EvidenceProf Blog

A Foolish Consistency?: "An Unneeded Hearsay Exception" & The Case Against The Rule 801(d)(1)(B) Amendment

Currently, Federal Rule of Evidence 801(d)(1)(B) provides 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....

On the other hand, as I have noted on a few prior occasions (see here, here, and here), Minnesota Rule of Evidence 801(d)(1)(B) is broader, providing 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...(B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness...

In other words, under the Minnesota Rule, a witness's prior consistent statement can be admitted as non-hearsay even if there is no express or implied charge that the witness recently fabricated his trial testimony or acted from a recent improper influence or motive in so testifying. Under a proposed amendment, however, Federal Rule of Evidence 801(d)(1)(B) would be functionally similar to Minnesota Rule of Evidence 801(d)(1)(B). So, why has this change been proposed, and does it make sense?

First, let's look at the proposed language of the new Rule. The amended Federal Rule of Evidence 801(d)(1)(B) would provide 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 (i) 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 (ii) otherwise rehabilitates the declarant’s credibility as a witness.... 

The italicized language is the proposed addition to Federal Rule of Evidence 801(d)(1)(B), and allow me to explain its import. Under the current version of the Rule, a prior consistent statement is admissible as nonhearsay only if there is an express or implied charge that the witness recently fabricated his trial testimony or acted from a recent improper influence or motive in so testifying. So, let's say that Wiliaml, a witness for the prosecution, testifies, "I saw [Defendant] shoot the victim." Then, let's say that defense counsel asks, "Isn't it true that you are testifying today based upon a grant of immunity?" The implication of the question is that the offer of immunity is the reason why William is incriminating [Defendant], which is why the prosecution could then admit statements that William made incriminating [Defendant] before being approached regarding a grant of immunity.

Conversely, let's say that William testified, and then defense counsel:

(1) asks WIlliam whether he has a prior burglary conviction from 2006;

(2) asks William whether he cheated on his taxes in 2007; or

(3) asks William whether he has held a grudge against [Defendant] for years.

With these or similar questions, defense counsel is certainly impeaching the credibility of WIlliam, but defense counsel is not claiming that there was a recent fabrication or a recent improper influence or motive. Indeed, all of the above questions relate to events that occurred years ago. So, under the current Federal Rule of Evidence 801(d)(1)(B), none of these forms of impeachment would allow for the admission of other statements of William consistent with his trial testimony as nonhearsay.

But, under the amended Rule 801(d)(1)(B), because each of these questions impeach William's credibility, William's other consistent statements would be admissible nonhearsay under new subsection (ii) because they would rehabilitate his credibility.

So, does this make sense? In the recent article, An Unneeded Hearsay Exception, Laird Kirkpatrick, the Louis Harkey Mayo Research Professor of Law at the George Washington University Law School, argues that the answer is "no." And he's not alone. As he notes,

In a survey of federal judges conducted by the committee, 72 percent said they believed the proposed amendment would lead to more prior consistent statements being admitted, yet less than half of them thought that this would be a good result.

You can read the full article for all of his reasoning, but I will focus on one of his arguments here. Professor Kirkpatrick notes that

The amendment could lead to an increased number of reversals in cases in which prior consistent statements are found to have been erroneously admitted. Under current law, if a prior consistent statement is admitted improperly, for example by relating facts going beyond the trial testimony, courts often find the error to be harmless by relying on the fact that the statement was not admitted for substantive purposes. But under the proposed amendment such statements would become substantive evidence upon which the jury could rely, making a finding of harmless error more difficult.

This argument relates to the rationale for why the current amendment has been proposed:

The proposal to amend Rule 801(d)(1)(B) originated with Judge Frank W. Bullock, Jr., when he was a member of the Standing Committee. Judge Bullock proposed that Rule 801(d)(1)(B) be amended to provide that prior consistent statements are admissible under the hearsay exemption whenever they would be admissible to rehabilitate the witness’s credibility. Under the current Rule, some prior consistent statements offered to rehabilitate a witness’s credibility—specifically, those that rebut a charge of recent fabrication or improper influence or motive—are also admissible substantively. But other rehabilitative statements—such as those that explain a prior inconsistency or rebut a charge of faulty recollection—are not admissible under the hearsay exemption, but only for rehabilitation. There are two basic practical problems in distinguishing between substantive and credibility use as applied to prior consistent statements. First, the necessary jury instruction is almost impossible for jurors to follow. The prior consistent statement is of little or no use for credibility unless the jury believes it to be true. Second, and for similar reasons, the distinction between substantive and impeachment use of prior consistent statements has little, if any, practical effect. The proponent has already presented the witness’s trial testimony, so the prior consistent statement ordinarily adds no real substantive effect to the proponent's case.

