EvidenceProf Blog

The Curse of Michael Myers: California Supreme Court Rejects "Halloween II" Defense in Double Homicide Case

In December, 1982, Richard Delmer Boyer murdered a couple in California, stabbing the husband 24 times and the wife 19 times.  Two months earlier, "Halloween II," the sequel to John Carpenter's groundbreaking "Halloween" was released in theaters.

Boyer was convicted on two charges of first degree murder in 1984, but he had the convictions reversed on appeal becuase his confession was obtained in violation of his Constitutional rights.  This paved the way for his retrial in 1992, where Boyer made some interesting claims. See People v. Boyer, 133 P.3d 581 (Cal. 2006).  According to Boyer, he consumed whiskey, speed, marijuana, and cocaine on the day of the murders, and when he was at the victims' house, "[h]e felt he was part of Halloween II....Events kept changing speeds, and items inside the house became distorted." Id. at 591.

A doctor who examined Boyer also testified that Boyer told him in 1990 that "he was 'tripping' at the [victims'] residence, felt like he was in the movie Halloween II, and 'actually hallucinated a man coming at him with a knife.'" Id. at 615.  On cross-examination, however, the doctor admitted that when he interviewed Boyer in 1982 and 1983, Boyer "did not mention this hallucination." Id. 

Boyer's main defense at trial was that he should have been found guilty only of voluntary mansalughter because he was "unconscious" as a result of voluntary intoxication, a valid defense under California law.  The trial judge instructed the jury on this defense, but failed to instruct the jury on the legal definition of "unconsciousness," which extends to those "who are not conscious of acting but who perform acts while asleep or while suffering from a delirium of fever...." Id. at 623.  (Defense counsel did not ask for such an instruction).

Last year, the California Supreme Court affirmed his convictions, and I think that it acted correctly in doing so.  Boyer raised a lot of issues on appeal, but I'll only address two.  First, the Boyer claimed that because his confession violated his rights, his statements to doctors in the early '80s (where he didn't mention the hallucinations) were inadmissible as the "fruit of the poisonous tree."  The court found that this doctrine did not apply because this evidence did not come from subsequent police investigation, but instead was evidence voluntarily compiled by the defendant himself such that its exclusion would have "a negligible deterrent effect on police misconduct." Id. at 618

Second, Boyer claimed that the court erred in failing to instruct the jury on the legal definition of "unconsciousness"  The court, however, found that "[n]o rational jury, having heard the trial evidence and an instruction permitting it to find that defendant killed while unconscious, would require further instructions to realize that it could accept defendant's hallucination claim as one of unconsciousness."

-CM

EvidenceProf Blog's 1st Annual Halloween Movie Pick: Sam Raimi's "The Gift"

In 1981, director Sam Raimi introduced the world to his unique brand of horror (and sidekick Bruce Campbell), with "The Evil Dead," the first film in a triology which also includes the wackier "Evil Dead 2" and the whacked "Army of Darkness."  Raimi's best known these days for another trilogy, the Spider-Man trilogy, consisting of the enjoyable "Spider-Man," the magnificent "Spider-Man 2," and the execrable "Spider-Man 3."

Before being tapped for the Spidey gig, however, Raimi found himself at a career-low, following up the Kevin Costner baseball flop "For Love of the Game" with the southern-fried, Gothic horror flick, "The Gift."  "The Gift" is by no means a great movie, but it's not without its charms, including some of the most hilarious courtroom scenes ever committed to film.

Cate Blanchett plays Annie Wilson, the local fortune-teller in the small town of Brixton, Georgia.  Wilson's husband died a year ago in a cable plant explosion, and supposedly her character was modeled after the mother of Billy Bob Thornton, who also co-wrote the screenplay.  When the wife (Katie Holmes) of the local school principal (Greg Kinnear) goes missing, Annie has a vision that she was killed and dumped into a pond.  Police then find the body in the pond belonging to Donnie (the unconvincing Keanu Reeves), a man whose battered wife (Hillary Swank) sought counsel with Annie.

This leads to murder charges being brought against Donnie and the hilarity that ensues when Annie is being challenged on her psychic abilities.  Some essential moments include Donnie's attorney (the oily Michael Jeter) asking Annie how many fingers he's holding up behing his back and why, if Annie is a psychic, she couldn't predict and prevent her husband's death. 

