Friday, February 7, 2014
For professors covering or attorneys interested in the fascinating Fifth Amendment privilege issues raised in United States v. Hubbell, 530 U.S. 27 (2000) and lower court cases like In re Grand Jury Subpoena, 383 F.3d 905 (9th Cir.2004); U.S. v. Ponds 454, F.3d 313, 319 (D.C. Cir. 2006), etc., a contemporary example is presented in the ongoing investigations into the George Washington Bridge closing scandal involving New Jersey Governor Chris Christie. Aides caught up in the affair have been served with document subpoenas and are exercising a Fifth Amendment privilege not to respond. This Newsweek story does a nice job (I think) of explaining the limited yet powerful nature of the privilege in this context and, not coincidentally (in terms of my opinion of the article's merits), quotes me in its discussion . . . .
Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is "unavailable." As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule 403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?
Wednesday, February 5, 2014
(Un)available For a Limited Time: Court of Appeals of Idaho Wrongly Precludes Statement Against Interest Appeal
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid a claim by declarant against another, that a reasonable man in declarant's position would not have made the statement unless declarant believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.
But such a "statement against interest" is only admissible if the declarant is "unavailable" at trial under Idaho Rule of Evidence 804(a). So, let's say that a trial court deems a declarant "unavailable" under Rule 804(a) but deems the declarant's statement inadmissible under Rule 804(b)(3). Can an appellate court affirm that ruling by concluding that the declarant was actually available? According to the recent opinion of the Court of Appeals of Idaho in State v. Fair, 2014 WL 403179 (Idaho App. 2014). I disagree.
Tuesday, February 4, 2014
Florida is investigating a government chemist who “is suspected of taking illegal drugs out of evidence storage and replacing them with over-the-counter medication.” The state has “identified nearly 2,600 cases spanning 35 counties that [the] chemist processed between 2006 and the present day” and has instituted a “massive evidence review in thousands of drug cases handled by [the] chemist, saying its findings could lead to some criminal cases being quashed and drug dealers set free.”
Monday, February 3, 2014
In a previous post, I wrote about a Missouri court that granted a new trial on the basis of post-verdict evidence of a racist juror (who allegedly called the plaintiff by a racial slur during jury deliberations).
The case also provides an example of jurors wondering about just who will pay if the defendant is found liable---the defendant, or some third party. Juror interest in this issue is at the root of Federal Rule of Evidence 411, which provides, "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully." As the advisory committee note to Rule 411 observes, the rule is motivated by "the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds." In other words, the jury might pick the deep pocket of a defendant's insurance company to compensate a sympathetic plaintiff, regardless of whether the plaintiff is entitled to damages at law.
In Exhibit 5 of the plaintiff's motion papers (see page 76 of the linked PDF) in Amrine v. Ossman, we see the jury's handwritten question: "Does any award/compensation to the Plaintiff are paid by who? State or [Defendant] Ossman?"
A statement that:
(A) is made by a person seeking medical diagnosis or treatment;
(B) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and
(C) describes medical history; past or present symptoms, pain or sensations; their inception; or their general cause.
Rule 803(4) is largely premised on the "selfish motive" rationale: that a patient is motivated to be honest/accurate when describing symptoms/causes to a doctor because inaccuracy could lead to misdiagnosis/mistreatment. Based upon this rationale, many litigants have attempted to argue that statements by young children should not be admissible under Rule 803(4) because such children do not realize the dangers of such inaccuracy. Most litigants are unsuccessful in this endeavor, as was the case in Fuentes v. State, 2014 WL 298938 (Ind.App. 2014).
Evidence Article of Interest: "The Waning Penchant Toward Admissibility As The Wars Against Crime Stagger On"
MICHAEL H. GRAHAM (U. Miami)
Criminal Law Bulletin #32
Abstract After the Jump . . .
Saturday, February 1, 2014
Buried in the story about alleged cheating on monthly proficiency tests given to Air Force officers at ballistic missile sites is a reminder of the way electronic communications are changing investigations.
