January 18, 2013
Cart Before the Horse?: D.C. Court of Appeals Rejects Defendant's Conditional Relevance Appeal
Federal Rule of Evidence 104(b) provides that
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (emphasis added).
In Hagraves v. United States, 2013 WL 173228 (D.C. 2013), a defendant appealed from his conviction, claiming that the trial court erred in precluding him from doing a conditional admission pursuant to the last sentence of Rule 104(b). So, what did the court find?
In Hagraves, Ronald English and other defendants were charged by indictment with multiple offenses arising from a shooting and homicide on March 7, 2006, in the vicinity of 30th and P Streets, S.E. At trial, English sought to introduce evidence that the homicide victim, Michael Beckham, had a violent character.
The trial judge allowed English to present this evidence of Beckham's violent character because it was relevant to his claim that he killed Beckham in self-defense. But the judge ruled that English first had to lay the predicate for its admission by presenting some evidence that he had acted in self-defense. As a practical matter, this ruling made it necessary for English to take the stand and explain his actions to the jury before, rather than after, the jury heard the other defense witnesses' testimony about Beckham's reputation and violent acts.
After he was convicted, English appealed, claiming, inter alia, that the trial judge's ruling "impaired the persuasiveness of his testimony" and thus "infringed his constitutional rights to the effective assistance of counsel and to present a defense."
English's appeal was two-pronged. He claimed both (1) that the trial judge erroneously assumed that he could not admit the character evidence before English presented evidence that he was acting in self-defense; and (2) that the trial judge should have allowed him to put the cart before the horse by admitting the character evidence on the condition that the proof be introduced later. The D.C. Court of Appeals disagreed, finding that
In our view the record affirmatively shows that the trial judge did not labor under any misapprehension that an "ironclad rule" governed his decision. On the contrary, the judge was aware of his discretionary authority and exercised it. He considered allowing English to introduce the evidence of Beckham's violent acts conditionally, recognizing that he could strike the evidence if need be. Ultimately, however, the judge found that English's preference was outweighed by the risk of unfair prejudice to the government from the admission of evidence powerfully besmirching the decedent's character in the event English failed to present evidence that he acted in self-defense-prejudice that would not necessarily be dispelled by the remedy of formally striking the prior bad act evidence and instructing the jury to disregard it.
January 17, 2013
Preemptive Strike: 3rd Circuit Finds Defendant Who Preemptively Introduced Drug Conviction Couldn't Appeal
Federal Rule of Evidence 609(a)(1) 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....
There has been a boatload of litigation surrounding Rule 609(a)(1), and that has led to some interesting issue regarding its applicability and appealability. Two of those issues were at the heart of the Third Circuit's recent opinion in United States v. Gaston, 2013 WL 142270 (3rd Cir. 2013).In Gaston, Edres Gaston was charged with possession of a firearm by a convicted felon. Before trial,
The government filed a motion in limine to admit evidence of Gaston's prior felony convictions as impeachment evidence under Federal Rule of Evidence 609(a). These convictions included: (1) an October 31, 2000 conviction for possession of controlled substances with intent to deliver; (2) an August 20, 2001 conviction for carrying a firearm without a license; (3) a January 26, 2005 conviction for possession of controlled substances with intent to deliver; and (4) a January 27, 2005 conviction for possession of controlled substances with intent to deliver.
And while the court deemed the firearm conviction inadmissible to impeach Gaston, it deemed all three drug convictions admissible under Rule 609(a)(1). This leads to the first Rule 609(a)(1) issue, which is that "[t]he District Court limited the government to asking about “the fact of the conviction and the date of the conviction." This is something that courts fairly typically do to allow the jury to see the probative value of prior convictions without being tainted by their prejudicial effect. Accordingly, when Gaston appealed the Rule 609(a)(1) ruling after he was convicted, the Third Circuit disagreed, finding that
the District Court minimized any prejudice that may have resulted from the admission of the convictions by limiting the government to asking about the fact of the conviction and the date of the conviction and issuing a limiting instruction that directed the jury that Gaston's prior convictions were not to be considered for any purpose other than assessing his credibility.