All in all, "The Gift" is a creative misfire and less creepy than Raimi's masterpiece, "A Simple Plan," but the interesting assortment of actors make the pic worth a look-see for the vast majority of people who missed it in theaters.

-CM

Vermont Supreme Court Reverses Prior Consistent Statement Ruling in Halloween Case

In State v. Lemay, 908 A.2d 430 (Vt. 2006), the Vermont Supreme Court was presented with the appeal of Joseph Roger Lemay, who was convicted of lewd and lascivious conduct with a child and sexual assault.  The event leading to these convictions occurred on October 21, 2003.  The defendant was living with the alleged victim's (A.K.) mother and older brother, and on the night of the 21st, he began wrestling with the alleged victim and her friend, B.S.  The two girls later told friends and neighbors that during this wrestling, the defendant grabbed their breasts, and A.K. claimed that the defendant inserted his finger into her vagina.

Before trial, defense counsel revealed that it planned to claim that A.K. fabricated her allegations because the defendant and her mother told her that she could not go to New Hampshire to celebrate Halloween.  At a pretrial conference, the prosecution indicated that it planned to call the girls' friends and family to testify about the allegations made by the two girls.  They claimed that these allegations were admissible under Vermont Rule of Evidence 801(d)(1)(B), which indicates that a statement is not hearsay if the declarant testifies at trial, is subject to cross-examination, and the statement is consistent with her testimony and is offered to rebut an express or implied charge against her of fabrication or improper influence or motive.

The prosecutor thus claimed that this testimony was admissible at trial because A.K. planned to provide consistent testimony at trial.  Defense counsel, though, questioned the timing of A.K.'s statements and whether they were made before the defendant and her mother told her she could not go to New Hampshire for Halloween.  The trial court judge, apparently having not read or understood Rule 801(d)(1)(B), responded, ""I'm not sure the timing here is critical under the rule" and found the proposed testimony admissible  The judge, however, allowed defense counsel to renew his objection to the testimony at trial by simply stating the word "hearsay," but again found the testimony to be admissible when defense counsel merely objected, "Hearsay" before the testimony was given.

The case eventually reached the Vermont Supreme Court, which reversed the conviction, finding that (1) under Rule 801(d)(1)(B), the testimony was inadmissible because A.K.'s statements came after she was told she couldn't go to New Hampshire for Halloween, (2) the alleged victim's statements did not constitute excited utterances, and (3) the defendant preserved his objection on appeal.  The first ruling was the easiest to make.

In a case involving somewhat similar facts, Tome v. United States, 513 U.S. 150 (1995), the United States Supreme Court noted that (identical) Federal Rule of Evidence 801(d)(1)(B) only applies if the alleged consistent statement was made before the source of the bias, interest, influence, or incapacity originated.  Thus, if A.K. made her statements before she was told she couldn't go to New Hampshire for Halloween, they would be admissible to rebut defense counsel's claim that she only made up her allegations in response to the Halloween edict.  However, allegations that she made after that edict in no way rebut defense counsel's claim because clearly they could have been made in response to that edict.

-CM

Paradise Found?: Defense Counsel Presents Newly Discovered Evidence in West Memphis 3 Case

In 1994, three Arkansas teenagers, now known as the West Memphis 3, were convicted of murdering three 8 year-old boys, allegedly as part of a satanic sacrifice involing binding the children with shoelaces, sexual abuse, and genital mutilation.  They were convicted despite the complete absence of any physical evidence linking them to the murders

Instead, the centerpiece of the prosecution's case was the videotaped confession of Jessie Misskelley, one of the West Memphis 3.  Misskelley, however, is mildly retarded, only gave his confession after hours of questioning (and prodding), and was incorrect on several significant details, including the time of the crime, the way the victims were tied, and the manner of death. 

If this case sounds familiar, it is probably because it was detailed in the award-winning HBO documentaries "Paradise Lost" and "Paradise Lost 2."  Many people watching the documentaries (including Pearl Jam's Eddie Vedder) doubted the guilt of the West Memphis 3 after watching the docs, with most speculating that the murders might have been committed by the stepfather of Christopher Byers, the most mutilated of three victims.  This was because the stepfather had a criminal past, gave the filmmakers a bloody knife, and gave messianic speeches on camera.

