Monday, April 7, 2014
Anybody Want a Peanut: Peanut Butter Salmonella Trial Raises Questions Regarding Admissibility of ADHD Testimony
Federal Rule of Evidence 702 states that
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Do you remember the salmonella outbreak in 2008-2009 that was the result of tainted peanut butter and caused nine to die and 700 others to become ill? Well, a trial involving that outbreak is gearing up, and a question has arisen regarding the admissibility of expert testimony under Rule 702. But that expert testimony doesn't concern the actual outbreak itself; it relates to the alleged ADHD of one of the defendants.
Thursday, April 3, 2014
Two Weeks Notice: Court of Appeals of Mississippi Finds Defendant Failed to Comply With Rape Shield Rule
Mississippi Rule of Evidence 412 generally precludes the admission of an alleged victim's past sexual behavior in a sexual assault case, subject to a few exceptions, including evidence of prior sexual acts between the victim and the accused. If, however, the defendant wants to present such evidence, he must comply with Mississippi Rule of Evidence 412(c), which reads as follows:
(1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim.
(2) The motion described in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subdivision (b), the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses including the alleged victim, and offer relevant evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue.
(3) If the court determines on the basis of the hearing described in paragraph (2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined.
These requirements were the problem for the defendant in McNair v. State, 2014 WL 1189931 (Miss.App. 2014).
Wednesday, April 2, 2014
Today, in a per curiam order, the Supreme Court of Pennsylvania denied Jerry Sandusky's Petition for Allowance of Appeal. In other words, the Pennsylvania Supremes will not hear Sandusky's appeal from his convictions for child molestation. Looking at some of the arguments made by Sandusky, it is easy to see why the Court reached this conclusion. One of Sandusky's main arguments was that the trial court erred by issuing the following jury instruction:
Now, the defense has offered evidence tending to prove that the defendant is of good character. I'm speaking of the defense witnesses who testified that the defendant has a good reputation in the community for being law abiding, peaceable, nonviolent individual.
The law recognizes that a person of good character is not likely to commit a crime which is contrary to that person's nature. Evidence of good character may by itself raise a reasonable doubt of guilt and require a verdict of not guilty.
So you must weigh and consider the evidence of good character along with the other evidence in this case and if on the evidence you have a reasonable doubt of the defendant's guilt, you may find him not guilty....But in making that determination, you may consider evidence of good character which you believe to be true.
Tuesday, April 1, 2014
According to the article, Toyota case shows it’s hard to prosecute execs,
Efforts to conceal the extent of dangerous car defects at Toyota Motor Corp. were so pervasive, prosecutors say, that an exasperated employee at one point warned that ‘‘someone will go to jail if lies are repeatedly told.’’
Yet no one has gone to jail, nor is anyone likely to.
The reason? The rules of evidence and more specifically the rule against hearsay.
Monday, March 31, 2014
Ray Rice & Marital Privilege: Why Neither of New Jersey's Spousal Privileges Will Protect the Running Back
According to ESPN, "Baltimore Ravens running back Ray Rice and Janay Palmer were married Friday...." What makes this both sad and interesting is that"[t]he marriage came one day after Rice was indicted by a grand jury on third-degree aggravated assault for allegedly striking Palmer unconscious." ESPN legal analyst Lester Munson is quoted in the article as saying that
"If the wife claims a spousal privilege, it is likely that she would not be forced to testify against him."..."The prosecution would face the prospect of proving the assault without any testimony from the victim. It is possible, but it would be extremely difficult. Unless a prosecutor has a burning desire to become famous in a case involving Rice, the prosecutor may be likely to invest his time in other, more productive activities."
But is that actually the case?
Thursday, March 27, 2014
A couple of years ago, New Hampshire became, as far as I know, the first state that allows jurors to be informed of the right of jury nullification: the power of jurors to render a verdict inconsistent with the evidence (e.g., finding a defendant "not guilty" of possessing a small amount of marijuana despite the evidence proving his guilt beyond a reasonable doubt). Now, it looks like Alaska might follow suit.
Wednesday, March 26, 2014
Anna Walsh at FDA Law Blog highlights an interesting evidentiary ruling at the heart of the Arkansas Supreme Court’s reversal last week of a $1.8 billion Medicaid fraud / false advertising judgment won by Arkansas against various defendants including Johnson & Johnson.
Three points. (The first and third being the most interesting for those just passing through.)
First, this case provides 1.8 billion reasons to ignore those who downplay the significance of evidence rulings! The evidence rules matter: just ask Johnson & Johnson.
Second, the appellate decision (available at the FDA Law Blog) illustrates the application of a somewhat technical modification of the business records rule in some states, like Arkansas.
For decades, the D.C. Circuit's opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), ruled the roost in terms of the admissibility of expert opinion testimony. Pursuant to Frye, a court was only to admit expert opinion testimony if it was based upon a technique, technology, etc. that had "general acceptance" in the relevant expert community.
