EvidenceProf Blog

Watch Your Step: Supreme Court of Connecticut Finds Subsequent Remedial Measure Evidence Improperly Admitted

Section 4-7 of the Connecticut Code of Evidence states: 

(a) General rule. Except as provided in subsection (b), evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures.

(b) Strict product liability of goods. Where a theory of liability relied on by a party is strict product liability, evidence of such measures taken after an event is admissible.

The recent opinion of the Supreme Court of Connecticut in Duncan v. Mill Management Co. of Greenwich, Inc., 2013 WL 515490 (Conn. 2013), does a nice job of breaking down the justifications for the section and when it does and doesn't apply.

In Duncan, Catherine O. Duncan brought a negligence action against the defendants, Mill Management Company of Greenwich, Inc. and the Greenwich Chateau Condominium Association after she fell and was injured when stepping down from the roof deck of the Greenwich Chateau Condominiums, where she resided.

Residents of the condominium building accessed the roof deck by stepping onto a single concrete step measuring ten inches deep and ten inches high, which led to a door that opened onto the roof deck. On April 17, 2005, the plaintiff's foot missed the step as she descended from the roof deck, and she slipped, sustaining a fractured left ankle and other injuries.

After the fall,

the plaintiff instructed the management company's property manager, Richard Deutsch, to do "something... to remedy the [step]...." Deutsch then arranged for a contractor to build replacement stairs over the original concrete step. The plaintiff thereafter commenced the present action, alleging, inter alia, that the defendants negligently had maintained the original step in violation of the building code. In their answer, the defendants raised as special defenses that, to the extent the plaintiff had been injured, the plaintiff's own negligence proximately caused her fall, and that the plaintiff's status as the president of the condominium association meant that the failure to ensure safe access to the roof deck constituted a breach of her fiduciary duty to the condominium association.

At trial, the court allowed for evidence of this subsequent remedial measure to be admitted, and the jury eventually found in favor of the plaintiff. The defendants thereafter appealed, claiming that this evidence should have been deemed inadmissible under Section 4-7 of the Connecticut Code of Evidence.

The Supreme Court of Connecticut initially noted that

Historically, we have justified the exclusion of subsequent remedial measures evidence under two principal theories. First, we have observed that such evidence is likely to be of relatively minor probative value....As we reasoned in Nalley, in which we first announced the rule excluding evidence of subsequent remedial measures, "[t]he fact that an accident has happened and some person has been injured, immediately puts a party on a higher plane of diligence and duty from which he acts with a view of preventing the possibility of a similar accident, which should operate to commend rather than condemn the person so acting. If the subsequent act is made to reflect back [on] the prior one, although it is done [on] the theory that it is a mere admission, yet it virtually introduces into the transaction a new element and test of negligence which has no business there, not being in existence at the time."...

Our more recent cases instead have focused on a second, public policy based justification, namely, that allowing evidence of subsequent remedial measures to prove negligence "discourages alleged tortfeasors from repairing hazards, thereby perpetuating the danger."...A broad exclusionary rule prohibiting the use of such evidence to prove negligence therefore "fosters the public good by allowing tortfeasors to repair hazards without fear of having the repair used as proof of negligence, even though it requires the plaintiff to make a case without the use of evidence of the subsequent repairs." 

The Connecticut Supremes then concluded that the trial court erred by deeming evidence of the subsequent remedial measure admissible, concluding that

In the present case, neither control nor the feasibility of repairs was controverted. In their pretrial motion in limine, in which the defendants sought to preclude evidence of the subsequent remedial measures, they expressly conceded these issues, explaining that "there is no issue as to what entity controlled the stairway at issue. The defendants have not contested this issue and will not contest it at trial. Furthermore, the defendants are not contesting that alternat[ive] stairway designs were feasible for the roof deck and stairway at issue." Moreover, unlike in Rokus, the layout of the accident scene in the present case was not a critical issue, and the plaintiff's stated intention of admitting the photographs for layout purposes, such as to demonstrate to the jury that the step was made out of concrete, could have been accomplished in a far less prejudicial manner.

-CM

From Under the Shield: Court of Appeals of Texas Finds Rape Shield Rule Doesn't Cover Alleged Victim's Sexual Misconduct

Similar to its federal counterpart, Texas Rule of Evidence 412 states s in relevant part:

(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.  