Now, in the wake of those documentaries and rigorous investigations, defense counsel for Misskelley and the other two defendants, Jason Baldwin and Damien W. Echols, has presented some fascinating evidence to a federal court.  The highlights include:

     -evidence from forensic experts, including the former medical examiner for New York City, that the mutilation of the victims, including one act of castration, was caused by animals, not humans;

     -a forensic report indicating that a hair found in one of the knots binding the victims belonged neither to a member of the West Memphis 3, nor to Byers' stepfather, but instead (likely) to the stepfather of one of the other victims; and

     -evidence that jurors (a) heard about Misskelley's confession before trial, (b) lied about hearing the confession during jury selection, and (c) relied upon the confession in convicting Baldwin and Echols even though the confession was inadmissible against them.

It will certainly be interesting to learn more about the evidence that has been presented and whether it will lead to the West Memphis 3 being freed.  I will say that based upon the brief descriptions of the evidence that have been given, at least Baldwin and Echols have a good case.  Under Arkansas Rule of Evidence 606(b), jurors can testify about "extraneous prejudicial information" being brought to the jury's attention.  Then, if the court determines that the defandant was unduly prejudiced by the evidence, his conviction must be reversed. 

Certainly, Misskelley's confession was extraneous prejudicial information received by the jury, and in the absence of any physical evidence against the other two defendants, it seems clear that they were convicted as a result of this improperly received information.

-CM

Just Cause?: Fourth Circuit Court of Appeals Has Odd Definition of "Good Cause" Under 404(b)

In United States v. Green, 2007 WL 3052847 (4th Cir. 2007), the United States Court of Appeals for the Fourth Circuit affirmed Monte Alexander Green's convictions stemming from his attempted robbery of a pawn shop in 2003.  Green had challenged his convictions by alleging, inter alia, that the prosecutor failed to give him proper notice that he intended to introduce evidence pursuant to Federal Rule of Evidence 404(b) indicating that Green previously robbed another pawn shop in 2003.

Federal Rule of Evidence 404(b) states that evidence of another crime is admissible for purposes of proving, inter alia, intent on the part of the defendant, and Green did not dispute on appeal that the evidence of the prior pawn shop robbery was admissible to prove intent.  Rule 404(b), however, also requires that when the prosecution in a criminal case seeks to introduce 404(b) evidence against an accused, it must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

Green appealed his conviction because the prosecutor gave him notice of his intent to introduce evidence of the prior pawn shop robbery only four days before trial.  The Fourth Circuit rejected his argument, although its reasoning is somewhat unclear.  In a footnote, it mentioned that the prosecution only learned about the earlier bank robbery approximately one week before trial.  The court then noted in the body of its opinion that the failure to provide pretrial notice can be excused when good cause is shown, but it failed to indicate whether the prosecution showed good cause in the Green case.

The Fourth Circuit then stated that defense counsel rejected the District Court's offer to delay the trial for an extra day so that he could prepare a response to the 404(b) evidence.  Then, without further explanation, the court concluded, "Under these circumstances, the district court did not abuse its discretion in admitting the evidence."

This led me to evaluate past Fourth Circuit Rule 404(b) notice cases, and I found an interesting and troubling result when researching the Fourth Circuit's definition of "good cause."  In its unpublished opinion in United States v. Fitzgerald, 74 F.3d 1234 (4th Cir. 1996), the Fourth Circuit noted that the prosecutor allegedly failed to comply with a district court order requiring five days notice before presenting 404(b) evidence at trial.  The prosecutor then presented evidence or prior robberies to prove common plan or scheme by the defendant under Rule 404(b). 

The court found that despite this alleged failure to provide adequate notice, "based upon the probative nature of the robbery incidents, the district court had good cause to excuse any pre-trial notice requirement for the use of 404(b) evidence."  This decision makes no sense to me.  The way I see it, a prosecutor proves "good cause" for failing to provide notice under Rule 404(b) when there is a reasonable explanation for why notice was not given. 

An illustrative case is United States v. Allen, 182 Fed.Appx. 903, 914 (11th Cir. 2006), where the court found that the failure to provide notice of Rule 404(b) evidence was excused based upon "good cause" because the prosecutor "just learned" about the 404(b) evidence before trial.  Similarly, if the Fourth Circuit in Green based its decision on "good cause," the good cause would have been the similar fact mentioned in the footnote that the prosecution only learned of the 404(b) evidence approximately a week before trial.