As it turns out, however, the Third Circuit found that it only had to address the admissibility of two of Gaston's prior convictions. This was because "[o]n direct examination, Gaston preemptively admitted to one of the felony drug crimes." Therefore, as Gaston himself acknowledged, he waived the right to challenge its admissibility on appeal pursuant to Ohler v. United States, 529 U.S. 753, 760 (2000), which held that a "defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error."
January 16, 2013
No Stop Signs, Speed Limit: "Mechanical Trace" Theory & Whether Speed Limit Signs Constitute Hearsay
Yesterday, I got an interesting e-mail from a student asking me whether a speed limit sign constitutes hearsay. Federal Rule of Evidence 801(c) states that
"Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
In turn, Federal Rule of Evidence 801(a) indicates that
"Statement" means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
So, is a speed limit sign hearsay? As I said, it is an interesting question.Let's start with the opinion of the Supreme Court of Nevada in Stephans v. State, 262 P.3d 727 (Nev. 2011). In Stephens, the court noted that
Courts elsewhere have divided on whether price tags amount to hearsay when offered to prove value. Some courts have accepted price tag evidence as a matter of "fact," like an item's color or shape, or as circumstantial evidence, not a direct assertion, of value....[FN3]
FN3. These cases have echoes of Wigmore's "mechanical trace" evidence discussed in United States v. Snow, 517 F.2d 441 (9th Cir.1975), that the "name on a dog collar to prove ownership of [the] dog" or the numbers on a license plate make no assertion of fact, and so are not hearsay at all but circumstantial, identifying evidence. Id. at 443–44 (citing 1 Wigmore on Evidence §§ 148–157 (3d ed. 1940)). Snow and its progeny are criticized in 30B Michael H. Graham, Federal Practice & Procedure: Evidence § 7006, at 94–99 (4th ed. 2006).
In turn, in Snow, the Ninth Circuit dealt with the admissibility of a name tape and found that
the hearsay rule "signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination." 5 Wigmore s 1362 (Chadbourn rev. 1974). To exclude the name tape as hearsay, therefore, it would be necessary to find that the tape is a testimonial assertion of the proscribed sort which is not admissible under any exception to the hearsay rule.
It is clear that under Wigmore's classification scheme the name tape constitutes an evidentiary fact, other than an assertion "from which the truth of the matter asserted is desired to be inferred," 1 Wigmore, s 25 (3rd ed. 1940), which he describes as a "mechanical trace" designed to show that at some previous time a certain act was or was not done. 1 Wigmore s 148 (3rd ed. 1940). A "mechanical trace," thus, is a type of circumstantial evidence. Examples offered by Wigmore of "mechanical traces" are, inter alia, the presence upon the person or premises of articles, fragments, stains, tools, brands on animals and timber, tags, signs, license plates, fingerprints, foot marks, and documents. 1 Wigmore ss 148-157 (3rd ed. 1940).
The firmness with which we are able to assert that under Wigmore's analysis the name tape before us is circumstantial evidence is strengthened when the cases are reviewed which he collected to illustrate that tags, signs, etc. are "mechanical traces." These cases include instances in which the uniform of the driver of a vehicle was admissible to prove the identity of his employer, or the name on a wagon or truck to prove ownership of the vehicle, the name on a dog collar to prove ownership of dog, the wearing of a uniform to prove employment by the persons whose name appears on the uniform, and lettering on a locomotive to prove its ownership. (emphases added).
