EvidenceProf Blog

My New Essay: Beware of the Diamond Dogs: Why a “Credentials Alone” Conception of Probable Cause Violates the Compulsory Process Clause

Florida v. Harris didn't turn out the way that I had hoped. As Lyle Denniston noted in his SCOTUSblog post, Opinion recap: trust the police dog, 

Expressing considerable confidence that trained drug-sniffing dogs are reliable, and showing specific respect for one Florida police dog — Aldo — the Supreme Court on Tuesday made it quite easy for police officers to search a car or truck for drugs once a canine snooper has “alerted” to a smell on the vehicle.   If the police offer evidence that a dog has been trained, or got a certificate from a training agency, that may well be enough to give police permission to turn an “alert” into a search of a vehicle, the Court said in a unanimous decision written by Justice Elena Kagan (Florida v. Harris, docket 11-817). 

The Court specifically rejected a very detailed checklist of proof of a dog’s reliability that the Florida Supreme Court had drawn up before a court could treat a dog’s signaling of the presence of a drug odor as the equivalent of “probable cause” to search.  In place of such a checklist, the Court set up a “reasonably prudent person” test — that is, a common-sense review of all of the facts about a dog’s alert, to see if such a prudent person would think that a search would turn up evidence of illegal drugs.  “A sniff is up to snuff when it meets that test,” Kagan cleverly summed up.

So, yes, the Supreme Court essentially did tell us to "trust the police dog." My response: Don't trust the diamond dogs. That's the argument of my essay, Beware of the Diamond Dogs: Why a 'Credentials Alone' Conception of Probable Cause Violates the Compulsory Process Clause, recently published by the Loyola University New Orleans Journal of Public Interest Law. You can now download the essay by clicking here.

-CM  

The Guardian: Supreme Court of Colorado Finds Guardian Ad Litem Holds Child's Privilege in Parental Rights Case

Like most states, Colorado has a psychotherapist-patient privilege. Colorado's privilege, contained in Colorado Revised Statute Section 13-90-107(g), provides that

A licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor shall not be examined without the consent of the licensee's, certificate holder's, or registrant's client as to any communication made by the client to the licensee, certificate holder, or registrant or the licensee's, certificate holder's, or registrant's advice given in the course of professional employment; nor shall any secretary, stenographer, or clerk employed by a licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor be examined without the consent of the employer of the secretary, stenographer, or clerk concerning any fact, the knowledge of which the employee has acquired in such capacity; nor shall any person who has participated in any psychotherapy, conducted under the supervision of a person authorized by law to conduct such therapy, including group therapy sessions, be examined concerning any knowledge gained during the course of such therapy without the consent of the person to whom the testimony sought relates.

Normally, the patient is the holder of the psychotherapist-patient privilege and can decide whether to waive the privilege. When, however, "the patient is a child who is too young or otherwise incompetent to hold the privilege, the child's parent typically assumes the role of privilege holder." In such cases, it is typically the child's parent or parents who have the authority to decide whether to waive the privilege. But what happens when there is an action to terminate the parental rights of the child's parent(s)? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013).

In L.A.N., based upon L.A.N.'s out-of-control behavior and suicidal statements, her aunt hired a licensed professional counselor, Kris Newland, to provide therapy for her. Subsequently, the Denver Department of Human Services moved the juvenile court to terminate the parent-child relationship between L.A.N. and her mother, the only parent in the picture, on account of the mother's alleged failure to adequately comply with her court-prescribed treatment plan. The hotly contested issue in this action then became who held the psychotherapist-patient privilege with regard to L.A.N.'s statements to Newland and accordingly who could waive that privilege.

The court first found that L.A.N. (who was seven or eight at the time of her statements) was too young to be able to hold and thus waive the privilege. Next, the court found that "[t]he parent...cannot hold the child's psychotherapist-patient privilege when the parent's interests as a party in a proceeding involving the child might give the parent incentive to strategically assert or waive the child's privilege in a way that could contravene the child's interest in maintaining the confidentiality of the patient-therapist relationship." Therefore, the mother, whose parental rights were at stake, was also not the privilege-holder.

