February 25, 2012
System Error: Court Of Appeals Of Minnesota Uses Invited Error Doctrine To Squelch Appeal
Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion....
That said, Minn.Stat. § 634.20 provides in relevant part that
Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence....
In McCoy, David McCoy was convicted of felony domestic assault by strangulation and gross-misdemeanor domestic assault. After he was convicted, McCoy appealed, claiming, inter alia, that the trial court erred by admitting evidence that the alleged victim had previously reported that she had been with McCoy for approximately a year and that she had been assaulted about once per month.
At trial, however, the court initially deemed evidence of this report inadmissible before finding that recordings of other reports were admissible. Thereafter, when the prosecution planned to play only 40 minutes of the approximately 90 minutes of tape of the alleged victim's reports, defense counsel said, "[I]f you are going to play any [of the tapes], I think it should all be played."
In addressing McCoy's appeal, the Court of Appeals of Minnesota found that the subject evidence might have been covered by § 634.20. But the court didn't even need to reach this conclusion because "[t]he invited error doctrine prevents a party from asserting an error on appeal that he invited or could have prevented in the court below." And, because any error by the trial court was invited by defense counsel, there were no grounds for a reversal.
February 24, 2012
Not Very Refreshing: Supreme Court Of Arkansas Seemingly Errs In Refreshing Recollection Ruling
If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
So, let's say that, in response to a forgetful child witness, the prosecutor reads questions and answers from a transcript of the witness' prior testimony aloud and asks the child to confirm that the transcript was accurate. Is this procedure proper? According to the recent opinion of the Supreme Court of Arkansas in Sullivan v. State, 2012 WL 580595 (Ark. 2012), the answer is "yes." I disagree.
In Sullivan, the facts were as stated above, with Cameka Sullivan convicted for permitting the abuse of her minor child and hindering the apprehension or prosecution of her child's abuser. Sullivan's child, Z.B., was the forgetful witness, and her prior testimony came at the trial of the man who was alleged to have actually abused her.
In her appeal, Sullivan claimed that the procedure used by the prosecutor was improper because it treated Z.B.'s prior testimony as prior consistent statements when it was in fact inadmissible hearsay. The State countered that Sullivan
mischaracterize[d] the State's use of Z.B.'s former testimony as a prior consistent statement. The State point[ed] out that it did not offer the former testimony into evidence at all but used it only demonstratively, after Z.B. had been impeached, to refresh her recollection of the circumstances of Lyons's abuse of L.B. some five years earlier. Thus, the State contend[ed] that it properly used the transcript of Z.B.'s former testimony to refresh her recollection pursuant to Rule 612 of the Arkansas Rules of Evidence....
The Supreme Court of Arkansas agreed, concluding that
A witness may occasionally consult a writing to refresh her memory, but it is her testimony and not the writing that is to be the evidence....However, a witness may not read a transcript into evidence, as that is beyond the bounds of refreshing recollection....To allow a witness's memory to be refreshed and the extent to which the witness may refer to writings to refresh his memory are all decisions within the sound discretion of the circuit court that are not reversed on appeal unless the circuit court has abused that discretion....Here, we defer to the circuit court's superior position to judge the extent to which the prosecuting attorney and witness were referring to the transcript rather than reading it into evidence. We cannot say the circuit court abused its discretion here as the eleven-year-old child witness had indeed been impeached and was testifying to matters she had testified to some five years previously at the age of six years.
I disagree with this conclusion for a few reasons, not the least of which is that a document used to refresh a recollection should not be read out loud so that the jury can hear it. As the Superior Court of New Jersey, Appellate Division, noted in Labas v. Esquivel-Molina, 2006 WL 2085411 (N.J.Super.A.D.,2006),
The correct practice when utilizing a writing for the purpose of refreshing a witness's recollection, is for the witness to first be given the opportunity to read the document privately, to himself or herself, and then inquire whether the contents of the writing has refreshed the witness's memory. This manner of proceeding is intended to prevent the unwarranted disclosure to the factfinder of potentially prejudicial incompetent evidence.