Under this "mechanical trace" theory, then, the speed limit sign would not constitute hearsay. But does this "mechanical trace" theory hold water? Some courts conclude that the answer is "no." While the court in Stephans cited to some courts adopting it, it also noted that
Other courts hold that testimony about the price stated on a price tag, when offered as evidence of value, is hearsay. See People v. Codding, 191 Colo. 168, 551 P.2d 192, 193 (1976) (concluding that price tags constitute a written record prepared by someone other than the witness and were offered to prove the truth of the matter asserted—the retail cost of the merchandise), superseded by Colo.Rev.Stat. § 18–4–414 (1985) (creating a hearsay exception for price tags); State v. McPhie, 104 Idaho 652, 662 P.2d 233, 236 (1983) (price tags are hearsay when testimony regarding value is based on them); People v. Mikolajewski, 272 Ill.App.3d 311, 208 Ill.Dec. 443, 649 N.E.2d 499, 504 (1995) (price tags are hearsay when offered to prove the price stated on them); Robinson v. Com., 258 Va. 3, 516 S.E.2d 475, 478 (1999) (price tags are hearsay).
The court then noted, however, that these courts routinely find price tags admissible under the business records exception to the rule against hearsay, and it is easy to see courts finding speed limit signs admissible under the public records exception to the rule against hearsay even if they constitute hearsay. The Stephans court also cited to an opinion in which another court concluded that courts "can properly take judicial notice of the fact that price tags on retail clothing generally reflect the market value of the clothing...."
And indeed, there have been plenty of opinions in which courts have taken judicial notice of speed limits, which adds another wrinkle to the speed limit sign analysis. For instance, in State v. Smith, 2006 WL 2663936 (Ohio App. 12 Dist. 2006), the court found "that the speed limit on streets and roadways in the state of Ohio is set by statute, and not by speed limit signage."
And then there's G. Michael Fenner's article, Law Professor Reveals Shocking Truth About Hearsay, 62 UMKC L. Rev. 1 (1993), in which he notes that
There must be a statement by a person. Hearsay does not apply to a clock telling time, a bloodhound barking up a tree at a suspect, a radar device depicting speed, or a declaration by a stop sign telling a driver to "STOP"!
This is the same conclusion that I would expect a court to apply to a speed limit sign. But does this analysis make sense? Professor Fenner is not so sure. In the article, he later notes:
Above, in my discussion of the definition of hearsay, I wrote this: “Hearsay does not apply to a clock telling time, a bloodhound barking up a tree at a suspect, a radar device depicting speed, or a declaration by a stop sign, telling a driver to 'STOP'!" I gave this reason: It cannot be hearsay unless there is a statement by a person. That is not a good enough reason. It is the reason routinely given, but it is not good enough.
Why not? Take the clock, please. Someone--an out-of-court declarant--did set the clock; and in the process of doing so made an assertion regarding the time; and that assertion, affected by the intervening mechanical operation of the clock, may be offered to prove the truth of the assertion. The assertion by the person setting the clock may be: "This is the correct time." Or, the assertion by one about to be late for work and changing his or her watch to show an incorrect time may be this lie to his or her employer: "This is what time I thought it was." But we let it go. Why do we do this?
January 15, 2013
I'm on a Mexican, Whoa-Oh: 7th Circuit Finds Testimony About Mexican Methamphetamine Was Improperly Admitted
Federal Rule of Evidence 401 provides that
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Moreover, Federal Rule of Evidence 403 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.
So, let's say that in a case involving a Mexican citizen, a DEA officer testifies as follows:
There's two different types of methamphetamine that we see here in the United States. One is what we call...Mexican methamphetamine because it's made by Mexican nationals. Typically, either south of the border in Mexico or in super labs on the west coast like in California. The other kind of methamphetamine that we see is, for lack of a better term, homemade methamphetamine. And that's the stuff that is made in small labs, box labs we call them sometimes, that you can make it in your kitchen using...pseudoephedrine or pseudophed.
Is such evidence admissible under these Rules? According to the recent opinion of the Seventh Circuit in United States v. Ramirez-Fuentes, 2013 WL 28261 (7th Cir. 2013), the answer is "no."