In 1993, however, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court found that this Frye test no longer applied in cases governed by the Federal Rules of Evidence. In Daubert, the Court created the idea of judicial gatekeeper and held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, federal judges can consider factors such as
whether the "technique can be (and has been) tested," "[w]hether it has been subjected to peer review and publication," the "known or potential rate of error," "whether there are standards controlling the technique's operation," and "whether the...technique enjoys general acceptance within a relevant scientific community."
As I have previously noted, as of 2010, 30 states had "adopted or applied the Daubert standard to determine whether to admit a witness to testify as an expert in a given field." Mark R. Nash, Are We There Yet?: Gatekeepers, Daubert, and an Analysis of State v. White, 61 S.C. L. Rev. 897, 897 n.6 (2010). These states were:
(1) Alaska, (2) Arkansas, (3) Colorado, (4) Connecticut, (5) Delaware, (6) Georgia, (7) Hawai'i, (8) Idaho, (9) Indiana, (10) Iowa, (11) Kentucky, (12), Louisiana, (13) Maine, (14) Massachusetts, (15) Michigan, (16) Mississippi, (17) Montana, (18) Nebraska, (19) New Hampshire, (20) New Mexico, (21) Ohio, (22) Oklahoma, (23) Oregon, (24) Rhode Island, (25) South Dakota, (26) Tennessee, (27) Texas, (28) Vermont, (29) West Virginia, and (30) Wyoming.
South Carolina is not one of these states. So, what test does it apply?
Tuesday, March 25, 2014
The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'
Not necessarily evidence related, but for those interested, I just posted the above-titled forthcoming article about NYC Stop and Frisk on SSRN. It argues, that "whatever [crime-fighting] success [NYC] stop-and-frisk achieves . . . relies to a significant degree on the very factors that render it unconstitutional." This conclusion implicates the efforts of policy makers in New York City who are, as we speak, attempting to "reform" the practice -- as well as police in other cities striving to duplicate the city's crime fighting success.
Here is the abstract:
New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.
Here is the link.
Lord(s) of War?: Southern District of New York Uses Rule 704 to Find No Error in Failing To Call Expert
Federal Rule of Evidence 704(b) provides that
In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
The recent opinion of the United States District Court for the Southern District of New York in Moreno-Godoy v. United States, 2014 WL 1088300 (S.D.N.Y. 2014), raises an interesting question with regard to Rule 704(b): Does the simple fact that some portion of an expert's opinion might run afoul of Rule 704(b) justify an attorney in not calling him as a witness?
Monday, March 24, 2014
According to Federal Rule of Evidence 801(c),
“Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
So, assume that two defendants are charged with conspiracy to kidnap and use of a firearm during and in relation to a crime of violence. Assume that, the day before the crime charged, a contact sent one of the defendants a text message that said, "This bitch is at crystal house cuz her father died today so I have no idea when she is gonna be going home Ahk. we got to try something man[.]" Would this statement constitute hearsay? According to the recent opinion of the Fourth Circuit in United States v. Edelen, 2014 WL 961565 (4th Cir. 2014), the answer is "no."
Friday, March 21, 2014
The Supreme Court in Florida v. Harris directed courts to employ a “flexible, common-sense standard” in evaluating whether a drug dog’s “alert” constitutes probable cause for a search. Harris focused on the training of the dog (Aldo), but a recent Georgia case illustrates that the probable cause question is also complicated by the difficulty of evaluating whether, in fact, a drug dog did “alert.”
In McKinney v. State (Ga.App. 2014), the defendant “argued that the officers did not have probable cause to conduct [a car] search because Simba [the drug dog] did not in fact alert during the search, but instead stopped to relieve himself.”
There seems to be something to this strange claim as the court summarizes the government’s evidence:
“Officer Pullen then walked [the dog] to the passenger's side, where Simba again indicated he was working odor and then attempted to indicate an alert by sitting, but was unable to complete the alert because he had to relieve himself.”
A footnote adds that “Simba was experiencing stomach distress and had relieved himself in the back of the patrol car immediately prior to the search.”
Despite the surprising overlap between a trained drug dog’s “alert” and an uncontrollable bodily urge, the trial court credited the officer’s testimony that this activity constituted an “alert” (or, more precisely, a failed alert) and the appeals court upheld the factual finding. A victory for the prosecution, but certainly not the finest day for the “war on drugs” or Simba the drug dog.
