Thursday, April 23, 2015
No Contact: Superior Court of Pennsylvania Reacts to Violation of Sequestration Order by...Lifting the Order
At a party’s request the court may order witnesses sequestered so that they cannot learn of other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize sequestering:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person (including the Commonwealth) after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute or rule to be present.
So, assume that a judge orders a witness sequestered and tells him not to discuss the case with prior witnesses. Further, assume that the witness violates this sequestration order by talking to a prior witness. You'd expect there to be severe consequences for that witness, right? So why wasn't that the case in Koller Concrete, Inc. v. Tube City IMS, LLC, 2015 WL 1788772 (Pa.Super. 2015)?
Wednesday, April 22, 2015
Medical Examiner & Pathology Professor Leigh Hlavaty, M.D. on Livor Mortis, Rigor Mortis & Skin Slippage for Hae Min Lee
Last week, I forwarded the autopsy report for Hae Min Lee as well as her autopsy photos to Leigh Hlavaty, M.D., who is (1) the Deputy Chief Medical Examiner for the Wayne County Medical Examiner's Office in Detroit, Michigan; and (2) a Clinical Assistant Professor of Pathology at the University of Michigan. After she reviewed these materials, I asked for her thoughts about the evidence and arguments by the State regarding livor mortis, rigor mortis, and skin slippage at the trial of Adnan Syed for murdering Hae. In this post, I will set forth what I told and asked her, followed by her complete response.
Tuesday, April 21, 2015
Virginia’s “Trap for the Unwary”: Loopholes in State Evidence Rules Protecting Settlement Discussions
Modern litigation tactics revolve as much around settling a case as winning it at trial. One critical aspect of these tactics is settlement discussions. In an effort to “promot[e] the public policy favoring the compromise and settlement of disputes,” the federal rules of evidence go to great lengths to prohibit the admission of settlement discussions. The idea is that parties will be more willing to engage in settlement discussions if they know that nothing they say in those discussions can hurt their overall litigation position, should they fail to reach agreement.
For this reason, Congress and the federal rules’ drafters rejected common law exceptions to the inadmissibility of settlement communications (e.g., exceptions for “factual admissions”), explaining:
The exception for factual admissions was believed by the Advisory Committee to hamper free communication between parties and thus to constitute an unjustifiable restraint upon efforts to negotiate settlements--the encouragement of which is the purpose of the rule. Further, by protecting hypothetically phrased statements, it constituted a preference for the sophisticated, and a trap for the unwary.
Now take a look at Virginia Rule of Evidence 2:408:
Evidence of offers and responses concerning settlement or compromise of any claim which is disputed as to liability or amount is inadmissible regarding such issues. However, an express admission of liability, or an admission concerning an independent fact pertinent to a question in issue, is admissible even if made during settlement negotiations. . . . .
Notice that Virginia retains the “trap for the unwary.” Attorneys who fail to couch their (and their clients’) settlement-related statements in hypothetical-ese or qualifying language like “without prejudice,” risk their statements being classified as an “admission concerning an independent fact” or an “express admission of liability” and coming back to bite them in a Virginia trial. Here is further discussion of the issue from my book:
Monday, April 20, 2015
Today, we released the Addendum to the first episode of the Undisclosed Podcast. The Addendum deals with a pretty essential part of the prosecution's narrative presented at the trial of Adnan Syed for murdering Hae Min Lee on January 13, 1999. You can tell just how essential this part was by looking at this portion of the prosecution's closing argument:
Friday, April 17, 2015
I Read the News Today, Oh Boy: Indiana Murder Conviction Tossed Due to Juror Reading News Articles About Case
(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) any juror's drug or alcohol use;*
(B) extraneous prejudicial information was improperly brought to the jury's attention;
(C) an outside influence was improperly brought to bear on any juror; or
(D) a mistake was made in entering the verdict on the verdict form.
There has been a lot of talk recently about so-called Google mistrial based upon the slew of recent cases in which jurors have looked up information on the internet rather than relying solely upon the evidence admitted at trial. That said, there are still plenty of cases in which mistrials are granted based upon jury misconduct of the more traditional variety.
Thursday, April 16, 2015
While researching the Adnan Syed case, I became curious about why he was absent on January 19, 1999 due to "Observation of Religious Holiday." In 1999, Ramadan ended on January 17th, prompting me to wonder what religious holiday was observed on January 19th. It turns out the January 19th was Eid al-Fitr.
