Tuesday, June 24, 2014
A defendant allegedly steals a vacuum cleaner from a store. At trial, the prosecution seeks to authenticate and admit a surveillance recording of the robbery. How does the prosecution go about authenticating the recording? As noted by the Supreme Court of New Hampshire in State v. Stangle, 2014 WL 2782016 (N.H. 2014),
"Virtually all jurisdictions allow the introduction of recordings pursuant to ‘silent witness' authentication, but jurisdictions differ on what evidentiary showing is required to satisfy the ‘silent witness' standard."...The approaches fall into two general categories....Some jurisdictions adopt a flexible, less formulaic approach focusing on the facts of each case....
Other jurisdictions adopt a multi-factor test for determining the admissibility of photographs or videos....Some of the factors those jurisdictions consider are: "(1) how the recording system operates, (2) the system's working condition and pattern of maintenance, (3) who operates the system, has access to it, and maintains its archive[s]... (4) the quality of the recording, and (5) the means by which the recording was copied to the format viewed at trial."...However, even those jurisdictions that have adopted "a multi-factor analysis tend to acknowledge that the facts of each case may differ."...They "neither require every factor be met nor rule out taking other circumstances into account in particular cases."
So, which approach did the court adopt?
Monday, June 23, 2014
Don't Forget This Fact, You Can't Get It Back: 3rd Circuit Precludes Jury Impeachment in Crack/Powder Cocaine Case
Federal Rule of Evidence 606(b) reads as follows:
(b) During an Inquiry into the Validity of a Verdict or Indictment.
(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
Rule 606(b) is thought to (1) protect jurors from harassment; (2) allow the freedom of deliberation; and (3) secure the finality of verdicts. But are those values served in a case like United States v. Morris, 2014 WL 2783460 (3rd Cir. 2014)?
Wednesday, June 18, 2014
I've written before on this blog about the slew of recent cases in which prosecutors seek to admit a defendant's rap lyrics as evidence against him in his criminal trial. The prosecutors in a current case in Brooklyn, however, have taken this tactic to a new level.
Tuesday, June 17, 2014
Prospective vs. Retrospective: Supreme Court of Colorado Finds Statements About Past Cocaine Use Admissible Under Rule 803(4)
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
So, let's say that a patient falls into a vegetative state. And then, after the patient is in that vegetative state, the patient's roommate/ex-girlfriend asks the treating physician whether the patient's past cocaine use could have contributed to the patient's resistance to normal resuscitation efforts. Should this question and related statement be deemed admissible under Rule 803(4)? Let's take a look at the recent opinion of the Supreme Court of Colorado in Kelly v. Haralampopoulos, 2014 WL 2709431 (Colo. 2014).
Monday, June 16, 2014
North Carolina Rule of Evidence 1101(b)(3) indicates that the North Carolina Rules of Evidence do not apply at probation revocation proceedings. In State v. Murchison, the Court of Appeals of North Carolina had reversed a trial court order revoking the defendant's probation because the trial court relied solely upon hearsay; the Supreme Court of North Carolina then reversed the appellate court's order. Was this proper?
Friday, June 13, 2014
It's Gotta Be the Shoes: Court of Appeals of Texas Finds Dallas Cowboys Reeboks Properly Authenticated
Texas Rule of Evidence 901(a) provides that
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
In turn, Texas Rule of Evidence 901(b)(1) provides that
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.
And, as the recent opinion of the Court of Appeals of Texas, Houston, in Dominguez v. State, 2014 WL 2582975 (Tex.App.-Houston [1 Dist.] 2014), makes clear, a witness can authenticate an exhibit by testifying that she saw the exhibit at earlier time and recognized it.
Thursday, June 12, 2014
Mixed Metaphor?: Ohio Court Finds No Confrontation Clause Problem Using Hybrid Roberts/Crawford Analysis
According to Ohio v. Roberts,
even if a declarant's hearsay statements are admissible against a defendant under an exception to the rule against hearsay, they run afoul of the Confrontation Clause if the declarant is not present for cross-examination at trial unless the State establishes two elements. First, the State must establish that the declarant is "unavailable." Second, it must prove that the statement "bears adequate indicia of reliability." The Court concluded that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." If a statement does not fall within such an exception, "the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."
In Thompson v. Warden, Warren Correctional Inst., 2014 WL 2515317 (S.D.Ohio 2014), Roberts has been overruled by Crawford v. Washington. In Crawford, the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.
So, how does one explain the opinion in Thompson?
Wednesday, June 11, 2014
Did You Notice That?: Cathedral Bible College Case Calls Into Question Rule 404(b)'s Notice Requirement
According to an article on Carolina Live,
A federal grand jury indicted Dr. Reginald Wayne Miller Tuesday on two counts of forced labor against international students at Cathedral Bible College in Marion where Miller serves as President.