In United States v. Fitzgerald, however, the Fourth Circuit seemed to find "good cause" based upon the fact that the 404(b) evidence at issue was expecially probative.  In my mind, however, this would provide the opposite of good cause.  If a prosecutor has 404(b) evidence that has weak probative value, perhaps the prosecutor would have good cause for not notifying the defendant of the evidence because the prosecutor might not decide to use it until trial starts.  But if the prosecutor has reason to know that 404(b) evidence is highly probative and will definitely be used at trial, this would seem to make the prosecutor's failure to provide notice less justifiable.

-CM 

UMKC Seeks Nominations for the Douglas Stripp Distinguished Professor of Law in Advocacy

Professor David Achtenberg of the UMKC School of Law sent me the following message:

I'm chairing a search committee for an endowed professorship (the Douglas Stripp Distinguished Professor of Law in Advocacy) which is broadly enough defined to be filled by an evidence professor. (One of the previous holders was Andre Moennsens.)

FACULTY POSITION SCHOOL OF LAW UNIVERSITY OF MISSOURI-KANSAS CITY The University of Missouri-Kansas City School of Law is seeking nominations and applications for the Douglas Stripp Distinguished Professorship of Law in Advocacy.

We seek diverse candidates with a strong commitment to excellence in teaching, scholarship and professional service. The ideal candidate for the Stripp Professorship will have a distinguished reputation in the field of litigation and demonstrated excellence as an instructor and scholar. Hiring decisions will be consistent with UMKC’s strategic plan to create prestigious faculty positions and recruit nationally recognized teachers and scholars to UMKC’s faculty. Salary, benefits, and research support will be competitive with similar positions in legal education.

The Stripp Professor will play an important role in achieving the school’s mission of educating students to become outstanding lawyers who will serve their communities and producing significant scholarship that benefits the academy, bench and bar. That role is a particularly crucial one because of the law school’s commitment to litigation as one of the school’s four emphasis areas.

UMKC is one of two law schools in the University of Missouri System and is located on a beautiful landscaped campus in the the Country Club Plaza area of Kansas City, Missouri. It is the only law school in a diverse and vibrant metropolitan area of almost two million people. The school’s 35 full-time faculty members offer courses leading to J.D. or LL.M. degrees for approximately 500 students. It benefits from its metropolitan location, a large and academically talented pool of student applicants, a strong university with opportunities for interdisciplinary collaboration, a dedicated faculty and staff, and strong community and alumni support. The law school is housed in a modern, technologically sophisticated building that includes a unique, state of the art teaching courtroom. UMKC School of Law is proud to be an urban law school with a strong liberal arts feel.

The position will be open until filled, but review of applications will begin in November. Nominations and applications should be sent to: Professor David Jacks Achtenberg, Chair Douglas Stripp Distinguished Professor Search Committee University of Missouri - Kansas City School of Law Kansas City, MO 64110-2499 Phone: (816) 235-2382; Fax: (816) 235-5276 [email protected] The University of Missouri-Kansas City recognizes that a diverse faculty, staff and student body enriches the educational experiences of the entire campus and greater community. To this end, UMKC is committed to recruiting and retaining faculty, students and staff who will further enrich our campus diversity and making every attempt to support their academic, professional and personal success. Applicants who are not U.S. citizens must state their current visa and residency status. UMKC is an Affirmative Action/Equal Opportunity employer. Women, minorities, veterans, and individuals with disabilities are encouraged to apply.

-CM

Brian McDaniel Loses Murder Appeal Despite Hearsay Argument

In 2006, Brian Lamel McDaniel was found guilty of murder in the first degree and sentenced to life imprisonment based upon his alleged role in the murder of his ex-girlfriend, Kandace "Sissy" DeCarlo.  Allegedly, McDaniel arranged for Donald Overton, a member of the Bloods, to kill DeCarlo because she was now dating Thomas "Mad Dog" Smith, a Red Mob enforcer, and selling crack cocaine for Smith instead of for McDaniel.

At trial, in addition to presenting evidence that McDaniel arranged for Overton to kill DeCarlo, the prosecutor introduced evidence to prove that Overton in fact killed DeCarlo.  This evidence consisted of the testimony of former Red Mob member Israel Ward, who testified that Overton overheard a conversation about DeCarlo's murder and responded, "I shot her until she was dead."

McDaniel appealed his sentence, with his attorney claiming that the trial court improperly allowed this testimony because it was hearsay and because because Overton did not testify at trial.  Last Thursday, however, he lost his appeal.