Eid al-Fitr is a Muslim holiday that marks the end of Ramadan, the Islamic holy month of fasting (sawm). Eid is an Arabic word meaning "festivity", while Fiṭr means "to break fast"; and so the holiday symbolizes the breaking of the fasting period. It is celebrated after the end of the Islamic month of Ramadan, on the first day of Shawwal.
The observance of both Ramadan and Ei al-Fitr have led to some interesting First Amendment prison lawsuits, as is made clear by the opinion by the United States District Court for the Western District of Wisconsin in Perez v. Frank, 2007 WL 1101285 (W.D.Wis. 2007).
Wednesday, April 15, 2015
Judgy: 7th Circuit Finds No Problem With Judge's 11 Minute Interrogation of Defense Expert During Sentencing
Federal Rule of Evidence 614(b) provides that
The court may examine a witness regardless of who calls the witness.
That said, such examination is improper if the judge abandons neutrality and becomes something in the way of an advocate for one of the parties. If a judge engages in a 11 minute interrogation of the defendant's expert witness in a way that mimics a cross-examination, has this line been crossed? Let's take a look at the recent opinion of the Seventh Circuit in United States v. Modjewski, 2015 WL 1610497 (7th Cir. 2015).
Tuesday, April 14, 2015
This is the second in a series of posts reporting a few findings from my just-published book, “The Virginia and Federal Rules of Evidence: A Concise Comparison with Commentary”
The first post is here. This second post focuses on some of Virginia’s unique credibility impeachment rules, and particularly Rule 2:608(e). In all the Virginia evidence code, this is the rule most in need of rethinking.
In the wake of all the recent national media attention regarding sexual assault prosecutions, Virginia’s Rule 2:608(e) may be of general interest. The provision reads:
(e) Prior false accusations in sexual assault cases. Except as otherwise provided by other evidentiary principles, statutes or Rules of Court, a complaining witness in a sexual assault case may be cross-examined about prior false accusations of sexual misconduct.
As the Virginia rule departs from its federal analogue, I discuss it my commentary section, noting its direct derivation from case law:
[U]nder Rule 2:608(e), a complaining witness in a sexual assault case can be cross-examined about prior false accusations of sexual misconduct; and extrinsic evidence is permitted to substantiate a charge that a past accusation was false. See Clinebell v. Com., 235 Va. 319, 325, 368 S.E.2d 263, 266 (Va. 1988) (“in a sex crime case, the complaining witness may be cross-examined about prior false accusations, and if the witness denies making the statement, the defense may submit proof of such charges”).
As I further explain, allowing cross-examination with prior false allegations is not itself noteworthy. In fact, the federal rules permit just that in Rule 608(b). And it is widely recognized that inquiry into prior false allegations of sexual misconduct is not barred by Rape Shield provisions. But Virginia law is different in an important, if largely unheralded way.
The federal rules (and most state analogues) permit impeachment of any witness with specific instances of conduct that is “probative of the character for truthfulness.” Thus, in most jurisdictions any witness can be cross-examined about prior false allegations they have made. Virginia’s rules, however, do not permit this kind of cross-examination except when it comes to one specific type of witness: “a complaining witness in a sexual assault case.” Rule 2:608(e); 2:608(b).
That’s right you don’t need a time machine to see a special rule of credibility impeachment that only applies to sexual assault victims. You can find it in Virginia’s recently codified evidence rules. As I write this, I am a stone’s throw away from Colonial Williamsburg working at the country’s first law school -- founded by Thomas Jefferson. History is nice. But this rule is from the wrong side of history.
Yesterday was the premiere of the first episode of "Undisclosed: The State v. Adnan Syed." We had some recording difficulties while doing the group recording of Rabia, Susan, and myself, so we each ended up having to record individual parts that were stitched together. As a result, the final recording has some varying volumes, not enough free flowing conversation, and what I regard as some stilted delivery on my part (it's a lot tougher to talk to a computer screen than someone else). That said, I'm very proud of the finished product and the hard work that was put into creating it. If you enjoyed the first episode, be sure to check out the second episode on April 27th. And, if you're not sold after the first episode, I feel like I can guarantee that the quality of the second episode will be much higher for a variety of reasons.
I've already been getting some good feedback about my comments about Debbie's testimony at the first and second trials and the difference between guilt and innocence. Given that feedback, I thought I'd expand upon my comments from the podcast in a blog post.