The indictment says Miller did knowingly provide and obtain labor and services of individuals known as John Doe #1 and John Doe #2, by means of abuse and threatened abuse of law and legal process.
Miller's attorney filed motions Tuesday in federal court asking prosecutors to disclose their intent to use any evidence of other crimes, wrongs, or acts under federal rules of evidence.
So, what evidence is Miller's attorney likely seeking, and when is he likely to receive it?
Tuesday, June 10, 2014
Vehicular Black Box: Superior Court of Pennsylvania Finds Event Data Recorder Evidence Admissible to Prove Speed
Until reading this article from the Pittsburgh Post-Gazette, I wasn't aware that a vehicle has an "event data recorder" akin to an airplane's "black box." And now, according to the Superior Court of Pennsylvania in Commonwealth v. Safka, such evidence is admissible to determine a car's speed at the time of an accident.
Monday, June 9, 2014
Engineered to Amaze?: Court In Lawsuit Against Quicken Loans Finds Rule 406 Doesn't Cover Testimony About Industry Practice
Federal Rule of Evidence 406 provides that
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
As the recent opinion of the United States District Court for the Southern District of West Virginia in Kingery v. Quicken Loans, Inc., 2014 WL 2521699 (S.D.W.Va. 2014), makes clear, Rule 406 "refers to the routine practice of a specific organization, not the customs and practices of an industry."
Friday, June 6, 2014
As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative.
Thursday, June 5, 2014
Federal Rule of Evidence 801(d)(1)(A) 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:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....
Meanwhile, Montana Rule of Evidence 801(d)(1)(A) provides 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 (A) inconsistent with the declarant's testimony....
So, what is the difference between these two Rules? Let's take a look at State v. Pound, 2014 WL 2515598 (Mont. 2014).
Wednesday, June 4, 2014
That's Childish: Article About Indiana Cold Case Reveals Shift in Hoosier State's Treatment of Child Witnesses
According to an article in IndyStar,
The 37-year-old murder case against Michael Ackerman came down to the medical evidence from a 1977 autopsy and the testimony of a then-3-year-old witness....
At the time, the testimony of a 3-year-old would not have been allowed in court. Retired Indianapolis police officer James Stobe testified Monday that, under existing rules of evidence at that time, children under the age of 7 were not considered competent witnesses. That rule changed in 1994, Strobe said. The new rule starts with a presumption that all children are competent to testify, unless that is challenged by the defense.
So, what was the prior rule?
Tuesday, June 3, 2014
Accoring to an article from the Johnson City Press,
A Kingsport man accused of being part of a scheme to steal a woman’s $500,000 inheritance was acquitted of his charge Monday after a judge ruled there was not sufficient evidence for a jury to deliberate on the case.
Roscoe Phillips, 25, went to trial Monday on a charge of theft over $60,000, but because the state had little more than two accomplices’ testimony, Criminal Court Judge Stacy Street granted a motion for acquittal.
Defense attorney Matt King made that motion after the state rested its case. King argued that the women, Pamela Perkey and Wendi Buckingham, were accomplices in the theft. According to the rules of evidence, testimony from an accomplice cannot be the basis for a conviction.
So, what is the relevant rule of evidence, and what does it mean about the other evidence of guilt presented by the prosecution?
Monday, June 2, 2014
Federal Rule of Evidence 609(a) provides that
(a) In General. 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; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
According to one famous study by Harry Kalven, Jr. and Hans Zeisel, "nationwide, juries learn of defendants' criminal records in seventy-two percent of the cases in which defendants testify in their own behalf." As a result, many such as John Blume have noted that even factually innocent defendants fail to testify on their own behalf. See John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record--Lessons from the Wrongfully Convicted, 5 J. Empirical Legal Stud. 477, 486, 490-91 (2008).
But does this decision make sense? It is rare to see a court address the power of Rule 609(a), but that's exactly what the Eleventh Circuit did in Pericles v. United States, 2014 WL 2198514 (11th Cir. 2014).
Sunday, June 1, 2014
JODI ARIAS MURDER CONVICTION PENALTY PHASE RETRIAL – NEW JURY TO BE SELECTED BEGINNING SEPTEMBER 8 – JUDGE REJECTS LIVE MEDIA COVERAGE AND MOTIONS TO TAKE DEATH PENALTY OFF THE TABLE
On May 8, 2013 in a high-profile first-degree murder case, Jodi Arias was convicted by a jury of killing her ex-boyfriend in 2008 in a particularly violent manner. The trial lasted five months, and many individuals were glued to their televisions watching the live proceedings. The jury determined that she was eligible for the death penalty, but after many hours of deliberation in the sentencing phase of the trial, they were unable to reach a unanimous verdict to impose death.