Looking the Oklahoma Evidence Code and recent Confrontation Clause jurisprudence, the court's decision makes sense, as long as Overton was unavailable to testify at trial.  Section 2804(B)(3) of Oklahoma's Evidence Code is similar to Federal Rule of Evidence 804(b)(3) in that, when the declarant is unavailable to testify, it allows for the admission of "[a] statement which was at the time of its making contrary to the declarant's pecuniary or proprietary interest, or which tended to subject him to civil or criminal liability...and which a reasonable man in his position would not have made unless he believed it to be true."  Thus, assuming that Overton was unavailable, his statement was properly admitted because it tended to subject him to criminal liability for murder and because a reasonable man would not make statements subjecting himself to such criminal liability.

Next, we must look at the Confrontation Clause.  In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant did 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..  Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.

Here, it appears unlikely that Overton thought that his statement in response to the conversation about the murder would have been used in a criminal prosecution, so his statement was not "testimonial."  Thus, McDaniel's rights under the Confrontation Clause were not violated by the admission of Overton's statement.

I'll finally note that while the denial of McDaniel's appeal was proper assuming that Overton was unavailable, the denial was improper assuming that Overton was available to testify.  As they are under the Federal Rules of Evidence, the admissions of co-conspirators are considered non-hearsay under Section 2801(4)(a)(5) of the Oklahoma Evidence Code.  A co-conspirator's admission, however, is defined as a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.  Overton's statement after the alleged murder of DeCarlo would almost certainly not have been made during the course and in furtherance of any conspiracy to murder her, so his statement would have been inadmissible if he were available to testify at trial.

-CM

Calvin Harris, Take 2: Judge Finds Statements Covered By Spousal Communications Privilege

Last week, I wrote about Calvin Harris' attempt to have his murder conviction overturned based upon witness Kevin Tubbs coming forward and claiming that he saw the alleged victim with another man well after the police allege that Harris killed her and disposed of her body.  I noted that even though Tubbs' description of the man he saw with the victim matched the description of another suspect, Stacy W. Stewart, the police's failure to disclose the fact that they conducted a polygraph test on Stewart was unlikely to form the basis for a new trial because Pennsylvania courts have found that the failure to disclose inadmissible evidence to a defendant can never form the basis for a Brady violation.

I also noted that Tubbs' testimony was troublesome because his wife told police that Tubbs expected to be paid in exchange for his testimony.  Specifically, she told police investigators that her husband told her that he "would never have to work another day in his life" because he "will have a brown paper sack on the front seat of his truck that will be filled with money."

Harris caught a break when Tubbs' wife later claimed that the police "twisted" her statement to them.  He then caught another break when the judge hearing his appeal found that the wife's statement was inadmissible because it was covered by Pennsylvania's spousal communications privilege.

Pennsylvania's spousal communications privilege states in relevant part that in a criminal proceeding, neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other...."  Because Tubbs' statements were made to his wife when nobody else was around, they were "confidential" and thus inadmissible.

Of course, none of this changes the Brady analysis, but if the judge finds Tubbs' testimony and other evidence presented by Harris to be sufficiently compelling, it is possible, but unlikely, that Harris will be given a new trial.

Twelve Worried Men?: Supreme Court of Wyoming Denies Defendant's Appeal Despite Jury Note

Emilio Teniente was convicted by a Wyoming court of first degree murder and conspiring to commit murder in connection with the death of Joseph Lopez.  Teniente eventually appealed to the Supreme Court of Wyoming on several grounds, including the ground that the trial court failed to inquire properly into a note it received from the jury.

The note said,

Dear Judge Grant:

     During our deliberation some concerns have arose about the safety and any retaliation of either family, towards any of us or our families.  Some of us have been approached by some of the family members.  Please advise us of our course of action.  Thank you.

Respectfully yours,

The Jury.

The note referred to a specific instance when a female juror was approached by Teniente's girlfriend in a public restroom.  Apparently, the girlfriend introduced herself and said that she just had Teniente's baby and that "things were really hard."  The female juror did not respond and immediately walked away.  After learning about the incident, the judge talked with the juror and allowed her to continue serving after she said that she felt comfortable continuing, although she said that the contact did make her "a bit nervous."

Wyoming Rule of Evidence 606(b) is similar to its federal counterpart in that it generally precludes jurors from testifying as to jury deliberations, but it does allow jurors to testify about, inter alia, whether any outside influence was improperly brought to bear upon any juror. 