Monday, April 13, 2015
This is the introduction to a short series of posts reporting selected findings from my most recent project, a concise reference volume comparing the Virginia and Federal Rules of Evidence. Book-length federal-to-state evidence rule comparisons exist for most major United States jurisdictions, including California (Miguel Mendez), Florida, New York and Texas (Peter Nicolas). Until now, Virginia has been a notable omission.
Not coincidentally, Virginia codified its evidence rules in 2012 – yes, only three years ago! (Kent Sinclair of the University of Virginia headed the codification project.) Prior to codification, Virginia’s evidence rules consisted of a judge-made common law of evidence supplemented by sporadic (often clumsy) statutory interventions. If you wanted to make an evidence objection in a Virginia court, your best bet was to reference the dominant treatise. Everyone could then consult their copy of the 1000+ page behemoth and argue vociferously. It was like practicing in Colonial times, only with air conditioning.
The 2012 codification project sought to put an end to the evidentiary chaos. A side benefit of the codification is that by crystalizing its own evidence rules, Virginia allowed those rules to be contrasted with other codified evidence rules, such as the Federal Rules of Evidence, in a concise volume. Three years later (I had some other things to do as well!) my book arrived.
The most obvious utility of this series, and my book, is for attorneys or law students who learned evidence with the federal rules (as most do), but practice in Virginia courts. (Virginia policymakers should take a look as well.) But don’t feel left out if you don’t fall in those categories. The book’s exploration of distinctions between two longstanding, deeply considered evidence codes also highlights important policy choices made by the evidence rule makers in the respective jurisdictions. I learned as much about the Federal Rules as I did about the Virginia Rules in taking on this project.
Today at 2:00 P.M., Rabia Chaudry, Susan Simpson, and I will be posting the first episode of our new podcast, "Undisclosed," at http://undisclosed-podcast.com. The podcast will deal with the legal intricacies of the prosecution of Adnan Syed for murdering Hae Min Lee and new discoveries that have been made in the case since the Serial Podcast last aired. To tide you over until that episode is posted, here is a post about some interesting new medical discoveries in the case:
At both of the trials of Adnan Syed for murdering Hae Min Lee, Assistant Medical Examiner Margarita Korell gave testimony indicating why she believed that Hae had been dead for weeks before she was discovered. Here is part of her testimony from Adnan's first trial (pages 27-28):
Meanwhile, here is part of her testimony from the second trial (page 42):
Given what I know about rigor mortis, I was confused by this testimony about Hae's body still having "some rigor" that "was easily broken." This is because I could point to any number of cases in which experts have testified that the presence of "some rigor" that was "easily broken" was consistent with death less than 36 hours or so before discovery. For example, according to the Report of Cyril H. Wecht, M.D., J.D., in Schilling v. Baldwin, 2002 WL 33004188 (E.D.Wis. 2002),
as long as rigor is present, even if “easily broken”,...the decedent has been dead less than 36 hours.
Dr. Korell's testimony led me to consult with a medical examiner and some pathology residents, and they concluded the following: Either (1) Dr. Korell was wrong; or (2) Hae was dead at most a few days before she was discovered. This post will explain why I think Dr. Korell must be wrong and how it led to two conclusions: (1) Hae was in a face down position for at least 24 hours after death; and (2) the "right side" burial described in Hae's autopsy report was actually a back/right burial.
Friday, April 10, 2015
Fair Warning, Take 2: When Is It Feasible to Give Some Warning Before Using Lethal Force Against a Suspect?
I've gotten some good feedback and questions in response to my post yesterday regarding the shooting of Walter Scott. The point of that post was to note that, even if it was otherwise reasonable for the officer to shoot Scott, this use of lethal force was still unreasonable if (1) the officer failed to give a warning prior to shooting; and (2) such a warning was feasible. The main question I have gotten is: When is such a warning not feasible?
Let's take a look at the opinion of the United States District Court for the District of Arizona in Hulstedt v. City of Scottsdale, 884 F.Supp.2d 972 (D. Ariz. 2012).
Thursday, April 9, 2015
I've been asked a lot today about the shooting of Walter Scott. The topic that always comes up is the so-called "fleeing felon" rule. Here is the thumbnail explanation of this rule by the Supreme Court in Tennessee v. Garner:
This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
Obviously, anyone watching the video of the shooting likely has serious doubts about whether such probable cause could have existed. Even if those doubts could be quelled, however, there is a second problem for the police officer who shot Scott. In a later portion of the Garner opinion, the Court noted that
if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
In other words, even if the police officer who shot Scott could establish probable cause, he had to give some warning (e.g., "Stop or I'll shoot) before using lethal force...if such a warning was feasible. Given that the video of the shooting seems to show no such warning, the question becomes whether a warning was feasible.
