued late in the day to be coercive? And what if the judge had mentioned the impending holiday?

-CM

Measure for Measure?: 2nd Circuit Fails to Resolve Whether FAA Directive was Inadmissible Under Rule 407

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:  

•negligence;

•culpable conduct;

•a defect in a product or its design;

•or a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

So, let's say that there's an accident, prompting the plaintiff to sue the defendant. And let's say that some third party with regulatory authority over the defendant subsequently issues directives, regulations, etc., mandating that the defendant adopt a remedial measure. Are those directives, regulations, etc. inadmissible pursuant to Rule 407? And does it change the analysis if the defendant's reporting is what led to the issuance of the guidelines, regulations, etc.? Let's take a look at the recent opinion of the Second Circuit in Lidle v. Cirrus Design Corp., 2012 WL 6603388 (2nd Cir. 2012).

In Lidle, 

On October 11, 2006, Cory Lidle and his flight instructor, Tyler Stanger, were flying in a Cirrus Model SR20 G2 aircraft, heading north above the East River. As the aircraft approached the controlled airspace surrounding LaGuardia Airport, it appeared to attempt a 180–degree turn to reverse its course. The aircraft failed to complete the turn and crashed into an apartment building on Manhattan's Upper East Side. Both Lidle and Stanger were killed.

The plaintiffs thereafter brought an action against Cirrus, asserting claims of wrongful death and survivorship, negligence, product liability, and breach of warranty. After the jury returned a verdict in favor of Cirrus, the plaintiffs moved for a new trial, claiming, inter alia, that the district court erred in deeming inadmissible a "Federal Aviation Administration ("FAA") Airworthiness Directive mandating certain adjustments to the rudder-aileron interconnect on all Cirrus Model SR20 aircraft." This directive "incorporated by reference a 2007 Service Bulletin issued by Cirrus. 

The plaintiffs claimed tha the FAA directive should have been deemed admissible because

Rule 407 does not apply to the Airworthiness Directive because it is a subsequent remedial measure taken by the government, not by Cirrus. See Appellants' Br. at 35–36 (citing Lion Oil Trading & Transp., Inc. v. Statoil Mktg. & Trading (US) Inc., Nos. 08 Civ. 11315(WHP), 09 Civ.2081(WHP), 2011 U.S. Dist. LEXIS 24516, at *21 (S.D.N.Y. Feb. 28, 2011) ("Rule 407 does not bar evidence of subsequent remedial measures by non-defendants.")).

The district court, however, excluded evidence of the directive for two reasons. First,

The district court concluded that allowing plaintiffs to introduce the Airworthiness Directive would function as a "back door" to introducing evidence of Cirrus's own subsequent remedial measure, which was squarely prohibited by Rule 407.

Second, 

the district court explained that "in the circumstances of this case where the [Airworthiness Directive] was issued as a direct response to [Cirrus's Service] Bulletin, it is covered by Rule 407...because to determine otherwise might discourage manufacturers from issuing service bulletins as part of voluntary compliance procedures."...see Werner v. Upjohn Co., 628 F.2d 848, 859 (4th Cir.1980) (concluding that admission of an FDA regulation "to prove antecedent negligence simply because [a government agency] required or might have required the change,...might...discourage [ ] [manufacturers] from taking early action on their own and from participating fully in voluntary compliance procedures"); In re Airport Disaster at Metro. Airport, Detroit, Mich. on Jan. 19, 1979, 782 F.2d 1041, 1985 U.S.App. LEXIS 13811, at *16–17 (6th Cir. Dec. 3, 1985) (unpublished opinion) (excluding an FAA Airworthiness Directive).

Ultimately, the Second Circuit did not decide whether the FAA directive was admissible, finding that the plaintiffs could not prove that they were prejudiced by its exclusion.

-CM