Thursday, March 20, 2014
Wednesday, March 19, 2014
Conspicuous By Absence: Second Circuit Finds Neutral Pronoun Substitution Too Awkward to Satisfy Bruton Doctrine
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the introduction, at a joint jury trial of a nontestifying defendant's statement which facially incriminates another defendant. As I have note on this blog (see, e.g., here), many courts have found that prosecutors can avoid a Bruton doctrine by replacing the defendant's name with a neutral pronoun (e.g., "Dan and I robbed the bank" becomes "Someone and I robbed the bank."). I have long argued, though, that such substitution shouldn't be allowed when the replacement is clear/awkward (see, e.g., here). And that's exactly what the Second Circuit found in United States v. Taylor, 2014 WL 814861 (2nd Cir. 2014).
Monday, March 17, 2014
Victims' Rights: Tennessee Bill Would Allow Prosecutors to Introduce Pictures of Unavailable Violent Crime Victims
The proposed piece of legislation would amend current state law and allow during a trial pictures of a violent crime victim if the victim is unable to testify or be present.
In connection with the bill, Knox County Assistant District Attorney John Gill, Jr. issued the following statement:
"Tennessee DAS are strongly in support of the legislation allowing photos from life of a homicide victim to be admitted in evidence in a trial. Under the current law, the defendant is present before the jury, while the victim is an abstract figure, totally outside the sight of the jury. This law would allow a jury to more fully appreciate that the victim was once a real and alive."
Conversely, Knoxville Criminal Defense Attorney Greg Isaacs said in a statement,
"Victims have a right to be heard, however there's a danger that a picture will be used for the purpose of creating sympathy as opposed to the purpose of the rules of evidence and rues of criminal procedure."
The complete text of the bill is below the jump.
Friday, March 14, 2014
Federal Rule of Evidence 412 states in relevant part:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence....
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or representative.
Meanwhile, Federal Rule of Evidence 413(a) provides that
In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
In United States v. Thunder, 2014 WL 944752 (8th Cir. 2014), the defendant was charged with sexual abuse of a minor and sexual abuse of a person incapable of consenting. At trial, the defendant sought to introduce the prior sexual abuse conviction of an alleged alternate suspect, but the district court deemed the evidence inadmissible under Rule 412(c)(1). This prompts two questions: (1) Why did the Eighth Circuit mention Rule 412; and (2) Is there such a thing as reverse Rule 413/414 evidence?
Wednesday, March 12, 2014
Bigger & Better?: Supreme Court of North Dakota Opinion Deals With Both Personal/Family History Hearsay Exceptions
(4) Statement of Personal or Family History. A statement about:
(A) the declarant's own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or
(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person's family that the declarant's information is likely to be accurate.
(19) Reputation Concerning Personal or Family History. A reputation among a person's family by blood, adoption, or marriage, or among a person's associates or in the community, concerning the person's birth, adoption, legitimacy, ancestry, marriage, divorce, death, relationship by blood, adoption, or marriage, or similar facts of personal or family history.
As the language of these exceptions makes clear, they cover very similar territory. As the recent opinion of the Supreme Court of North Dakota in State v. Vandermeer, 2014 WL 929481 (N.D. 2014), mkaes clear, however, there is at least one key difference between the two.
Tuesday, March 11, 2014
Court's Witness: Court of Appeals of Ohio Finds No Error With Court Calling Witness for Prosecution to Impeach
Ohio Rule of Evidence 607(A) provides that
The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage. This exception does not apply to statements admitted pursuant to Evid.R. 801(D)(1)(A), 801(D)(2), or 803.
That said, a party cannot call a witness as mere subterfuge for getting inadmissible evidence before the jury. So, for instance, the prosecution could not call an eyewitness, knowing that the eyewitness would give exculpatory testimony, for the sole purpose of getting the eyewitness's prior inconsistent (incriminatory) statements before the jury.
Meanwhile, Ohio Rule of Evidence 614(A) provides that
The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
So, could the prosecution in the above example ask the court to call the eyewitness, which would mean that the prosecution could impeach the eyewitness without having to contend with Rule 607(A) limitation? According to the recent opinion of the Court of Appeals of Ohio, Second District, in State v. Slaughter, 2014 WL 895425 (Ohio App. 2 Dist. 2014), the answer is "yes."
Monday, March 10, 2014
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:
(1) A party who is a natural person;
(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or
(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.
As its language makes clear, Rule 615 only allows for the sequestration of witnesses. So, what happens if a judge orders witnesses sequestered, a non-witness affiliated with a party remains in the courtroom, and that non-witness then informs prospective witnesses about prior testimony? That was the dilemma addressed by the Court of Appeals of Kentucky in its recent opinion in Sturgill v. Sturgill, 2014 WL 891277 (Ky.App. 2014).
Friday, March 7, 2014
In most cases, the Federal Rules of Evidence cover the exact same ground in criminal trials and civil trials. The Rules also usually treat civil plaintiffs no differently than civil defendants and prosecutors no differently than criminal defendants. There are, however, some notable differences, one of which I realized when teaching Federal Rule of Evidence 612 to my students yesterday.