So, who held the privilege? The court listed three possibilities: (1)the department of human services, (2) the juvenile court, or (3) the guardian ad litem. First, the court concluded that "[t]he county department of human services should not hold the child's psychotherapist-patient privilege because its duties could conflict with the child's interest in maintaining the confidentiality of therapeutic communications." Second, the court found that

the juvenile court is not in the best position to hold the child's psychotherapist-patient privilege for several reasons. First, the juvenile court's role in a dependency and neglect proceeding, as in other types of cases, is that of independent decision-maker....Similarly, although the juvenile court must consider the child's best interests throughout the dependency and neglect proceeding,...its role is not to represent the best interests of the child....Finally, the obligation to assert or waive the child's psychotherapist-patient privilege could unduly burden the juvenile court and would constitute a wasteful allocation of resources.

That left the court with the guardian ad litem, and it held

The GAL's "client" is the "best interests of the child."...The GAL's ethical obligations as an attorney "flow from this unique definition of 'client'"; therefore, the GAL owes fiduciary duties of loyalty and confidentiality to the child's best interests....These professional duties serve the privacy interest of the psychotherapist-patient privilege that the General Assembly aimed to protect with subsection 13–90–107(1)(g) because the GAL must refrain from revealing privileged information if doing so would be contrary to the child's best interests....

In addition, unlike the other potential privilege holders discussed above, the GAL is in an optimal position to understand when to assert or waive the child's privilege in order to serve the child's best interests due to the nature of the GAL's statutory duties. Colorado law requires the juvenile court to appoint a GAL in every dependency and neglect case....Therefore, the GAL is consistently available to hold the child's privilege when neither the child nor the child's parent(s) have such authority. To represent the child's best interests, the GAL must investigate the case, question witnesses, and make recommendations to the court concerning the child's welfare....The GAL accomplishes these tasks in part by interviewing people involved in the child's life, including therapists....The knowledge gained by fulfilling these obligations places the GAL in the best position to determine what information to disclose in the best interests of the child. Therefore, the GAL should hold the child's privilege when neither the child nor the child's parent(s) have authority to do so. 

Justice Coats, meanwhile, vigorously dissenting, arguing that

the court alone can ultimately decide what is in the best interests of the child, and therefore the court alone can decide whether the child's secrets must be exposed in furtherance of those interests. Although the ultimate question will not yet have been decided, once a parent's fitness has been sufficiently challenged to limit his parental rights and responsibilities, his access to otherwise privileged materials necessary to carry out those responsibilities is clearly no longer required. By the same token, however, I find nothing in the statutory scheme to suggest that the legislature intended by the appointment of a guardian solely for purposes of this litigation to permit that guardian complete access to the child's otherwise legally protected secrets, much less to divulge those secrets to others at his choice.  

The legislature has created a privilege for communications made to a licensed therapist, running to the client, by expressly prohibiting the examination of a therapist about those communications without the client's consent....With regard to children in particular, the legislature has limited the privilege to the extent of requiring the therapist to report whenever there is reason to suspect a child has been subjected to abuse or neglect,...and by making clear that the therapist-client privilege cannot be a ground for excluding from proceedings resulting from such a report any communications upon which the report is based or any discussion of future or other past misconduct that could be the basis for such a report....The legislature has not, however, specified circumstances under which a child should be considered incapable of giving or withholding consent for the release of communications that remain privileged, nor has it expressly authorized any person or agency to give consent for the child if the child were incapable of doing so himself.  

