EvidenceProf Blog

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.

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No Exit: Florida Court Deems Evidence of Attempted Suicide Admissible to Prove Consciousness of Guilt

An individual is a suspect in a crime. That individual flees from the relevant jurisdiction and hides out in another jurisdiction before being apprehended and charged with the subject crime. At trial, the prosecution will be able to present evidence of the defendant's flight as circumstantial evidence of his consciousness of guilt.

An individual is a suspect in a crime. The individual tries to kill himself. At trial, will the prosecution be able to present evidence of the defendant's suicide attempt as circumstantial evidence of his consciousness of innocence? According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in Sloan v. State, 2013 WL 85449 (Fla.App. 4 Dist. 2013), the answer is "yes."

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Joe Paterno, Grand Jury Presentments, and the Rule Against Hearsay

Last week, Brian Gallini presented the paper, Bringing Down a Legend: How an 'Independent' Grand Jury Ended Joe Paterno's Career, at the University of South Carolina School of Law. The paper deals with Pennsylvania's grand jury presentment, a grand jury communication to the public concerning the grand jury's investigation. While Federal Rule of Criminal Procedure 6(e)(2) and many state counterparts ensure the secrecy of grand jury proceedings, the presentments issued in Pennsylvania and other states allow grand juries to serve as the mouthpiece of prosecutors, who can prove their cases in the court of public opinion. Sometimes, however, a grand jury presentment isn't just about proving a case. Professor Gallini uses the Jerry Sandusky/Joe Paterno imbroglio as an avenue through which to discuss the conceptual problem of grand jury presentments and third parties who are not the subjects of grand jury investigations. This was certainly the case in Pennsylvania when a grand jury was convened to investigate allegations of child molestation against Jerry Sandusky and ended up issuing a presentment that ensnared the legendary coach in its net. The result of the presentment for Sandusky was that his case could proceed to trial. The result for Paterno was that he could be fired from his job. We might think that both of these were the correct results, and they might indeed both have been proper outcomes.

But that's not really that question. The question, according to Gallini, is the process (not) afforded to Paterno and other third parties mentioned in grand jury presentments. Most grant juries proceed with a prosecutor presenting his case to grand jurors with no role for defense counsel to present any evidence or cross-examine any witnesses. Prosecutors generally have no obligation to present exculpatory evidence to grand jurors, and they can present evidence that was unconstitutionally obtained and inadmissible under the rules of evidence. To what extent should the press report, and the public believe, findings in a grand jury presentment? What about employers? And to what extent does the analysis change when those findings relate to third parties rather than the target of the grand jury investigation? These are fascinating questions, and they have already led my colleague Derek Black to write an interesting post on the subject at The Faculty Lounge.

In this post, I will focus on Evans v. Com., Unemployment Compensation Bd. of Review, 484 A.2d 822 (Pa.Cmwlth 1984), which deals with some of these issues and the question of whether a grand jury presentment is hearsay when admitted to prove the reason why a third party mentioned in it was fired.

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The Rule of Evidence That's Never Applied, Take 2: Former Juror as Witness

Federal Rule of Evidence 606(a) 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.

As noted in yesterday's post, I have yet to come across a case in which a member of the jury testified or was precluded from testifying pursuant to Rule 606(a). But I have come across two cases in which former jurors were precluded from testifying. One of those cases is Broadhead v. State Farm Mut. Auto. Ins. Co., 579 N.W.2d 761 (Wis.App. 1998), which I discussed yesterday. The other case is People v. Knox, 157 Cal.Rptr. 238 (Cal.App. 1979), which I will discuss today. 

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The Rule of Evidence That's Never Applied: Federal Rule of Evidence 606(a) and Jurors as Witnesses

Federal Rule of Evidence 606(a) 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.

As long as I have been teaching Rule 606(a), I haven't come across a single case in which the Federal Rule of a state counterpart has been applied. If any readers are aware of any such cases, please pass them along. Meanwhile, in the next 2 days, I will post entries about cases that almost involved application of Rule 606(a). Both of them involve similar fact patterns: a juror discharged by the judge later being called as a witness by one of the parties.

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Structural Integrity: District of Minnesota Finds Judicial Testimony is Not Normally Structural Error

Federal Rule of Evidence 605 provides that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

But while a party does dot need to object to a judge's testimony to preserve the issue for appellate review, is judicial testimony normally structural error necessitating a new trial without a showing of actual prejudice? According to the recent opinion of the United States District Court for the District of Minnesota in Kachina v. Roy, 2012 WL 6965116 (D. Minn. 2012), the answer is "no."

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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.

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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).

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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).

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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."

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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

Back in the Habit: Supreme Court of West Virginia Finds Jury Instruction Constituted Improper Habit Evidence

Similar to its federal counterpart, West Virginia Rule of Evidence 406 provides that 

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 

If you're looking for a great case to read to understand the ins and outs of Rule 406, you need look no further than Rodgers v. Rodgers, 399 S.E.2d 664 (W.Va. 1990).