In Ramirez-Fuentes, the facts were as stated above, with the defendant, a Mexican citizen and U.S. national being charged with one count of possession with the intent to distribute five hundred grams or more of methamphetamine and one count of possessing firearms in furtherance of a drug trafficking crime. At trial, the DEA agent gave the testimony referenced above, prompting the defendant to appeal after he was convicted.
On appeal, the government claimed that the testimony by the Agent (Agent Johnson) was relevant to whether the defendant possessed the methamphetamine with the intent to distribute. The Seventh Circuit disagreed, finding that
At no point during his testimony did Agent Johnson state that "Mexican methamphetamine" is the only type of methamphetamine produced for distribution or the most common type of methamphetamine distributed in the United States. Moreover, Agent Johnson testified separately to the quantity and purity of the recovered methamphetamine. If the distinction between the two types of methamphetamine was important to the discussion of quantity or purity, which is something the government has been unable to establish, then Agent Johnson could have just as easily removed his reference to "Mexican methamphetamine" and "Mexican nationals" and testified that in his opinion, the type of methamphetamine at issue in this case was of a type generally produced in large quantities in "super labs" rather than in small, box labs using pseudoephedrine....But the fact that the methamphetamine at issue is classified as "Mexican" or that it may have been produced by "Mexican nationals" did nothing to show that [the defendant] possessed the methamphetamine with the intent to distribute.
Rather, the Seventh Circuit concluded that
the references to "Mexican methamphetamine" invited the jury, albeit implicitly, to consider [the defendant]'s nationality in reaching its decision in the case. The jury could have consciously or subconsciously found it more likely that [the defendant], a Mexican citizen, would have possessed the methamphetamine with the requisite intent because of Agent Johnson's suggestion that "Mexican nationals" produce methamphetamine for distribution. Our cases have made clear that a jury cannot consider a defendant's race, ethnicity, or national origin in reaching a verdict....Thus, even if the evidence was at all relevant under Rule 401, it should have nonetheless been excluded under Rule 403 because of the danger of unfair prejudice inherent in its admission.
January 14, 2013
The Character of the Matter: Court of Appeals of Idaho Finds Sexual Morality Evidence Should Have Been Admitted
In my forthcoming article, Justice of the Peace?, I note that
it is generally understood that character evidence is especially unreliable for a variety of reasons, including the usual sources of character evidence. "Numerous courts have expressed the same opinion as that espoused by the Vermont Supreme Court in" Wright v. McKee, in which it held that character evidence "is uncertain in its nature-both because the true character of a large portion of mankind is ascertained with difficulty, and because those who are called to testify are reluctant to disparage their neighbors,-especially if they are wealthy, influential, popular, or even only pleasant and obliging." Of course, when character evidence does not come from neighbors, it often comes from family members, who are especially unreliable given their biases in favor of (and sometimes against) their sons, daughters, parents, brothers, and sisters.
And yet, courts continually allow criminal defendants to present character evidence under the so-called "mercy rule," which also allows for prosecutors to respond in kind. As noted in the recent opinion of the Court of Appeals of Idaho in State v. Rothwell, 2013 WL 53731 (Idaho App. 2013), the vast majority of courts in child molestation cases allow defendants to present evidence of their sexual morality with children. But does this make any sense?
In Rothwell, Randall Rothwell was charged with lewd contact with a minor under 16. According to the prosecution, that lewd contact consisted of acts that the 18 year-old Rothwell committed against a six year-old victim.
At trial, defense counsel informed the court that he intended to call two of Rothwell's friends to testify that in their opinions, based on their observations of his interactions with children, Rothwell was trustworthy with preteen children. The State objected. The district court determined that the proposed testimony was inadmissible because Rothwell's trustworthiness with children was not an element of the charged offense or an element of a defense to that crime, and was therefore irrelevant. The court also concluded that any probative value from the testimony would be outweighed by unfair prejudice and the likelihood that the evidence would confuse and mislead the jury. The court reasoned that even if the evidence possessed probative value, that value was limited because the witnesses could not have observed Rothwell alone with children, and that the introduction of the testimony would lead to "mini trials" to explore specific instances of conduct that would confuse and distract the jury.