In other words, the amendment is not based upon the belief that consistent statements offered to rehabilitate are reliable or important enough to be considered nonhearsay; instead, the amendment is based upon jurors ignoring jury instructions. That wouldn't make the new Rule unique; the Bruton doctrine is also premised upon the belief that jurors will ignore jury instructions in a certain context. But what the Bruton doctrine does it to deem inadmissible statements that jurors are likely to use for improper purposes while the amended Rule 801(d)(1)(B) deems admissible statements under similar circumstances. I strongly disagree with this reasoning and agree with the majority of judges to argue against the amended Rule.

-CM

 

Cause I'm a Criminal: Michigan Case Reveals How Criminal Defendants Get Preferential Treatment Under Rule 803(8)(a)(iii)

Recently, I completed the first round of edits on my article, Justice of the Peace?, and a large focus of the article is about how the rules of evidence, save for Federal Rule of Evidence 404(a)(2)(C), treat criminal defendants at least as well as their civil counterparts. And, as the recent opinion of the United States District Court for the Eastern District of Michigan in Santander Consumer USA, Inc. v. Superior Pontiac Buick GMC, Inc., 2013 WL 27921 (E.D.Mich. 2013), makes clear, Federal Rule of Evidence 803(8)(a)(iii) is actually a Rule that treats criminal defendants much better than their civil counterparts.

In Santander Consumer, pursuant to an Agreement, the plaintiff provided the financing that allowed customers to purchase cars from dealerships such as the defendant's dealership.

For several years, the parties appeared to have no problems with their obligations under the Agreement. But then customers started to default on their car payments and Plaintiff had the cars repossessed and had the majority of the cars sold at auction. Through this repossession and auctioning off, Plaintiff allegedly became aware that the cars that were the subjects of the contracts that it purchased from Defendant did not have the equipment that the Defendant allegedly represented the cars were originally equipped with. Plaintiff states that it learned of these discrepancies when it compared the Bookout Sheets with the Condition Reports. Plaintiff states that, because it paid for a contract that was supposed to represent a car with more equipment options, it overpaid for the contract and received a lower amount when the car was sold at auction than it should have received.

In February, 2008, Sergeant Kenneth Muscat of the Dearborn Police Department investigated alleged fraudulent activity at the defendant's dealership and specifically the activities of Liliana Sinishtaj, who "admitted to 'power booking,' the vehicles, that is, representing that certain equipment was on the cars when that equipment in fact was not, all to increase the value of the car." As part of that investigation, Muscat discovered that Sinishtaj had pleaded guilty to nine counts of felony-unauthorized credit application, a fact that Muscat included in his investigation report.

Both parties subsequently moved for summary judgment, with the plaintiff attaching Muscat's investigation report to its motion. The defendant countered that the investigation report was inadmissible hearsay, but the Eastern District of Michigan disagreed, finding that it was admissible under Federal Rule of Evidence 803(8)(a)(iii), which provides an exception to the rule against hearsay for 

A record or statement of a public office if:  

(A) it sets out:....

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation....

As the language of Rule 803(8)(a)(iii) makes clear, the report was admissible because it was offered "in a civil case...." Conversely, if the report were offered against Sinishtaj in a criminal case against her, it would be admissible under the plain language of the Rule. On the other hand, if there were a criminal case against Sinishtaj and the report were helpful to her case, it would be admissible under the Rule because it would be offered "against the government in a criminal case...."

-CM

What Kind of Crime? Utah Court Finds Possession of Child Pornography Not Child Molestation Under Rule 414

As noted in yesterday's post, Federal Rule of Evidence 414(a),

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, what exactly counts as "child molestation" for Rule 414(a) purposes? Let's take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).

In Gardner, Bryan Gardner was charged with a crime of child molestation. Before trial, the United States filed a Notice of Intent to Introduce Evidence Pursuant to Rule 414. One category of evidence that the government intended to introduce was evidence related to Gardner's 2005 convictions on two counts of sexual exploitation of a minor based upon his possession of videos containing images of naked prepubescent boys.