“The cheating came to light during an inquiry into illegal drug possession, when investigators discovered that test answers were being sent in text messages to the missile launch officers’ cellphones.”
It would be interesting to know the precise connection between the drug inquiry and discovery of the cheating scandal. Most likely, investigators seized a cell phone in the course of the drug investigation and stumbled across the text messages, although there are more traditional possibilities (e.g., a suspect in the drug investigation divulged the cheating in the hopes of obtaining leniency).
As a general matter, given the power of text messages and other electronic communications as evidence, the ability of investigators to get access to them is increasingly important and so stories like this always grab my interest.
The Supreme Court will finally weigh in on the issue of cell phone searches incident to arrest in two upcoming cases: United States v. Wurie and Riley v. California -- an issue that has long been in the crosshairs of my colleague: see, e.g. Adam Gershowitz, The iPhone Meets the Fourth Amendment, 56 UCLA L. Rev. 27 (2008)
Friday, January 31, 2014
Seeking Consistency: Court of Criminal Appeals Finds Extrinsic Evidence Not Admissible When Witness Admits Inconsistency
Pursuant to Tennessee Rule of Evidence 613(b),
Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless and until the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 803(1.2).
So, let's say that a witness gives testimony at trial. Then, during cross-examination, opposing counsel asks the witness about examples of inconsistencies between her trial testimony and a statement that she gave to police. If the witness acknowledges making inconsistent statements to police, can opposing counsel introduce extrinsic evidence of the police statement? According to the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Holman, 2014 WL 295610 (Tenn.Crim.App. 2014), the answer is "no."
Thursday, January 30, 2014
Federal Rule of Evidence 612(a) & (b) state as follows:
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
As Rule of Evidence 612(a)(2) makes clear, if a witness uses a writing to refresh his memory before testifying, the judge has discretion over whether to allow the adverse party to have the writing produced. So, how did the court exercise that discretion in United States v. LaVilla, 2014 WL 305634 (2nd Cir. 2014).
Wednesday, January 29, 2014
Arizona Rule of Evidence 801(d)(1)(A) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing...and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony
So, let's say that an alleged victim gives a detailed statement to the police on the night of an alleged crime. Then, at trial, the victim testifies in response to certain questions that she "would rather not say..." Does such testimony render her prior statement "inconsistent," permitting its admission under Rule 801(d)(1)(A)? According to the recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Joe, 2014 WL 212591 (Ariz.App. Div. 1 2014), the answer is "yes."
Monday, January 27, 2014
Pronoun Problem: Supreme Court of South Carolina Finds Pronoun Redaction Didn't Solve Bruton Problem
The Confrontation Clause of the Sixth Amendment states that
In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...
Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. But what if the court redacts the statement and replaces the other defendant's name with a neutral pronoun? As I have noted in prior posts (see, e.g., here), several courts have started to find that such a procedure does not violate the Bruton doctrine. In State v. Henson, 2014 WL 229891 (S.C. 2014), however, the Supreme Court of South Carolina disagreed.
Friday, January 24, 2014
In Order Categorical: 7th Circuit Rejects Categorical Approach to Defining "Sexual Assault" Under Rule 413
Federal Rule of Evidence 413(a) provides that
In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
Moreover, Federal Rule of Evidence 413(d) indicates that
In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).
Usually, it is clear whether the charges against the defendant satisfy (or don't satisfy) the Rule 413(d) test. In United States v. Foley, 2014 WL 228686 (7th Cir. 2014), however, the defendant used an interesting analogy to claim that such clarity was lacking. But was he successful?
Thursday, January 23, 2014
Federal Rule of Evidence 901(b)(1) allows for authentication through
Testimony that an item is what it is claimed to be.