After Rothwell was subsequently convicted, he appealed, claiming, inter alia, that this evidentiary ruling was erroneous. In addressing this issue, the Court of Appeals of Idaho canvassed precedent from across the country and concluded that
Whether a defendant's morality with respect to minors is a pertinent character trait in cases involving sexual misconduct with a minor is an issue of first impression in Idaho, but most other courts addressing the issue have concluded that traits relating to a defendant's sexual morality with children are pertinent in such cases. State v. Rhodes, 219 Ariz. 476, 200 P.3d 973, 976 (Ariz.Ct.App.2008) (“sexual normalcy, or appropriateness in interacting with children”); People v. McAlpin, 53 Cal.3d 1289, 283 Cal.Rptr. 382, 812 P.2d 563, 572–76 (Cal.1991) (opinion that the defendant was not “given to lewd conduct with children” and was normal in his sexual tastes); State v. Hughes, 841 So.2d 718, 723 (La.2003) (reputation “as a moral person and for safe and proper treatment of young children”); Wheeler v. State, 67 S.W.3d 879, 882 (Tex.Crim.App.2002) (“moral and safe relations with small children or young girls”); State v. Griswold, 98 Wash.App. 817, 991 P.2d 657, 663 (Wash.Ct.App.2000) (“sexual morality”) abrogated on other grounds by State v. Devincentis, 150 Wash.2d 11, 74 P.3d 119 (Wash.2003). See also State v. Anderson, 211 Mont. 272, 686 P.2d 193, 204 (Mont.1984) (orthodox sexual mores); State v. Workman, 14 Ohio App.3d 385, 471 N.E.2d 853, 861 (Ohio Ct.App.1984) (trusted with children); State v. Enakiev, 175 Or.App. 589, 29 P.3d 1160, 1164–65 (Or.Ct.App.2001) (sexual propriety); State v. Benoit, 697 A.2d 329, 331 (R.I.1997) (trustworthiness with children); State v. Miller, 709 P.2d 350, 353–54 (Utah 1985) (sexual morality). A minority of courts take the opposite view. See Hendricks v. State, 34 So.3d 819, 825 (Fla.Dist.Ct.App.2010) rev. granted, 49 So.3d 746 (Fla.2010); State v. Graf, 143 N.H. 294, 726 A.2d 1270, 1274–75 (N.H.1999).
The Court of Appeals of Idaho then agreed with the majority of precedent on the issue, concluding that
Because character traits relating to a defendant's sexual morality with children are pertinent, or relevant, in this type of case, such evidence is admissible under I.R.E. 404(a)(1). We recognize that sexual abuse is usually secret behavior that would not be observed by others, and therefore the opinion or reputation evidence about a defendant's trustworthiness with children may be of marginal persuasiveness. The same can be said, however, of many types of criminal activity. It appears that Rule 404(a)(1) was nevertheless intended to allow an accused the opportunity to present evidence of good character that is pertinent to the nature of the charged offense. The unlikelihood that the character witnesses would have been in a position to witness criminal conduct of the defendant goes to the weight of character evidence, not its admissibility.
This analysis pretty much gets to the root of it. When a character witness testifies that, in his opinion, the defendant has a good character for sexual morality with children, what he is really saying is that he has never seen the defendant act sexually inappropriate around the victim. And, given that such behavior is almost always private, this doesn't really mean much.
The situation is somewhat similar to character testimony regarding peacefulness. When a character witness testifies that, in his opinion, the defendant is a peaceful, non-violent person, what he is really saying is that he has never seen the defendant act violently. But violence is often public, and you can at least imagine situations where such testimony would have decent relevance. If a character witness saw someone yelling at/threatening/attacking the defendant, and the defendant would not respond with force, that might tell the jury something about the defendant's character for non-violence. But can character evidence really ever tell jurors anything about a person having a good character for sexual morality with children?