(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:  

(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;  

(2) it is evidence:  

(A) that is necessary to rebut or explain scientific or medical evidence offered by the State; 

(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;  

(C) that relates to the motive or bias of the alleged victim;  

(D) is admissible under Rule 609; or  

(E) that is constitutionally required to be admitted; and  

(3) its probative value outweighs the danger of unfair prejudice.

The typical evidence excluded under such rape shield rules is evidence proffered by a defendant concerning the victim's alleged character for promiscuity to prove her propensity to consent to sexual conduct and her likely conformity with that propensity at the time of the crime charged. But what if the evidence of the alleged victim's past sexual behavior that the defendant seeks to admit is evidence of past sexual misconduct? Let's take a look at the recent opinion of the Court of Appeals of Texas, Waco, in Johnson v. State, 2013 WL 531079 (Tex.App.-Waco 2013).

In Johnson, Joe Dale Johnson was convicted of two counts of aggravated sexual assault of a child and one count of indecency with a child. According to the Court of Appeals,

Complainant H.H. was a twelve-year-old boy who was participating in court-ordered counseling for sexually molesting his ten-year-old sister over several years. He had also been caught shoplifting and had strained relationships with his parents. Appellant, a man in his fifties and a board member of the church that he and the complainant attended, had previously been convicted of a sexual offense against a teenage boy thirty years before in Kansas. Appellant and the complainant spent time together, and the complainant accepted work mowing Appellant's and other church members' lawns for pay. The complainant testified that Appellant had lured him into Appellant's study and that Appellant had seduced him into allowing Appellant to perform fellatio on him and sought to have the complainant perform fellatio on Appellant. The complainant eventually told the youth minister, who was never interviewed by law enforcement and did not testify at trial, what had happened. The youth minister went to the complainant's parents to tell them what their son had told him. The parents, in turn, reported what they had been told to the Burkburnett Police Department. The purported offenses were alleged to have occurred in April 2007.

At trial, Appellant sought to elicit testimony that the complainant had been adjudicated delinquent for sexually molesting his ten-year-old sister and, among other things, was in court-ordered counseling as a result. 

The trial court, however, precluded Johnson from eliciting such testimony, finding that it was inadmissible under Texas Rule of Evidence 412. After Johnson was convicted, he appealed, claiming

that the excluded evidence (1) was admissible to rebut the false impression the State had left with the jury regarding the primary reason the complainant was in counseling, thereby opening the door for the sexual abuse evidence; (2) impeached the complainant's testimony that his guilt in being the victim of sexual abuse was relieved when he made his outcry; and (3) supported the defense's theory that the complainant had fabricated the abuse allegations against Appellant to get attention and sympathy for himself.

The Court of Appeals of Texas, Waco, agreed, concluding that

Appellant was entitled to present his defense. As a fundamental right, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. The complainant had already been adjudicated delinquent for sexually assaulting his younger sister. He was not particularly remorseful for that conduct, and his actions resulted in strained relations with his parents and the need for counseling. He was mad at Appellant, and, having been adjudicated delinquent for sexually assaulting his younger sister, he knew firsthand or should have known how damning and indefensible an accusation of sexual assault could be. Appellant was entitled to correct the misleading characterization of the complainant that the State had presented to the jury, but the trial court impermissibly limited his right to cross-examine both the complainant and other witnesses against Appellant and to present evidence. We therefore hold that the trial court abused its discretion by not allowing Appellant to cross-examine the complainant and other adverse witnesses with evidence of the complainant's prior sexual victimization of his little sister.

-CM 

Baskin Robbed?: Court of Appeals of Mississippi Finds Trial Court Erred In Allowing Impeachment Via Petty Larceny Conviction

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

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

 So, let's say that a defense witness has prior convictions for misdemeanor embezzlement and petty larceny. Can the prosecution impeach the witness through either, both, or neither of these convictions pursuant to Rule 609(a)? Let's take a look at the recent opinion of the Court of Appeals of Mississippi in Baskin v. State, 2013 WL 500762 (Miss.App. 2013).

In Baskin, Joel Baskin  for possession of cocaine and as a habitual offender. After he was convicted of both crimes, he appealed, claiming, inter alia, that the trial court erred in permitting the prosecution to impeach defense witness Darsheika Wallace through evidence of her prior convictions for misdemeanor embezzlement and petty larceny.