In this regard, I find particularly problematic the majority's characterization of a statutorily appointed guardian ad litem as the "holder" of the child's privilege. I would not even characterize a parent or legal guardian, who is expressly granted access to certain otherwise confidential records and has legal obligations for the child's safety and welfare requiring him to make important decisions on behalf of the child, as the holder of the child's privilege. Even someone with parental responsibilities may act only in the interests of the child and does not become a person to whom the privilege runs and for whose benefit it exists. Not only do I believe the express and deliberate waiver of a child's privilege, even by one with uncontested parental responsibilities, may nevertheless be ineffective under certain circumstances; I believe the privilege of a child most certainly cannot be implicitly waived by acts of a parent that are not in the child's best interests, even though those acts would otherwise be sufficient for an implied waiver of the parent's own privilege.

So, how has the better of the argument? I must say that at this point, I can see the logic of both sides and feel like I need to research the role of GALs more before I can reach a definitive conclusion

-CM

Dying Declarations?: Should Courts Apply a Rule 403 Analysis to Questionable Hearsay Exceptions?

Similar to its federal counterpart, New Jersey Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness because of death is admissible if it was made voluntarily and in good faith and while the declarant was conscious of declarant's impending death. 

And, similar to its federal counterpart, New Jersey Rule of Evidence 403 states that

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Many people criticize Rule 804(b)(2) because dying declarations are often made while the victim is in a hypoxic or anoxic state that can cause delirium, which would greatly undermine the reliability of the dying declarant's statement. The problem for defendants, however, is that Rule 804(b)(2) isn't going anywhere any time soon. So, what if a defendant claimed that a defendant that qualifies for admission under Rule 804(b)(2) should still be excluded under Rule 403? Let's take a look at the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Bacon-Vaughters, 2013 WL 656248 (N.J.Super.A.D. 2013).

In Bacon-Vaughters, Kenneth M. Bacon–Vaughters was convicted of first-degree felony murder, first-degree armed robbery, second-degree possession of a weapon for an unlawful purpose, and second-degree conspiracy to commit armed robbery. After he was convicted, Bacon-Vaughters appealed, claiming, inter alia, the the trial court erred in admitting a dying declaration made by the victim, Nathaniel Wiggins, to Patrolman Brett Paulus. Specifically,

When Paulus first saw Wiggins on the floor of his kitchen, Wiggins told the officer, "Oh, God, I'm dying." Without any questioning or prompting by Paulus, he said, "Kenny Mike shot me."

Bacon-Vaughters did not qualify that these statements failed to qualify for admission under Rule 804(b)(2) because they clearly did. Instead, he alleged that the probative value of these statements "was outweighed by [their] prejudice, i.e., that the statements should have been deemed inadmissible under Rule 403. So, how did the court respond?  It found that

Wiggins, who was mortally wounded and died a few hours later, was clearly conscious of his impending death and the statement "Kenny Mike shot me" is a textbook example of a dying declaration.

And? This answers the question of whether the statements were admissible under Rule 804(b)(2), but every piece of evidence or testimony must also satisfy Rule 403. It seems to me that the court assumed that satisfaction of Rule 804(b)(2) made the statements admissible without conducting any independent analysis of Rule 403.

This seems clearly wrong, and it raises the question of what happens if a party properly raises the issue and the court addresses it? A litigant will get nowhere by claiming that a hearsay exception allows for the admission of unreliable evidence that is lacking in probative value. But how far should and/or will he get if he raises these issues under Rule 403?

-CM

All Sense of Proportion: Can a Probable Cause Affidavit Qualify as a Present Sense Impression?

Similar to its federal counterpart, Indiana Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter.

And, similar to its federal counterpart, Indiana Rule of Evidence 803(8), provides an exception to the rule against hearsay (unless the sources of information or other circumstances indicate lack of trustworthiness)

[for] records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

So, let's say that a police officer fills out a probable cause affidavit while waiting 20 minutes before administering a chemical breath test on a suspect. Would that affidavit be admissible under Rule 803(1) or inadmissible under Rule 803(8)? Let's take a look at the recent opinion of the Court of Appeals of Indiana in Jones v. State, 2013 WL 500799 (Ind.App. 2013).