Jurors testifying pursuant to Rule 606(b), however, cannot discuss the subjective effect of the outside influence on the juror's decision-making.  Instead, in determining whether to remove a juror or reverse a conviction, the court, by looking at the entire record, considers objectively whether the defendant was or would be unduly prejudiced as a result of the outside influence.  Here, the Supreme Court of Wyoming found that the trial court acted properly in allowing the female juror to continue to serve and thus affirmed Teniente's conviction.

Unless the Supreme Court's decision leaves out some essential facts, I am utterly dissatisfied with the trial court's actions.  According to the jurors' note, "[s]ome of us have been approached by some of the family members," leading to concerns "about the safety and any retaliation of either family, towards any of us or our families."

From this note, it seems to me that (1) more than one juror was approached (2) by more than one person, and that (3) at least one of the approachers was a family member of the victim, Joseph Lopez.  Furthermore, when comparing the note's language about "safety" and "retaliation" with the words spoken by Teniente's girfriend -- which only made the female juror "a bit nervous" -- it sems to me that there were more threatening comments made to other jurors which were not mentioned specifically in the note.

Now, maybe when the female juror spoke with the judge, she made clear that she was the only one approached and that she was only approached by the girlfriend the one time described in the note, but the Supreme Court of Wyoming mentions no such explanation by the female juror.  In the absence of such an explanation, it appears to me that the judge should have conducted a much more rigorous search into the allegations raised by the note.

-CM

Crimson Hide?: Alabama Judge Finds Ray Keller's Character Is Not An Essential Element Of His Defamation Lawsuit Against The NCAA

The defamation trial between Ray Keller and the NCAA began this week in a courtroom in Jackson County, Alabama, but pursuant to the judge's odd order, jurors will not be able to hear evidence about Keller's background or reputation.  Keller is an Alabama businessman and a former booster for the University of Alabama.  In 2002, after an investigation into Alabama's football program, the NCAA Committee on Infractions issued a public report about a football recruiting scandal involving Alabama and Keller.

Alabama's football program was placed on probation, and Keller filed a lawsuit against the NCAA, claiming that the report constituted defamation of his character.  Before trial, the NCAA sought to introduce evidence about Keller's background or reputation prior to when the NCAA report was issued.  The judge decided that such evidence would not be admissible.

Without knowing the exact evidence that the NCAA sought to introduce, it is difficult to argue with the judge's ruling that Keller's prior "bad acts" were inadmissible because they were "too remote to be probative."  What troubles me, though, is the judge's finding that the evidence was inadmissible because Keller's case was not a case "where the Plaintiff's character is an essential element of a claim or defense."

This language comes from Alabama Rule of Evidence 405(b), which is similar to Federal Rule of Evidence 405(b) in that it states that "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct."  The judge thus apparently found that Keller's character was not an essential element of his defamation claim or the NCAA's defense of that claim.

This ruling is bizarre because it is well established in courts across the country "that the character of a plaintiff in a defamation case is at issue," fulfilling the essential element portion of Rule 405(b). World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1138 (10th Cir. 2006).  The Supreme Court of Alabama is one of these courts following this general trend. See Ex parteHealthSouth Corp., 712 So.2d 1086, 1088-89 (Ala. 1997) (allowing discovery of the defendant's alleged prior bad acts pursuant to Alabama Rule of Evidence 405(b)).  Furthermore, these holdings make perfect sense because truth is a complete defense in a suit for defamation. 

Thus, unless there are factors at play of which I am unaware, the evidence proffered by the NCAA clearly met the "essential element" requirement of Rule 405(b), and the judge's decision conflicted with well-established precedent.

-CM

Article of Interest: Professor Mnookin Addresses the Interplay Between Crawford and Expert Evidence

Jennifer Mnookin, a Vice Dean and Professor of Law at the UCLA School of Law, has written a fascinating forthcoming article, "Expert Evidence and the Confrontation Clause After Crawford v. Washington," for a symposium dedicated to Crawford.  This article is a must-read for professors as well as lawyers and judges as courts continue to grapple with how to apply this landmark decision.

In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant did 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.  Essentially, hearsay is "testimonial" when the declarant made the hearsay statement with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution.