The State of Arizona decided to go forward with another proceeding on sentencing – with a new jury. The new jury is scheduled to be selected beginning on September 8, 2014. Judge Sherry Stevens has heard many closed-door hearings on the case and she recently decided to deny a request by media outlets to again provide live coverage. She ruled the proceedings could be recorded, but no release of the recording will be allowed until after the jury rules on the sentence. In the event the jury is unable to reach a unanimous verdict on the sentence, the Judge is to decide the sentence - but the death penalty will not be an option for the Judge.
Judge Stevens also ruled this week that Ms. Arias suffered no prejudice when a member of her defense team (a mitigation specialist) was barred for a time from visiting Ms. Arias in the Maricopa County jail. The defense team member was accused by the Maricopa authorities of smuggling out of the jail drawings prepared by Ms. Arias.
Ms. Arias had attempted multiple times to agree to life imprisonment but the State of Arizona has not accepted her requests.
Jon Stewart poked fun at the media for its coverage of the Arias trial - see: http://thedailyshow.cc.com/videos/jprb6v/nancy-grace---the-jodi-arias-trial.
Written by Ann M. Murphy, Professor, Gonzaga Law School
Thursday, May 29, 2014
The State of Ohio recently released its Bill of Particulars in the case of State of Ohio v. Michael McVey, 13-CR-228 - Court of Common Pleas for Jefferson County, Ohio (Judge Patricia Cosgrove). This was in response to a motion filed by the Defense for more information on the charges. The trial is scheduled for August 18, 2014. http://www.wtov9.com/news/features/top-stories/stories/details-mcveys-charges-released-4444.shtml
Superintendent Michael McVey was indicted (along with three others) last November in connection with the Steubenville rape case (football players Ma’lik Richmond and Trenton Mays were convicted of the rape of a 16-year old highly intoxicated woman (Jane Doe))
The New York Times described this whole episode as a lesson for adults. McVey told investigators he had no knowledge of the rape – he had only heard some vague rumors about the events that took place on August 11, 2012. http://www.nytimes.com/2013/11/27/sports/in-steubenville-rape-case-a-lesson-for-adults.html
The Ohio Attorney General begs to differ and three of the four administrators have accepted plea deals. Mr. McVey has pleaded not guilty. According to the AG, McVey wiped hard drives, erased emails, and lied to investigators. All of this was done in a cover-up to protect the star quarterback and one of his wide receivers, according to the State of Ohio.
A copy of the Bill of Particulars is available on this blog - http://prinniefied.blogspot.com/2014/05/steubenville-time-to-take-out-trash.html
Written by Ann M. Murphy, Professor, Gonzaga Law School
Wednesday, May 28, 2014
Dispatches from the Drug War: What’s the Proper Etiquette When You Are Responsible for a Weed Seizure?
This story on TMZ (“Sublime With Rome Weed Confiscated ... Linkin Park Ratted Us Out To Cops”) is indicative of the bizarre place this country has come to with respect to marijuana prohibition. (I should probably note that I heard about this on the radio this morning). Anyway, the article reports with disdain that a member of security for one band (Linkin Park) told Arizona police officers that members of another band (Sublime) were smoking marijuana. The police went to the band’s dressing room and found "several bags of marijuana" which they confiscated (hey, no search warrant?!) The story doesn’t reference any charges (what, why would there be charges?!) and includes this nugget that I think encapsulates the whole through-the-looking-glass world we have come to:
“A rep for Sublime … tells TMZ ... Linkin Park felt badly and offered to replace the weed that was taken. But the rep says the band refused and is still pretty pissed off about the whole thing.”
That’s nice that Linkin Park is trying to make things right. Next I expect an apology from the Arizona police....
Saturday, May 24, 2014
OJ SIMPSON APPEALS TO NEVADA SUPREME COURT ON HIS 2008 KIDNAPPING AND ARMED ROBBERY CONVICTION – THE DEFENDANT WHO SEEMINGLY WILL BE FOREVER IN THE NEWS
Just when you thought it was safe to go back in the water…yet another criminal case for OJ Simpson. This time it is his appeal to the Nevada Supreme Court for his October 3, 2008 conviction on 12 criminal charges (together with his friend CJ Stewart) of kidnapping and armed robbery in Nevada. Simpson’s defense at the trial was that he innocently went to a hotel room to retrieve his sports memorabilia. The State had a different take on it – it was a violent confrontation with a gun (Simpson was not holding the gun). On December 5, 2008 Simpson was sentenced to from 9 to 33 years in prison. He is eligible for parole in 2017.