In response to the government's Notice, Gardner responded that evidence relating to his 2005 conviction was not evidence that he committed "child molestation" as defined in Rule 414. The court agreed, finding that

Mr. Gardner plead guilty in June 2005 to two counts of Sexual Exploitation of a Minor in violation of Utah Code Annotated § 76–5a–3 (renumbered in 2011 to § 76–5b–201) which prohibits possession of child pornography. Both the state and federal statutes define child pornography as the visual depiction of a minor engaging in sexually explicit conduct. See Utah Code Ann. § 76–5b–103(1); 18 U.S.C. § 2256(2)(A). But Utah Code Annotated § 76–5b–103(10)(f) (formerly § 76–5a–2(8)(f)) has a definition of "sexually explicit conduct" not found in § 2256(2)(A): "the visual depiction of nudity or partial nudity for the purpose of causing arousal of any person." The government argues that the type of visual depiction described in § 76–5b–103(10)(f) is covered by the federal definition of sexually explicit conduct: "lascivious exhibition of the genitals" found in § 2256(2)(A)(v). The court disagrees. The Utah code definition does not require that the genitals be exhibited, yet that requirement is part of the federal definition. For that reason, the court concludes that Mr. Gardner's 2005 conviction is not admissible under Rule 414....

(The court did, however, find that evidence relating to the 2005 convictions was admissible under Federal Rule of Evidence 404(b)).

-CM

Compromising Position: 11th Circuit Case Involves Rare Intersection Between Rules 408(a) & 413(a)

Federal Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and  

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

Meanwhile, 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.

Usually, these Rules are two ships passing in the night, but they had a rare intersection in the recent opinipon of the Eleventh Circuit in United States v. Levinson, 2013 WL 49718 (11th Cir. 2013).

In Levinson, Allen Levinson was convicted for (1) using a computer to attempt to persuade, induce, entice, and coerce a minor to engage in sexual activity; and (2) as a registered sex offender, committing a felony offense involving a minor. After he was convicted, Levinson appealed, claiming, inter alia, that the district court erred by allowing the prosecution to admit evidence that he settled a civil action that his daughter brought against him for sexually abusing her when she was a minor.

Had Levinson objected to the admission of this settlement evidence at trial, he likely would have had a point because such evidence almost certainly was inadmissible under Federal Rule of Evidence 408(a). But because Levinson failed to object at trial, the Eleventh Circuit found that he failed to preserve the issue for appellate review.

Moreover, the court found no separate issue with the substance of the settlement evidence because Levinson was accused of child molestation and the daughter's prior lawsuit against him alleged that he engaged in acts of child molestation against her. Accordingly, the evidence was admissible under Federal Rule of Evidence 414(a).

-CM

"Ancient" History: Court of Appeals of Kentucky Doesn't Have to Apply Ancient Documents Rule in Adverse Possession Case

Adverse possession cases are always fun, that is, unless you are the property owner whose land a squatter allegedly adversely possessed.

Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.

And while they say that possession is 9/10ths of the law, the recent opinion of the Court of Appeals of Kentucky in Perkins v. Howard, 2013 WL 45570 (Ky.App. 2012), reveals that fortune often doesn't favor the alleged adverse possessor.

According to the court in Howard,

The Perkinses and the Howards are owners of adjoining parcels of real property in a rural area of Lawrence County near Webbville. The Perkins property was part of a farm that had been owned by John W. Perkins, Melvin Perkins' father. Melvin and Mary Perkins acquired their tract through a deed dated September 3, 1989, and recorded in Deed Book 227, p. 551. The Howards are the undivided owners of the adjacent property, which was originally owned by Thomas Howard. After his death in 1973, his 14 children inherited the property, and they and their heirs continue to own the property jointly by the undivided whole.

The dispute in this case concerns the boundary between the two tracts. Specifically, the Perkinses claim that the boundary described in their deed and their predecessor deeds encompasses approximately 7.39 acres of the property claimed by the Howards. The Perkinses also allege that they have adversely possessed an additional 4.52 acres of the Howard property beyond the line set out in the deed descriptions.

The trial court found for the Howards, concluding, inter alia, that the Perkinses failed to establish that they satisfied the requirements for adverse possession: "To prove the elements of adverse possession, the Perkinses' possession must have been hostile, under a claim of right, actual, exclusive, continuous, open and notorious for a period of at least fifteen years."

A big part of the problem for the Perkinses at trial was the fact that the Howards introduced copies of a rental ledger that showed rental payments from the Perkinses from 1981-1984, establishing that the Perkinses' possession of the disputed property was not open and notorious. In other words, the possession was not adverse.

On appeal, the Perkninses claimed that the ledger was not properly authenticated, and the Howards responded that the ledger was an ancient document under Kentucky Rule of Evidence 901(b)(8) because it was, inter alia, at least 20 years' old. The Court of Appeals of Kentucky found that it did not resolve the issue because "[a]lthough the Perkinses cite[d] to the record where they objected to introduction of the ledger pages, they fail to articulate a sufficiently definite point of objection which was raised before the trial court."

-CM