Courts have had enough difficulty applying Crawford when the hearsay at issue is the statement of a lay witness.  According to Professor Mnookin, they've struggled to an even greater degree with expert evidence, which, when done in connection with a criminal case, is normally made with the expectation that it will be used at trial.  As Professor Mnookin notes, this has led and will lead to many problems under Crawford because (1) expert evidence is sometimes introduced through a certificate of analysis or its equivalent rather than live tstimony, and (2) experts sometimes want to testify about "testimonial" hearsay in the form of the information upon which they relied in foriming their conclusions.

Professor Mnookin then goes on to note how many courts have engaged in strained logic to try to allow such statements into evidence despite Crawford by arguing, for instance, (1) that the statements are not offered to prove the truth of the matter they assert and (2) that business records are per se non-testimonial.  I think that she does a top notch job of shooting down these arguments and then presents several interesting about how to reconcile expert evidence and Crawford.  I can't recommend the article more highly.  I wrote Professor Mnookin about what led her to write the article, and she responded as follows: 

"I became interested in the intersection between Crawford and Daubert in the course of researching a supplement to a chapter of a treatise for which I’m a co-author (The New Wigmore: Expert Evidence, with David Kaye & David Bernstein).  I’m quite sure that when the Supreme Court decided in Crawford to rethink Confrontation Clause jurisprudence and come up with the rough contours of the category of the ‘testimonial,’ they didn’t have issues relating to expert evidence in mind.  And yet, every bit as much as, say, interrogations by the police,  forensic science evidence is generally produced with the strong and explicit expectation is that it will be used both for law enforcement purposes and, more specifically, as evidence introduced at trial if there is one.  So it seemed to me that it would be hard to come up with a principled way to deem forensic science reports anything other than testimonial.   As I began to look closely at the many cases wrestling with these questions, I was dismayed – not surprised, to be honest, but dismayed nonetheless – to see how many lower courts, mostly state but federal too, were doing anything, anything at all to try to avoid the conclusion that these kinds of evidence were testimonial.  So I thought it would be worthwhile to take a close look at the variety of arguments these courts were making, to see if any of them actually came up with principled ways to avoid the conclusion that forensic science reports or certificates of analysis were testimonial.  This piece was an interesting exercise for me – a lot of my scholarship is historical and genealogical, and this Article, by contrast, wrestles much more explicitly with an ongoing doctrinal problem and is aimed much more squarely at judges (not that they’ll necessarily pay attention – but I can hope, right?).

There’s enough variation in how the lower courts are handling these issues, and they have enough practical importance, that it would be terrific to see guidance emerge from the Supreme Court eventually - - though until now, they haven’t granted any of the several cert petitions in the area.  When and if they do, it will be pretty interesting to see whether the Court is willing to follow through with the logical consequences of the category they invigorated, or if they don’t, whether they end up part of the way back to the sort of reliability-based framework that they were trying to leave behind. Of course, there’s a background question lurking in this area: to what extent can knowledge produced through scientific processes be understood differently from other kinds of evidence?  Many courts want to put weight on this kind of distinction, suggesting that forensic science is different, because it’s more objective, or fact-based, or routinized, or whatnot, than other non-scientific kinds of proof that might be introduced without a testifying witness.  My bottom line is that (1) these criteria all go to reliability, which Crawford supposedly took off the table as grounds for dispensing with the Confrontation right; and (2) even were we to allow ‘reliability’ back in as a legitimate criterion to some extent, we need to tread pretty carefully here, and we certainly shouldn’t just assume that forensic science is per se so reliable that Confrontation would obviously be superfluous or unhelpful."

-CM

Dead Man's Chest: New York Court of Appeals Will Hear Dead Man's Statute Appeal

Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate.  The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.

Or, an attorney charged with taking money from his now deceased client could not testify that his client told him he could take the money as payment for his previous pro bono representation.  This is the exact situation the New York Supreme Court, Appellate Division, First Judicial Department (one of New York's four intermediate appellate courts) faced when deciding whether to sanction Manhattan attorney Richard A. Zalk. (The New York Dead Man's Statute can be found at NY CPLR 4519).

Zalk represented Arthur and Ruth Gellman starting in 1970.  Arthur died in 1990, and, according to Zalk, he continued to represent Ruth over the next 10 years, without billing her, in connection with her ownership of an apartment.  In 2000, Ruth sold the apartment for $2 million, $200,000 of which was paid into Zalk's escrow account as a down payment.

