EvidenceProf Blog

Violent Reaction: Supreme Court Of Arkansas Finds No Problem With Impeachment Of Defendant Charged With Murder

Similar to its federal counterpart, Arkansas Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.  

So, let's say that a defendant is charged with murdering his stepfather. If he is willing to stipulate that he is a prior felon, should the court allow the prosecutor to delve into the details of those prior convictions if they involved crimes of violence against other family members? According to the recent opinion of the Supreme Court of Arkansas in Ellis v. State, 2012 WL 503880 (Ark. 2012), the answer is yes.

In Ellis, Tyrone Ellis was convicted of first-degree murder after finding that Ellis shots and killed his stepfather. After he was convicted, Ellis appealed, claiming, inter alia, that the circuit court erred in permitting the prosecutor to inquire into the nature of his prior felony convictions. Those convictions were for aggravated assault and second-degree battery based upon acts that Ellis committed against other family members. Ellis stipulated to the fact the he was a prior felon and claimed that the prosecutor shouldn't have been allowed to delve into the details of those prior convictions.

The Supreme Court of Arkansas disagreed, concluding that

Ellis's prior convictions were for violent crimes and involved family members as the targets of his violence. The evidence in this case consisted primarily of the testimony of eyewitnesses and Ellis himself. In prior cases where the evidence consists of witness or victim testimony and the testimony of the accused, this court has steadfastly held that the accused's credibility is critical and, therefore, prior convictions are highly probative.

Moreover, the court found that

the prosecutor's cross-examination on the prior felonies was limited to determining the type of crime, whether a weapon was used, and Ellis's relationship to the victim. Because the inquiry was limited, the evidence in this case clearly fell within the parameters of Rule 609.

-CM

Chicken And Waffles And Opinions?: 9th Circuit Oddly Cites To Rule 701 In ASCAP Copyright Action Against Roscoe's Parent Company

Federal Rule of Evidence 701 provides that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So, under Rule 701, can a lay witness identify certain songs that he heard in a restaurant? According to the recent opinion of the Ninth Circuit in Range Road Music, Inc. v. East Coast Foods, Inc., 2012 WL 502510 (9th Cir. 2012), the answer is "yes."

In East Coast Foods, shortly after East Coast Foods, inc. opened up a Roscoe's House of Chicken and Waffles in Long Beach, the the American Society of Composers, Authors, and Publishers (ASCAP)

contacted East Coast to offer it a license to perform music by ASCAP members at the restaurant and lounge. East Coast did not purchase a license, and between 2001 and 2007 East Coast ignored repeated requests from ASCAP to pay licensing fees. In 2008, ASCAP engaged an independent investigator, Scott Greene, to visit the Long Beach Roscoe's, make notes of his visit, and prepare a detailed investigative report indicating whether copyright infringement was occurring at the venue. Greene, who considers himself knowledgeable about every genre of music "except heavy metal and explicit rap," had conducted over 300 investigations for ASCAP when he was retained for the Roscoe's job.

Greene visited Roscoe's on May 30, 2008. During his visit, he surreptitiously noted the musical compositions performed by that night's live musical act, Azar Lawrence & the L.A. Legends, as well as songs played from a CD over the lounge's sound system. During the live performance, he was able to personally identify the jazz compositions "All or Nothing at All," "It's Easy To Remember," "My Favorite Things," and "Be–Bop," all popularly associated with John Coltrane. In several cases, the band leader announced the titles of the songs before playing them. Greene also identified four songs by the jazz-fusion group Hiroshima that played on the venue's CD player: "Bop–Hop," "Once Before I Sleep," "One Fine Day," and "Only Love." He did not personally recognize the Hiroshima songs, but he approached the CD player and transcribed the titles directly from the CD jewel case as the songs played.

ASCAP thereafter brought an action raising eight counts of copyright infringement against East Coast, and the district court granted ASCAP summary judgment on all eight counts. Thereafter, East Coast appealed, claiming, inter alia, that the district court erred in admitting Greene's report as well as a declaration that he completed. The Ninth Circuit, however, found that

The district court did not abuse its discretion by relying on Greene's report and declaration. Green's report and declaration contained his competent percipient witness testimony as a visitor to the Long Beach Roscoe's. Fed.R.Evid. 701. Identifying popular songs does not require "scientific, technical, or other specialized knowledge." Fed.R.Evid. 702. On the contrary, identifying music is a reflexive daily process for millions of radio listeners, amateur karaoke singers, and fans of Name That Tune reruns. See Fed.R.Evid. 701 advisory committee's note ("[T]he distinction between lay and expert witness testimony is that lay testimony results from a process of reasoning familiar in everyday life, while expert testimony results from a process of reasoning which can be mastered only by specialists in the field.") (quotation marks and citations omitted). Moreover, many of Greene's identifications did not even require him to tax his memory: the live band announced the titles of several of the compositions they covered, and Greene transcribed other titles directly from a CD jewel case. Clearly, the district court correctly determined that Greene's evidence was admissible.