In the case of photographs, what this means is that there can be authentication by anyone with personal knowledge of the location/object that was photographed. For an example, consider the following hypothetical:
Hypothetical: Bryan Hooper slips and falls in the lobby of a Marriott Courtyard hotel in Cleveland. Hooper sues the hotel for negligence, and the hotel seeks to introduce a photograph of the lobby from after the accident. Marriott does not call the photographer but instead has Shane Frownfelter, the manager of the Marriott, testify “that the photo reflected how the mats would have been at the time of the incident based upon his presence at the scene.” Was there proper authentication? See Hooper v. Marriott Intern., Inc., 2013 WL 5786294 (N.D.Tex. 2013).
The answer, of course, is "yes."
Wednesday, January 22, 2014
Federal Rule of Evidence 410(a)(2) provides that
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....
(2) a nolo contendere plea
That said, some courts have held that Rule 410(a)(2) does not apply when the person entering the nolo contendere plea later becomes a civil plaintiff. This issue was the subject of my article, The Best Offense is a Good Defense: Why Criminal Defendants' Nolo Contendere Pleas Should be Inadmissible Against Them When They Become Civil Plaintiffs. It was also the subject of the recent opinion of the Third Circuit in Sharif v. Picone, 2014 WL 211805 (3rd Cir. 2014).
Tuesday, January 21, 2014
Ugly Can be Inadmissible: 1st Circuit Finds Evidence of New Hangtag Inadmissible in Escalator Injury Case
Federal Rule of Evidence 407 provides that
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
- culpable conduct;
- a defect in a product or its design; or
- a need for a warning or instruction.
But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.
In some cases, however, it is so clear that evidence of a subsequent remedial measure is lacking in any probative value that a court does not even need to apply Rule 407. This was the case in Geshke v. Crocs, Inc., 2014 WL 185538 (1st Cir. 2014).
Monday, January 20, 2014
Federal Rule of Evidence 902(3) allows for the self-authentication of
A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final certification.
That's a lot of language, and the recent opinion of the Eleventh Circuit in United States v. McGowan, 2014 WL 184471 (11th Cir. 2014), does a good job of unpacking it.
Sunday, January 19, 2014
A Missouri judge recently granted a new trial to a civil plaintiff who produced post-verdict evidence of juror misconduct. The case, Amrine v. Ossman (Cole County Circuit Court), concerns a malpractice allegation brought by a former death row inmate who was freed in 2003 after the Supreme Court of Missouri found "clear and convincing evidence of actual innocence that undermines confidence" in Amrine's guilt. Now Amrine alleges that counsel at his murder case committed malpratice. In 2012, a jury found for Ossman, the retired public defender being sued by his former client. Then Amrine's lawyers moved for a new trial, alleging (among other things) that a white juror had said during deliberations that he would not give Amrine anything and that he referred to Amrine (who is black) by a racial slur. Counsel for Ossman offered evidence in rebuttal that the alleged racist remark was never made. Finding the denials by the alleged racist juror not credible, and deeming that the racist remark showed "unrestrained racial bias," the judge ordered a new trial, which is set for February 2014.
Because the trial took place in Missouri state court, the plaintiff's post-verdict evidence of juror racial bias was admissible under the rule of Fleshner v. Pepose Vision Institute, 304 S.W. 3d 81 (Mo. 2010). Under the federal rules (and similar ones adopted in most states), the admissibility would not be so clear.
Friday, January 17, 2014
Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate. The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims. Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.
Most states have gotten rid of their Dead Man's Statutes, but, as is made clear by In re Estate of Smith, 2014 WL 47378 (Ariz.App. Div. 1 2014), Arizona still has such a statute...but it is discretionary.
Thursday, January 16, 2014
Federal Rule of Evidence 902(9) allows for the self-authentication of
Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.
I haven't yet had the chance to address Rule 902(9) on this blog, but the recent opinion of the United States District Court for the Eastern District of Wisconsin in Ocwen Loan Servicing, LLC v. Thompson, 2014 WL 51236 (E.D.Wis. 2014), gives me the opportunity. But I'm not sure that the court got it right.