February 23, 2012
Character Of The Matter: Michigan Case Reveals Different Character Evidence Rule For Crime Victims
Federal Rule of Evidence 404(a)(2)(B) provides that
subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant’s same trait....
In People v. Malone, 2012 WL 555791 (Mich.App. 2012), Harvey Malone, Jr. appealed from his convictions for one count of carrying a concealed weapon and one count of felony-firearm, claiming that the trial court erred by precluding him from presenting character evidence concerning the alleged victim. If his case were governed by the Federal Rules of Evidence, he would have been correct. But his case wasn't governed by the Federal Rules.Instead, Malone's case was governed by the Michigan Rules of Evidence, which have two provisions dealing with the admissibility of evidence concerning the character of the alleged victim. 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....
and Michigan Rule of Evidence 404(a)(3) provides that
In a prosecution for criminal sexual conduct, evidence of the alleged victim's past sexual conduct with the defendant and evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease....
Because Malone was not charge with a homicide, Michigan Rule of Evidence 404(a)(2) did not apply, and because Malone was not charged with a sexual crime, Michigan Rule of Evidence 404(a)(3) did not apply. Thus, the Court of Appeals of Michigan found that Malone's appeal was without merit.
February 22, 2012
Shop Smart, Shop S-Mart: Court Of Appeals Of North Carolina Finds No Reversible Error Despite Character Evidence
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
So, let's say that a defendant is charged with larceny by antishoplifting or inventory control device based upon a theft at Target store. And let's say that the prosecutor asks the senior asset protection specialist at the Target store what drew his attention to the defendant and his wife. Can the witness testify that he focused upon the defendant and his wife because of prior crimes that they committed consistent with Rule 404(b)? Let's look at the recent opinion of the Court of Appeals of North Carolina in State v. Colon, 2012 WL 549383 (N.C.App. 2012).
In Colon, the facts were as stated above, with Fernando Colon convicted of larceny based upon allegedly concealing blu-ray movies in the electronics department as well as two identical Norton antivirus packages at a Target store. The senior asset protection specialist at the Target store followed the couple after they left the store, notified law enforcement, and matched the items taken to discarded security items found in the women's restroom.
At trial, the specialist
was asked what drew his attention to defendant and his wife. Shakeshaft testified that through cameras surveilling the exterior of the Target store, he could see the neighboring store—Home Depot. Defendant raised an objection on grounds of relevance. When the trial court overruled defendant, Shakeshaft testified that on multiple prior occasions he had observed defendant and his wife stealing the merchandise kept externally near Home Depot's garden center. Defendant raised a general objection but, again, was overruled.
After he was convicted, Colon appealed, claiming that, inter alia, this testimony should have been deemed inadmissible under Rule 404(b). The Court of Appeals of North Carolina didn't directly answer this question, instead somewhat elliptically stating that
"Rule 404(b) state[s] a clear general rule of inclusion of relevant evidence of other crimes, wrongs or acts by a defendant, subject to but one exception requiring its exclusion if its only probative value is to show that the defendant has the propensity or disposition to commit an offense of the nature of the crime charged." crime charged."
The court then found that if the admission of the specialist's testimony was error, it was harmless given the overwhelming other evidence of Colon's guilt.
But let's get back to the basic question: Was the admission of the specialist's testimony error? I think that it was. Why? I would say that it is because its only probative value was to show, "Once a thief, always a thief." The reason why the specialist suspected that the defendant and his wife were stealing items was irrelevant to the question of whether they were actually stealing in items and thsu otherwise lacking in probative value.