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Habit Forming Behavior: Court of Appeals of Michigan Finds Doctor's Testimony About Blood Draw Admissible Under Rule 406

Similar to its federal counterpart, Michigan Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

A student in my Evidence class today asked whether expert witnesses may testify regarding their habit of complying with certain procedures pursuant to Rule 406. Let's take a look at Zyskowski v. Habelmann, 388 N.W.2d 315 (Mich.App. 1986), to see the answer.

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Truth & Consequences: Court of Appeals of Minnesota Finds No Rule 608(b) Error With Sergeant's Misconduct

Similar to its federal counterpart, Minnesota Rule of Evidence 608(b) provides that

Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

I think that the Court of Appeals of Minnesota in State v. Sherman, 2013 WL 399242 (Minn.App. 2013), erred in precluding the defendant from impeaching a sergeant with evidence of past misconduct under Rule 608(b). Do you agree?

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Incommunicado: Court of Appeals of Texas Finds Trial Court Properly Precluded Defendant From Admitting Character Evidence

Texas Rule of Evidence 404(a) provides that

Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:  

(1) Character of accused. Evidence of a pertinent character trait offered:  

(A) by an accused in a criminal case, or by the prosecution to rebut the same, or  

(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;  

(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;  

(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.

Moreover, Texas Rule of Evidence 405(a) provides that

In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

In other words, at a criminal trial in which the defendant is not being prosecuted for homicide, unless the defendant introduces propensity character evidence, the prosecution cannot introduce propensity character evidence ("once a criminal, always a criminal," "once a burglar, always a burglar, etc."). The defendant, however, can open Pandora's box and present propensity character evidence concerning himself and/or the alleged victim. As Rule 405(a) makes clear, however, the only proper form of evidence that a character witness can render on direct examination is reputation ("I've been the victim's neighbor for the past 5 years, and he has a terrible reputation in the neighborhood for violence.") and opinion ("I've known the victim for 5 years, and in my opinion, he's a violent person") testimony. Moreover, as Rule 404(a) makes clear, once the defendant has presented propensity character evidence, the prosecution can then rebut this evidence with its own propensity character evidence. 

As the recent opinion of the Court of Appeals of Texas in Williams v. State, 2013 WL 341900 (Tex.App.-Dallas 2013), makes clear, however, none of the above matters if a defendant is introducing character evidence under the "communicated character " doctrine.

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Not a Happy Ending: Eastern District of Michigan Finds Habit Evidence Inadmissible in Masseuse's Appeal

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.

So, let's say that a masseuse is charged with one count of third-degree criminal sexual conduct and six counts of fourth-degree criminal sexual conduct after four of his clients accused him of inappropriately touching them while he was massaging them. Can the masseuse call several of his other clients to testify pursuant to Rule 406 that he never inappropriately touched them? According to the recent opinion of the United States District Court for the Eastern District of Michigan in Parr v. Berghuis, 2012 WL 5906860 (E.D.Mich. 2012), the answer is "no."

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Did You Notice That?: Western District of Virginia Details Notice Obligation Under Rule 404(b)

Federal Rule of Evidence 404(b)(2) provides that character

evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

In other words, Rule 404(b)(2) contains a pre-trial notice requirement, pursuant to which the prosecution has a certain notice obligation when the defendant makes a relevant request. But what is the exact nature of that obligation? Let's take a look at the opinion of the United States District Court for the Western District of Virginia in United States v. Powell, 2007 WL 1839743 (W.D.Va. 2007).

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10 Days Late: SDNY Finds 10 Days Advance Notice Sufficient For Rule 404(b) Purposes

Federal Rule of Evidence 404(b)(2) provides that character evidence

may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:  

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and  

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

So, how much notice is reasonable notice? Let's take a look at the recent opinion of the United States District Court for the Southern District of New York in United States v. Filippi, 2013 WL 208919 (S.D.N.Y. 2013).

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The Thin White Line: 3rd Circuit Seems to Imply Repainting White Line At Railroad Crossing Might Be Admissible Despite Rule 407

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:

• negligence;
• 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.

So, let's say that a motorcyclist is approaching a railroad crossing, sees a train approaching, and tries to hit the brakes, but his front brake locks and he flies over his handlebars, crashing into the train and becoming partially paralyzed. In addition, assume that before the accident, there was a white line indicating the presence of a railroad crossing before the point at which the motorcyclist hit his brakes but that the line had faded at the time of the accident and was repainted after the accident. Will evidence of the repainting of the line be admissible or excluded under Rule 407? Let's take a look at the recent opinion of the Third Circuit in Zimmerman v. Norfolk Southern Corp., 2013 WL 238789 (3rd Cir. 2013).

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As I Lay Dying?: Court of Appeals of Michigan Finds Written Statement to be a Dying Declaration

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

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Usually, this "dying declaration" exception applies to oral statements, but, as the recent opinion of the Court of Appeals of Michigan in People v. Thompson, 2013 WL 276042 (Mich.App. 2013), makes clear, it can also apply to written statements.

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