The clear answer seems to be "yes." As far as we can tell, Scott did not have a weapon. He was in a small park off a dirt road, not a crowded intersection. Moreover, Scott was a 50 year-old man who seemed to be lumbering in the wake of an altercation with the officer, not a spry young man sprinting away. Given these circumstances, it seems likely that some warning was feasible, meaning that the officer's use of lethal force was unreasonable even if he somehow did have probable cause to believe that Scott posed "a significant threat of death or serious physical injury to the officer or others." See, e.g., Pablo Hernandez v. City of Miami, 302 F.Supp.2d 1373, 1377 (S.D.Fla. 2004).
Confrontation Clause aficionados will recall the Supreme Court's decision in Bullcoming v. New Mexico (2011), in which the Court deemed a "forensic laboratory report certifying that [defendant] Bullcoming’s blood-alcohol concentration was well above the threshold for aggravated DWI" to be testimonial hearsay. The Court held that admission of the lab report against Bullcoming, absent an opportunity to cross-examine the report's author, violated the defendant's rights under the Sixth Amendment.
According to the Court, "On the day of trial, the State announced that it would not be calling SLD analyst Curtis Caylor as a witness because he had 'very recently [been] put on unpaid leave' for a reason not revealed."
With Caylor absent, the prosecution introduced (over the defense's objection) the lab report as a business record, using the testimony of another lab employee (Gerasimos Razatos, who did not conduct the test at issue) to authenticate the report and to explain the lab's usual procedures.
The Court identified a significant problem with use of a substitute lab witness: "Razatos had no knowledge of the reason why Caylor had been placed on unpaid leave. With Caylor on the stand, Bullcoming’s counsel could have asked questions designed to reveal whether incompetence, evasiveness, or dishonesty accounted for Caylor’s removal from his work station." Also, Razatos simply could not testify about what Caylor actually did (or did not do) that was relevant to Bullcoming's criminal case.
Before discussing Bullcoming the other day with my Evidence class, I spent a few minutes investigating what happened to Caylor. It turns out that he was sentenced to prison last year after pleading guilty to receipt of child pornography. (I have confirmed with an employee of the New Mexico state lab at which Caylor once worked that the person who pleaded guilty is the same Curtis Caylor.) Because the child porn arrest came some years after Caylor left his lab job, it doesn't look like he was suddenly put on leave for anything related to this particular crime. But it does add further credibility to the argument that Caylor left his job under fishy circumstances about which the Bullcoming defense team might well have wished to inquire.
So for those who stress the importance of cross-examination in the context of lab reports offered against criminal defendants, there is another anecdote that would seem to bolster that cause.
The story of Annie Dookhan, who once worked as an analyst at the Massachusetts lab at issue in Melendez-Diaz v. Massachusetts (U.S. 2009), is probably the most famous such anecdote. Dookhan pleaded guilty in 2013 to dozens of crimes related to tampering with evidence at the state drug lab and was sentenced to three-to-five years' imprisonment. Massachusetts officials, as well as defense lawyers, are still dealing with the aftermath of the ensuing scandal.
- Ben Trachtenberg
Wednesday, April 8, 2015
Per Se Pro Se: 5th Circuit Finds No Problem With Admission of Former Testimony Against Defendant Denied Right to Proceed Pro Se
Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for
Testimony [by a now "unavailable" declarant] that:
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Assume that (1) a witness for the prosecution testifies against a defendant at a first trial, resulting in his conviction; (2) the defendant later has his conviction reversed based upon a finding that he was denied his right to proceed pro se; and (3) the witness for the prosecution dies before the defendant's second trial. Should the prosecution be able to present the deceased witness's testimony from the first trial at the defendant's second trial pursuant to Federal Rule of Evidence 804(b)(1)?
This was the question addressed by the Fifth Circuit in its recent opinion in United States v. Richardson, 2015 WL 1283694 (5th Cir. 2015). I disagree with its conclusion.
Tuesday, April 7, 2015
When I was a law student, every student teamed up and went against another team in mock trial simulations. In my wife's trial, her partner and she were defense counsel. After the "prosecutors" in their case rested, my wife and her partner moved for a directed verdict based on failure to present evidence from which a reasonable juror could find guilt beyond a reasonable doubt on each element of the crime charged. The judge in the case said he would have granted the motion in an actual case and asked the "prosecutors" why they hadn't presented more evidence. Their response: "We were waiting to introduce that evidence during the defense case." The judge allowed the "prosecutors" to reopen their case as a learning experience but told them that he wouldn't have given them the same dispensation in an actual case.