I agree with the court's conclusion that Greene's report and declaration were admissible, but I don't see why the court even had to find that Rule 701 was satisfied because it sees clear that Greene was offering facts, not opinions. Let's say that Greene testified that Roscoe's had a TV that was showing the movie "Titanic." Or let's say that Greene testified that Roscoe's had Salvador Dali's "The Persistence of Memory" hanging on the wall. Or let's say that Greene testified that Roscoe's had copies of the book "The Phantom Tollbooth" on their tables. In any of these cases, it would be clear that he was offering fact testimony rather than opinion testimony. So, when Greene's report and declaration stated that he heard songs such as "Be–Bop," why did the court even need to mention Rule 701, which covers opinions?

-CM

Picture (Im)Perfect: Court Of Appeals Of Iowa Finds No Problem With Admission Of Photos Of Subsequent Remedial Measures

Similar to its federal counterpart, Iowa Rule of Evidence 5.407 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered in connection with a claim based on strict liability in tort or breach of warranty or for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But what if evidence of a subsequent remedial measure is offered to prove the condition of the site of an accident? According to the recent opinion of the Court of Appeals of Iowa in Maiers v. Gansen, 2012 WL 469747 (Iowa App. 2012), such a use is proper. Based upon the facts of the case, I disagree.

In Gansen, Constance Maiers fractured her left elbow when she tripped on a raised portion of sidewalk in front of Priscilla Gansen's home. Maiers then filed a negligence action against Gansen, and the jury ultimately awarded Maiers $191,916.20, reduced to $163,128.77 based on the finding that Maiers was fifteen percent at fault. Gansen thereafter appealed, claiming that the district court erred under Rule 5.407 in allowing jurors to see photographs of the sidewalk taken after Maiers' fall showing the raised portion had been ground down to make the area safer for other pedestrians. 

Maiers countered that Gansen's argument oversimplified Rule 5.407. Specifically, Maiers asserted that she introduced the photographs to show not only the height of the sidewalk pad, but the overall condition and color of the sidewalk and to rebut Gansen's argument that the hazard was open and obvious.

The Court of Appeals of Iowa agreed with Maiers, finding that "[i]n the present action, the disputed issue was not merely that a displacement existed between the two sidewalk pads, but the extent of the displacement. The court then noted that

We considered a similar set of circumstances in [Eldridge v. Casey's Gen. Stores, Inc., 533 N.W.2d 569, 570 (Iowa Ct.App.1995)]. In that case, a plaintiff sought to admit photographs of a crack in the pavement which the defendant subsequently spray painted orange....Two days after the fall, the plaintiff's husband photographed the crack, using a ruler to measure the unevenness; the photographs also revealed the defendant's efforts to warn others of the tripping hazard by virtue of the orange spray paint...Like the case at bar, the photographs showing the defendant's remedial measure were the only images available....The district court noted Eldridge's right to depict the location of the fall, as well as the business operator's interest in excluding evidence of subsequent remedial measures because of the possible prejudicial effect. Because the court admitted the pictures to show the measurements, and advised Eldridge not to rely on the photos to draw attention to the operator's remedial measure, we concluded the decision "was a sensible compromise to balance the parties' competing interests." 

Gadsen countered that "Eldridge should not govern because the elevation in the pavement had not been altered, whereas here, the act of grinding down Gansen's sidewalk hindered the ability to measure the rise." The court disagreed, concluding that

We do not believe that this distinction undermines the applicability of the Eldridge holding. In the instant case, the district court admitted seventeen photographs, each showing different angles of the sidewalk. Some of the photographs included points of reference, such as a ruler, keychain, and shoe. In some of the photographs, the plaintiff placed a hardcover book across the surface of the ungrounded portion of the sidewalk pad, aligning the book so that its edge would simulate the lip of the cement before the repair. Doing so demonstrated the extent of the elevation before the remedial measure. The district court was correct in deciding that the exhibits assisted the jury by approximating the extent to which one sidewalk pad rose above the other. The photos not including measurements were properly admitted to show the similarity in color of the sidewalk segments. They corroborated witness testimony that the two surfaces, as well as the sides of the pads, were the same shade of grey, making it more difficult to perceive the change in surface height.