In Jones, 

On May 29, 2010, at approximately 8:26 p.m., Indiana State Police Trooper Dan Madison was traveling northbound on Emerson Avenue and was stopped at a traffic light at Southeastern Avenue in Marion County, Indiana. After the light turned green, Trooper Madison began to proceed through the intersection, noticed a car driven by Jones approaching from his right side on Southeastern, and had to brake and let Jones pass because Jones did not stop at the red light. Jones passed "right in front" of Trooper Madison's police car and turned right to head northbound on Emerson, and Trooper Madison began to follow him. Transcript at 38. Trooper Madison observed Jones weaving in and out of his lane, crossing the center line twice. He also observed Jones attempt to pass in a no-passing zone and drift onto the shoulder of the road, almost hitting parked vehicles. When Jones attempted to pass in the no-passing zone, Trooper Madison was forced to swerve into oncoming traffic with Jones to alert the drivers to avoid Jones's vehicle, and he then initiated a traffic stop of Jones.

Jones and Madison gave conflicting accounts of what ensued, but let's take Madison at his word. According to Madison, while he was waiting the prescribed 20 minutes to administer a chemical breath test on Jones, he filled out a probable cause affidavit summarizing what he was observing. The prosecution later introduced this affidavit at Jones' trial for operating a vehicle while intoxicated, and Jones was eventually convicted.

Jones later appealed, claiming that the affidavit was improperly admitted. The State countered that "the probable cause affidavit was properly admitted as a present sense impression under Ind. Evidence Rule 803(8)." Jones disagreed, arguing 

that the State cite[d] no case law for admitting a probable cause affidavit under the present sense impression hearsay exception..., and that Evidence Rule 803(8), the public records hearsay exception, specifically states that probable cause affidavits do not qualify under the rule and accordingly "[r]eading Rule 803 as a whole, it would make little sense to affirmatively exclude probable cause affidavits from one exception, only to allow them to be admitted under another."

And while the Court of Appeals of Indiana did not resolve this issue, finding that any error in admitting the affidavit would have been harmless, I side with Jones on the legal issue. A present sense impression is thought to be reliable because a person is reporting on events that they are observing or just observed, meaning that memory shouldn't be much of an issue. Conversely, police reports and affidavits are thought to be unreliable because the officer has a motive to slant them in favor of the government and against the suspect. Therefore, a police affidavit that satisfies the elements of Rule 803(1) is still unreliable based upon Rule 803(8).

-CM

The Rule of Evidence That's Never Applied, Take 3: Former Jury Venireman as Witness?

As I noted last week, I have yet to find a single case in which a court has applied Federal Rule of Evidence 606(a), which provides that

A juror may not testify as a witness before the other jurors at the trial.If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

I did, however, post about two cases (here and here) in which courts applied the principles of Rule 606(a) to the proffered testimony of two former jurors. Now, courtesy of Ann Murphy, let's take a look at United States v. Kills Enemy, 3 F.3d 1201 (8th Cir. 1993), in which the prosecution called a former jury venireman at trial.

In Kills Enemy, Gerald Kills Enemy was convicted of possession of cocaine with intent to distribute. After he was convicted, Kills Enemy appealed, claiming, inter alia,

that the district court erred in permitting Amos American Horse to testify. American Horse had been a venireman, but was excused for cause when he stated that Kills Enemy was his friend and former neighbor. The government then contacted American Horse and called him as a witness.

Kills Enemy cited to Rule 606(a) and argued 

that it was error to permit American Horse to testify because he had served on the venire with persons who became the jurors in this case, and he may have become acquainted with them or otherwise made an impression, either favorable or unfavorable, on the jurors.

The Eighth Circuit disagreed, finding that

Rule 606 is not applicable to veniremen, as opposed to jurors, and does not require us to reverse. Nevertheless, we must express our concern about the government's actions in calling American Horse to the stand. Though we have nothing but speculation in this case about the possible effect on jurors in calling a former venireman to testify, we consider this a close case. In a case with a developed record with evidence of real harm, the result might well be different.

-CM