February 21, 2012
Is There A Doctor In The Courtroom?: Alabama Court Finds No Problem With Prosecution Expert Hearing Defense Experts' Testimony
Yesterday, I posted an entry about an expert defense witness not being allowed to testify concerning certain subjects pursuant to the "Rule on Witnesses" because he was exposed to the testimony of an expert witness for the prosecution before giving his own testimony. But isn't one main purpose of calling a defense expert (often) to have that expert rebut the testimony of the expert witness for the prosecution, meaning that we would want the defense expert to be exposed to the prosecution's expert's testimony before testifying (and vice versa)? This is of course true, which is why application of the "Rule on Witnesses" to expert witnesses (and, indeed, all witnesses) is discretionary as is made clear by the recent opinion of the Court of Criminal Appeals of Alabama in Thompson v. State, 2012 WL 520873 (Ala.Crim.App. 2012).
In Thompson, Devin Thompson was convicted of murdering Fayette Police Officers Arnold Strickland and James Crump and police dispatcher Leslie "Ace" Mealer during the course of a robbery. At trial, prosecution expert
Dr. Adam Craig, a forensic pathologist with the Alabama Department of Forensic Sciences, testified that based on his review of the autopsy reports, the photographs taken of the bodies, and the testimony of Charles James and Michael Brown, that [the victims] all died of multiple gunshot wounds.
After he was convicted, Thompson appealed, claiming, inter alia, that the circuit court erred in allowing Dr. Craig to remain in the courtroom during the testimony of defense expert witnesses Charles James and Michael Brown. The Court of Criminal Appeals of Alabama disagreed, citing a prior opinion for the proposition that
"'Although an expert witness may not express an opinion based on the opinion of another expert, he may base his opinion upon the facts testified to by another expert.'...‘Where the rule for the exclusion of witnesses from the courtroom is invoked, it is within the sound discretion of the trial court to allow any one of the witnesses to remain in the courtroom during the examination of the others and the exercise of this discretion is not reviewable on appeal.'..."
Accordingly, the court found that "[a]llowing Dr. Craig to be exempted from the operation of Rule 615, Ala. R. Evid., was "a matter within the sound discretion of the trial court."
February 20, 2012
You've Got Mail: Trial Judge Applies "Rule On Witnesses" To Circumscribe Defense Expert Testimony In Huguely Trial
You may have heard about the current prosecution of former University of Virginia lacrosse player George Huguely for the murder of fellow UVA lacrosse player Yeardley Love. It has been a case that brought the prosecutor to tears as he showed photographs of the victim's battered body to jurors during closing arguments. It has been a case in which prosecution and defense experts have clashed over whether the victim died from blunt force trauma to the head. And it has been a case in which the trial judge circumscribed the testimony of a key expert witness for the defense. In this post, I will address this last matter.
As reported by ABC News, the defense's final witness, Dr. Ronald Uscinski, a neurosurgeon, testified that Yeardley Love's skull and brain showed no evidence of blunt force trauma, which contradicted the prosecution's claim that Love died from blunt force trauma to the head after Huguely beat her severly and left her to die. Dr. Uscinski, however, was not allowed to offer opinion testimony about other subjects. Why? According to the article,
Virginia's "Rule on Witnesses" prohibits witnesses from being empowered with certain information before their testimony once the trial is in progress.
Prosecutor Warner "Dave" Chapman provided the judge with three emails from the defense team in which defense witness Uscinski is included. The emails reportedly included information that summarized prosecution witness Dr. Renu Virmani's testimony.
The third email originated from defense attorney Rhonda Quagliana and was sent to three people, including Uscinski. It included information about CPR and blood reperfusion, tissue damage caused when blood returns to the tissue after a period when oxygen has been lacking.
Dr. Uscinski told the judge he did not recall seeing the e-mails, but that didn't prevent the judge from applying the "Rule on Witnesses" to preclude the doctor from testifying concerning certain subjects, such as CPR.
So, what is the Rule on Witnesses? Well, at the federal level, it is part and parcel of Federal Rule of Evidence 615, which provides that
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.