I respectfully disagree. The prejudicial effect of the evidence was obvious: The jury would use evidence of the repair to prove that (Gansen thought that) there was a problem with the sidewalk and the time of the accident. And what about the probative value? As the court noted, the sidewalk was altered before the photographs were taken, and Maiers used instrumentalities to simulate what the sidewalk looked like before the accident. But was this accurate? Couldn't there simply have been a diagram or some other type of demonstrative evidence to demonstrate the unevenness? It seems to me that the "compromise" struck by the court was anything but sensible.

-CM

Impeachable Offenses: District Of Colorado Addresses Admissibility Of Several Convictions

Federal Rule of Evidence 609(a) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

Meanwhile, according to Federal Rule of Evidence 609(b):

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.

In its recent opinion in Ulibarri v. City & County of Denver, 2012 WL 422605 (D.Colo. 2012), the United States District Court for the District of Colorado dealt with several convictions that were covered by either Rule 609(a) or Rule 609(b). So, did it get the analysis right?

In Ulibarri, Debbie Ulibarri brought an action against the City and County of Denver, claiming that sheriff's deputies failed to make required checks on her deaf son, who died while he was in county jail. Before trial, Ulibarri sought to exclude evidence of Ulibarri's prior convictions for theft in 1989, 1990, and 1991. The District of Colorado agreed, concluding that "[t]hese convictions [we]re more than ten years old and should not be admitted. Fed.R.Evid. 609(b)  In reaching this conclusion, the Court is unpersuaded by Defendants' arguments that...the probative value of the convictions outweighs their prejudicial impact." This seems like the correct conclusion, and, as noted above, the defendants actually would have needed to prove that the probative value of the convictions substantially outweighed their prejudicial effect to admit them.

Next, the court noted that Ulibarri was convicted of misdemeanor DUI in 2001, making evidence of the conviction inadmissible under Rule 609(a)(1) because it was not punishable by imprisonment in excess of one year and under Rule 609(a)(2) because DUI is not a crime of or false statement.

Finally, the court noted that Ulibarri was convicted of possession of a controlled substance in 2001. According to the court,

The possession charge...is admissible. While Ulibarri was not sentenced to incarceration, it was punishable by more than a year of imprisonment—making it a felony. She was sentenced to three years "to be served [in] the community corrections program," meaning she was released from the criminal system's custody in approximately April 2004. This conviction is not more than ten years old,...and it may be admitted into evidence—but only to impeach Ulibarri's credibility. In reaching this conclusion, the Court rejects Plaintiffs' intimation that admitting evidence of the conviction for this purpose will be more prejudicial than probative.

Structurally, this conclusion is correct, but I don't know that I agree with the substance. Possession of a controlled substance doesn't have much bearing on witness credibility. The conviction was relatively old. And Ulibarri didn't have direct knowledge of what happened to her son in jail, so her credibility wasn't central to the case. Given these facts, I think that the conviction probably should have been deemed inadmissible.

-CM

Just The Facts: EDNC Applies Rule 414 In Limited Fashion In Child Molestation Case

Federal Rule of Evidence 414(a) provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, when are prior acts of child molestation relevant, and when are they irrelevant? And, when is the probative value of such acts outweighed by the danger of unfair prejudice? These were the questions addressed by the United States District Court for the Eastern District of North Carolina in its recent opinion in United States v. Mason, 2012 WL 380325 (E.D.N.C. 2012).

In Mason, Frederick Mason was charged with child molestation. Before trial, the prosecution informed defendant's counsel of its intent to seek to introduce evidence of defendant's 1998 indecent liberties convictions, including testimony of the investigators and victims. Mason thereafter filed a motion in limine that sought to preclude the prosecution from presenting this evidence.

In response to this motion, the United States District Court for the Eastern District of North Carolina found that the evidence was preliminarily admissible under Federal Rule of Evidence 414(a). That said, the court then found that Rule  414(a) evidence is still subject to Federal Rule of Evidence 403, which provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

The court then noted that in applying this Rule, it had to

consider the following: (1) "the similarity between the previous offense and the charged crime"; (2) "the temporal proximity between the two crimes"; (3) "the frequency of the prior acts"; (4) "the presence or absence of intervening acts"; and (5) "the reliability of the evidence of the past offense."