Key evidence submitted by the State was audiotapes of Simpson and Stewart, both planning the confrontation as well as the confrontation in the hotel room itself. The tapes were secretly made by collectables middleman Thomas Riccio. Significant evidence provided by the Defense included, oddly enough more audiotapes – of the police laughing about how they were going to “get” Simpson, and of a witness seemingly indicating he would alter his testimony for money. Witness Riccio was cross-examined on the stand about the fact he was a convicted felon and that he accepted $210,000 from media sources for his story after the event. Judge Glass prohibited mention of Simpson’s 1995 murder trial for the deaths of Nicole Brown Simpson and Ronald Goldman, although it’s rather hard to believe anyone in America had not heard of the “trial of the century.”
This week Simpson’s lawyers submitted a request for the Nevada Supreme Court to hear his case, although they exceeded the Court’s 14,000-word limit and submitted a document with 19,993 words. In the request for appeal, Simpson maintains his attorney “botched” the case and the jury was biased based upon his notoriety.
http://www.cnn.com/2008/CRIME/10/04/oj.simpson.verdict/ (information on original conviction)
Written by Ann M. Murphy, Professor, Gonzaga Law School
Tuesday, May 20, 2014
In my former life as a litigator for the Internal Revenue Service (someone had to do it), I was always amazed at the “deer in the headlight” looks I received when I informed an attorney that he/she waived the attorney-client privilege by including in his/her pleading something to the effect of, “and petitioner is not liable for penalties as she relied upon advice of counsel.” Yes, it is time to turn over that advice of counsel. The privilege is waived.
But what if, instead of indicating the petitioner relied upon advice of counsel, the pleading simply states the following:
there is or was substantial authority for the Partnership’s and its partners’ tax treatment of any items resulting in an underpayment of tax, and the Partnership and its partners reasonably believed that their tax treatment of such items was more likely than not the proper [tax] treatment: and
any underpayment of tax was due to reasonable cause and with respect to which the Partnership and its partners acted in good faith.
Would that language in a pleading waive the attorney-client privilege? The United States Tax Court said yes. See: AD Investment 2000 Fund LLC, Community Media, Inc. and AD Global 2000 Fund, LLC, Warsaw Television Cable Corp. v. Commissioner, 142 T.C. No 13 (April 16, 2014), (AD Investment and AD Global) available at: http://www.ustaxcourt.gov/InOpHistoric/adinvestmentdiv.halpern.TC.WPD.pdf. The Tax Court granted the IRS’s motion to compel the production of six opinion letters from the law firm of Brown & Wood, LLP and further indicated it would impose sanctions if the petitioners failed to comply.
The consolidated case arises out of the ominous sounding “Son of BOSS” tax shelter that was sold to investor partnerships (and LLCs) in the 1990s. The world came crashing down on Son of BOSS and in fact the law firm of Sidley & Austin, which merged with Brown & Wood, paid a $39.4 million civil tax shelter promoter penalty to the IRS in 2007. Now those partnerships and LLCs that did not take advantage of the government’s Son of BOSS settlement initiative (IRS Announcement 2004-46) are in court, including these two LLCs (that elected to be taxed as partnerships) at issue, AD Investment and AD Global.
Despite what was undoubtedly thought to be a careful wording of the pleading, Judge Halpern wrote in a full Tax Court opinion that, “by putting the LLCs’ legal knowledge and understanding into contention in order to establish a good-faith and state-of-mind defenses, [petitioners] forfeit the LLCs’ privilege protecting attorney-client communications relevant to the content and the formation of their legal knowledge, understanding, and beliefs.”
AD Investments and AD Global argued that “the petitions do not assert any advice-of-counsel defense, nor do they mention (or even allude to) any advice from the attorneys.” Judge Halpern cited to U.S. v. Exxon Corp., 94 F.R.D. 246, 248 (D.D.C. 1981) and to Professor Paul R. Rice’s evidence treatise (“the most common situation in which courts have found waiver is where the client claims that he acted on the ‘good faith’ belief that his conduct was reasonable and legal”) and determined the privilege was waived. He stated the following: “it is only fair that respondent [the government] be allowed to inquire into the bases of that person’s knowledge, understanding, and beliefs including the opinions (if considered).”
A tax practitioner must be especially careful not to waive the attorney-client privilege unless he/she intend to do so. See: Lee Sheppard, The Tax Court Didn’t Repeal Attorney-Client Privilege, Forbes 4/20/14 (privilege is easily waived in tax cases); and Claudine V. Pease-Wingenter, Skating Too Close to the Edge: A Cautionary Tale for Tax Practitioners about the Hazards of Waiver, 81 U. Cin. L. Rev. 953 (2013) (attorney-client privilege waiver is a “huge trap for the unwary”).
Written by Ann M. Murphy, Professor, Gonzaga Law School