First, the Court of Appeals of Mississippi found no problem with impeachment of Wallace through her embezzlement conviction, finding that it was admissible under Mississippi Rule of Evidence 609(a)(2). As noted by the court, the advisory committee note to Rule 609 states that

The phrase "dishonesty or false statement" in 609(a)(2) means crimes such as perjury or subornation of perjury, false statement, fraud, forgery, embezzlement, false pretense or other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the witness'[s] propensity to testify truthfully. Such convictions are peculiarly probative of credibility and are always to be admitted, not subject to the discretionary balancing by the judge (emphasis added).

The appellate court, however, did find error with the trial court allowing impeachment through evidence of the petty larceny conviction:

With regard to petty larceny, the Mississippi Supreme Court has found that it does not constitute a crime involving dishonesty or a false statement. The supreme court stated: "While there is a split of authority on the question whether theft crimes such as larceny and shoplifting should be categorized as crimen falsi, historically they have not been and this Court has adopted the majority view that they are not."...Therefore, for theft crimes to be admissible for impeachment purposes, they must fall under Rule 609(a)(1)....Because Wallace's petty-larceny conviction was not punishable by death or imprisonment in excess of one year, that conviction does not fall under Rule 609(a)(1).

That said, because Baskin failed to object to this issue at trial, the court found that he had failed to preserve it for appellate review.

-CM

Foster the People: Court of Appeals of Texas Finds Judge's Instruction Wasn't Improper Testimony Under Rule 605

Similar to its federal counterpart, Texas Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

So, assume that the Department of Family and Protective Services ("Department") brings an action seeking, inter alia, termination of a mother's parental rights. Then, during trial, assume that the Department decides to seek only termination of parental rights. If the judge, over defense counsel's objection, instructs the jury

I'm going to go ahead and address the jury at this time to make it abundantly clear. The State has elected, and had elected prior to trial, to proceed on termination only. So there are no other alternatives that will be in front of the jury other than termination of parental rights.

Does this instruction violate Rule 605? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in In re C.C.K., 2013 WL 452163 (Tex.App.-Fort Worth 2013), the answer is "no."

In C.C.K., the facts were as stated above. Specifically, during the questioning of the child's foster mother,

she was asked, "If [Mother's] rights are not terminated, would you still be willing to keep the kids?" The Department objected based on relevance. The trial court overruled the objection. The Department asked to approach, and the trial court excused the jury and held a bench conference. The Department explained that although their pleadings encompassed a variety of alternatives, they were seeking only termination and had consistently objected to anything outside the scope of termination. Mother's counsel stated that if the Department was going to abandon a portion of their pleadings, they needed to do so in front of the jury or else it would unfairly prejudice Mother. The Department responded that it had already made it clear through their witnesses and that Trulson had already testified that the Department was not seeking any sort of managing conservatorship or "joint sort of co-parenting." The trial judge stated his intent to inform the jury that the Department was proceeding solely on termination, and Mother objected outside the presence of the jury, arguing that the issue of custody had been tried by implied consent. The trial court overruled Mother's objection.

The trial court then gave the instruction mentioned in the introduction. After her parents rights were thereafter terminated, the mother appealed, claiming, inter alia, that the instruction "constituted de facto testimony of the judge as a witness in violation of Texas Rule of Evidence 605." The Court of Appeals of Texas, Fort Worth disagreed, concluding that

the trial judge's statement did not convey factual information not in evidence. Nor did the trial judge's statement seek to rebut any evidence adduced at trial. Instead, the trial judge's statement told the jurors what they would be asked to decide and was akin to a preview of the jury instructions that would be given at the conclusion of the trial—all of which would focus on termination, not custody or conservatorship. Under the circumstances, we hold that in instructing the jury that there would be no alternatives other than termination before the jury, the trial judge acted within his judicial capacity to give jury instructions. The trial judge's instruction was not "the functional equivalent of witness testimony," nor did it "convey factual information not in evidence." ...The trial judge thus did not testify. Because the trial judge did not testify, but instead acted in his judicial capacity in giving a jury instruction, we hold that he did not violate rule 605. 

-CM

Updated Version of Anchors Away Now Available on SSRN

After a few years of working on it, I finally have completed my article, Anchors Away: Why the Anchoring Effect Suggests that Judges Should be Able to Participate in Plea Discussions. I have now posted an updated version of the article on SSRN. Here is the abstract:

The "anchoring effect" is a cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias. 

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains. This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.

-CM