Applying these five factors, the court easily concluded that evidence of Mason's prior convictions would be admissible at trial pursuant to  Rule  414(a). That left the question of whether Mason's prior victims would also be able to testify, with Mason claiming that testimony from the victims would be "inflammatory" and should be excluded. The Eastern District of North Carolina agreed, concluding that eliciting the testimony of the victims of defendant's prior convictions is too highly prejudicial and would constitute "inflammatory testimony...."

-CM

A Foolish Consistency, Take 2: 6th Circuit Finds Harmless With Admission Of Alleged Prior Consistent Statement

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

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

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....

As I noted yesterday, the main precondition for admitting a prior consistent statement under Rule 801(d)(1)(B) is that the prior statement be made before the improper influence or motive arose. That wasn't the case in the Diallo case that I posed about yesterday, and it also wasn't the case in United States v. Sperl, 2012 WL 373313 (6th Cir. 2012). But in each case, the court found harmless error. As with other rules of evidence, these cases prompt me to ponder how likely it is that a court would reverse a conviction based upon a Rule 801(d)(1)(B) violation.

In Sperl, Susan Sperl, the owner of the accounting-services firm SusanTax, was accused by the IRS of engaging in several schemes to help her clients falsify their tax returns. Eventually, she was convicted of seven counts of conspiracy and tax fraud.

After she was convicted, Sperl appealed, claiming, inter alia, that the district court erred by allowing for the admission of an alleged prior consistent statement by Bryan Wolf, whom Sperl had allegedly assisted in falsifying his federal income-tax returns. Wolf gave testimony indicating that Sperl intended to commit tax fraud, and, after Sperl attacked Wolf's credibility, the district court allowed the prosecution to present evidence of alleged prior consistent statements made by Wolf pursuant to Federal Rule of Evidence 801(d)(1)(B).

The problem for thr prosecution is that it apparently failed to prove that Wolf made his prior statements before he had a motive to lie, with the prior statements apparently coming after the IRS had already interviewed him. But while the court found apparent error, it deemed this error to be harmless, finding that there was sufficient other testimony and documentary evidence of Sperl's guilt.

Of course, this begs the question of what circumstances it would take for a court to reverse a conviction based upon the improper admission of an alleged prior consistent statement. It would seem to me that the problem for defense counsel in this situation is that an alleged prior consistent statement is, by its very nature duplicative. In other words, for a trial court to admit an alleged prior consistent statement, the witness needed to have already said basically the same thing on the witness stand. And thus, a court might have a hard time finding that improper admission of the prior statement being sufficiently harmful given its repetitive nature.

-CM

A Foolish Consistency: 2nd Circuit Finds No Plain Error With Admission Of Prior Consistent Statement

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

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

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....

Of course, the main precondition for admitting a prior consistent statement under Rule 801(d)(1)(B) is that the prior statement be made before the improper influence or motive arose. That wasn't the case in United States v. Diallo, 2012 WL 386421 (2nd Cir. 2012), so what did the Second Circuit do?

In Diallo, Amadou Diallo was convicted of one count of conspiring to commit Hobbs Act robberies and one count of committing a Hobbs Act robbery. After he was convicted, Diallo appealed, claiming, inter alia, that the district court erred by allowing for the admission of a prior statement by a witness for the prosecution. Diallo did not object to the admission of this statement at trial, meaning that the Second Circuit could only reverse for plain error. 

The Second Circuit did find error but no plain error. Unfortunately, the Second Circuit's opinion doesn't give us the content of the witness' prior statement, but it does tell us that the district court found that the statement was admissible under Federal Rule of Evidence 801(d)(1)(B) because he "did not have a motive to fabricate [when he made the statement] because he had not been charged, arrested, or given a cooperation agreement." 

The Second Circuit found, however, that the witness'

own testimony, however, indicate[d] that he decided to cooperate with the government when, along with his attorney, he turned himself in and approached the government to share his knowledge of the robberies. Because a motive to fabricate may well have existed when [the witness] made the original consistent statements, arguably there was no basis for admitting them into evidence.

That said, the court found that this error was not plain because the witness' statement were largely corroborated by another witness for the prosecution.

-CM