Of course, this Rule looks like a sequestration rule, and it mainly is, but it also precludes later witnesses from learning about the testimony of prior witnesses before testifying. Last year, I posted an entry about the opinion of the D.C. Court of Appeals in Marshall v. United States, 2011 WL 1044594 (D.C. 2011) (Download Marshall), which discussed D.C.'s "Rule on Witnesses." As that court explained, it,
Under the rule, a trial court, acting on its own or at the request of a party, has broad discretion to take steps aimed at preventing the intentional or unintentional distortion of testimony by, for example, requiring witnesses to remain outside the courtroom except when they are testifying, directing witnesses not to communicate with each other about the substance of their testimony, and prohibiting the parties and counsel from sharing information about one witness' testimony with another witness.
Like D.C., Virginia does not have codified rules of evidence, but as the Huguely case makes clear, Virginia, like all U.S. jurisdictions, applies a "Rule on Witnesses."
February 19, 2012
Another State Of Mind: Supreme Court Of Arkansas Finds Statement Regarding Threat Admissible Under Rule 803(3)
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
So, does a declarant's statement that there were threats against her life admissible under Rule 803(3)? According to the recent opinion of the Supreme Court of Arkansas in Wedgeworth v. State, 2012 WL 503886 (Ark. 2012), the answer is "yes." I disagree.
In Wedgeworth, James Wedgeworth was convicted of capital murder based upon the shooting death of Megan Harbison. Wedgeworth admitted that he shot Harbison, but he claimed that at the time of the shooting he was psychotic and therefore not guilty by reason of mental defect.
After he was convicted, Wedgeworth appealed, claiming, inter alia,
that the circuit court erred in admitting hearsay when it overruled his objection to the testimony of Harbison's father Nathan DuPree that Harbison came to him for help because her relationship with Wedgeworth was beyond her ability to handle and because there were "threats against her life...." Specifically, the following exchange occurred at trial:
Q. Okay. What, and, and, and as you appreciated her comments to you what was she seeking from you?
A. She wanted to get out, she was seeking help to escape from a, a situation that was bigger than she was able to deal with.
Q. And, and was that something that she articulated to you or something you just perceived, or how did you come to that, that belief insofar as what her purpose was in coming to you as her father?
A. Because she told me that there were threats against her life.
Wedgeworth claimed that Dupree's final answer which referenced Harbison's statement about "threats to her life" was inadmissible hearsay. In response, the Supreme Court of Arkansas cited to its prior opinion in MacKool v. State, 365 Ark. 416 (Ark. 2006), for the proposition that
[a]n expression of fear falls within the hearsay exception of Rule 803(3). See, e.g., Hodge v. State, 332 Ark. 377, 965 S.W.2d 766 (1998) (holding that statements that victims had told witnesses they were afraid of Hodge, one made three weeks before death and one made two months before death, were not too remote in time, were admissible under Ark. R. Evid. 803(3), and were relevant); Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993) (stating that witness' testimony that he found the victim crying and when he asked what was the matter, she said, “He's going to kill me” was admissible as a present-sense impression showing the victim's fear under Ark. R. Evid. 803(3)).
The court then found that "[l]ikewise, the reference to a threat in this case was admissible as a present-sense impression showing the victim's fear under Rule 803(3)."
With due respect to the Supreme Court of Arkansas, this analysis is misguided. As the language of Rule 803(3) makes clear, it allows for statements to be admitted if those statements reveal the present state of mind of a speaker when she made the statement. Conversely, the Rule does not allow for the admission of statements of memory offered to prove past events. In both Hodge and Brenk, the court properly allowed statements to come in because they reflected the state of mind of the speaker when the speaker made the statement. In Wedgeworth, the court improperly allowed Harbison's statement to be introduced to prove a past event remembered -- the alleged threat by Wedgeworth. Of course, the argument could be made that in Brenk, the declarant's statement referenced a past event, presumably a threat by the defendant in the case. But to the extent that it did, it did so indirectly rather than directly and only to prove the state of mind of the declarant. Conversely, the statement in Wedgeworth directly referenced the alleged threat by Wedgeworth.