In the recent case, United States v. Never Misses a Shot, 2015 WL 1427370 (8th Cir. 2015), however, the judge gave just such a dispensation to the prosecution. Was this proper?
Monday, April 6, 2015
Play It Again: Court of Appeals of Minnesota Finds No Problem with Replaying Victim's Statement During Deliberations
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.
While a "recorded recollection" cannot be introduced as an exhibit by the proponent, can it be replayed for the jury during deliberations? According to today's opinion by the Court of Appeals of Minnesota in State v. Johnson, 2015 WL 1514071 (Minn.App. 2015), the answer is "yes." I disagree.
Friday, April 3, 2015
Texas recently changed its rule regarding impeachment of witnesses through prior inconsistent statements. Texas Rule of Evidence 613(a) reads as follows:
(a) Witness’s Prior Inconsistent Statement.
(1) Foundation Requirement. When examining a witness about the witness’s prior inconsistent statement—whether oral or written—a party must first tell the witness:
(A) the contents of the statement;
(B) the time and place of the statement; and
(C) the person to whom the witness made the statement.
(2) Need Not Show Written Statement. If the witness’s prior inconsistent statement is written, a party need not show it to the witness before inquiring about it, but must, upon request, show it to opposing counsel.
(3) Opportunity to Explain or Deny. A witness must be given the opportunity to explain or deny the prior inconsistent statement.
(4) Extrinsic Evidence. Extrinsic evidence of a witness’s prior inconsistent statement is not admissible unless the witness is first examined about the statement and fails to unequivocally admit making the statement.
(5) Opposing Party’s Statement. This subdivision (a) does not apply to an opposing party’s statement under Rule 801(e)(2).
Conversely, Texas Rule of Evidence 613(a) used to read as follows:
In examining a witness concerning a prior inconsistent statement made by the witness, whether oral or written, and before further cross-examination concerning, or extrinsic evidence of, such statement may be allowed, the witness must be told the contents of such statement and the time and place and person to whom the statement was made, and must be afforded an opportunity to explain or deny such statement. If written, the writing need not be disclosed to the witness at that time, but on request the same shall be shown to opposing counsel. If the witness unequivocally admits having made such statement, extrinsic evidence of same shall not be admitted. This provision does not apply to admissions of a party-opponent as defined in Rule 801(e)(2).
So, how is this a change from prior Texas practice?
Thursday, April 2, 2015
A few weeks ago, I did a post about pulmonary edema and sputum. As I noted,
Pulmonary edema is a condition caused by excess fluid in the lungs. This fluid collects in the numerous air sacs in the lungs, making it difficult to breathe....
If a person has a severe pulmonary edema, she might have a pink frothy sputum, i.e., mucous material from the lungs. In rare cases, this sputum will come out of the person's mouth and/or nose, with the sputum appearing pink based on the combination of blood, mucus, and other watery fluids.
I wrote this post based on the prosecution of Adnan Syed for murdering his ex-girlfriend, Hae Min Lee. The prosecution's theory of the case was that Adnan strangled Hae in her Sentra, resulting in a pulmonary edema and sputum coming out of of Hae's nose and mouth while she was still in the passenger compartment of her Sentra. According to the prosecution, Adnan then wiped the sputum that had come out of Hae's nose and mouth, which explained a stained t-shirt that was crumpled up next to the driver's seat in the Sentra. This t-shirt was one of only two pieces of physical evidence tending to establish that Hae was strangled in her Sentra, with the other being a "broken" windshield wiper or turn signal lever.
Given how important this edema/sputum/t-shirt theory was for establishing that Hae was killed in her car, you would expect that fluids found in around Hae's mouth and nose would have been tested by the State. And they (apparently) were. From the list of "Photo Exhibits of State":
Wednesday, April 1, 2015
I've always wondered whether a plaintiff could bring a successful libel/slander/defamation claim based upon statements made on April 1st, i.e., April Fools' Day. In looking at some case law, it seems that such a claim can be successful but is difficult to prove. For instance, consider the opinion of the Superior Court of Connecticut in Victoria Square, LLC v. Glastonbury Citizen, 891 A.2d 142 (Conn.Super. 2006).