After closing, Ruth died, and Zalk kept $172,151 in the escrow account for himself.  He claimed that Ruth told him to keep this amount in the account as payment for his 10 years of unpaid legal services.  The court found that pursuant to the New York Dead Man's Statute, Zalk could not testify to this alleged promise in the guilt phase of his disciplinary hearing, and it suspended Zalk from the practice of law for two years. See In re Zalk, 842 N.Y.S.2d 377 (N.Y.A.D. 1 Dept. 2007) (The court found that Zalk's testimony was "against" Ruth's estate even though her daughters were not parties to the hearing because (1) it went against their competing claim to the money, and (2) the court could have ordered that Zalk make monetary restitution to Ruth's daughters).  The court did, however, find that Zalk could testify to this alleged promise in the phase of his hearing determining the nature of the discipline to be imposed on him. See id. at 383.

The New York Court of Appeals (the equivalent of most state's supreme courts) has now agreed to hear Zalk's appeal.  I don't see how the New York Court of Appeals could change the evidentiary ruling.

Zalk was clearly an interested party as he stood to acquire $172,151 if Ruth's alleged promise was true.  Furthermore, Ruth was clearly deceased at the time that Zalk wanted to testify.  The reasoning behind the statute, protecting the deceased's estate from "plundering," was clearly at play in the case.  And the court's argument about why Zalk's testimony went "against" Ruth's estate seems pretty persuasive. Therefore, under New York's Statute, Zalk was precluded from testifying.

The more interesting question for me is whether New York will follow the lead of most states and abolish its Dead Man's Statute. See Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007) (noting how most states have repealed their Dead Man's Statutes).  The most recent example I have found involved Florida repealing it's Dead Man's Statute in the wake of the infamous Terri Schiavo case.  Of course, it would be the New York legislature, and not the New York Court of Appeals, that would potentially make such a change.

-CM

Unsettling Decision: District Court Misapplies Rule 408 in Indeminifcation Decision

The District Court for the Western District of Kentucky recently made an inexplicable decision in Westlake Vinyls, Inc. v. Goodrich Corp., 2007 WL 3046519 (W.D. Ky. 2007).  In Goodrich, Westlake Vinyls, Inc. sold property to Goodrich Corporation and agreed to indemnify Goodrich for any liability resulting from "remediation of any soil, surface water and/or groundwater resulting from or otherwise attributable to events occurring after the closing date...." Id. at *1.

When such liability arose, Goodrich sought to recover under this agreement, but Westlake claimed that any recovery Goodrich could receive should be reduced by the amount Goodrich recovered from its excess insurers.  Westlake's argument is correct because Goodlake is not entitled to "double recovery."

The problem, however, is that Goodrich and some of its excess insurers could not agree on the amount of insurance proceeds Goodrich should recover, which led to settlement negotiations and eventual settlements.  Thus, when Westlake tried to introduce evidence of these settlement negotiations and agreements to prove its "double recovery" claim, Goodrich objected that this evidence was inadmissible under Federal Rule of Evidence 408.

Federal Rule of Evidence 408 states that evidence of compromises, offers to compromise, and related statements are inadmissible when "offered to prove liability for, invalidity of, or amount of a claim that was disupted as to liability or amount...."  The District Court somehow found the evidence at issue admissible despite this rule. 

In its holding, the court stated, "Here, evidence that Goodrich recovered some of its insurance proceeds as a result of a settlement would not be introduced to prove that those insurers were liable to Goodrich or that Goodrich had a valid claim for the insurance proceeds.  Instead, evidence of the settlements would be introduced merely to show the amount of insurance proceeds Goodrich has recovered, thus limiting any liability Westlake may owe to Goodrich..." Id. at *2 (emphasis added).

It almost seems as if the court read a redacted version of Rule 408 before reaching its decision.  The court correctly noted that this was not a case where evidence of settlement negotiations was offered to prove liability for or invalidity of a claim that was disputed as to liability or amount.  However, as the court itself noted, Westlake was using evidence of settlement of negotiations to prove the amount of a claim that was disputed as to liability or amount.  Clearly, then, the evidence was covered by and should have been held inadmissible under Rule 408.  This is not to say that Westlake was precluded from proving its "double recovery" claim; it simply could not rely on evidence of settlement negotiations to prove its claim.

Although it did not argue that this case was different than the typical case because a party (Westlake) was using evidence of settlement negotiations between the opposing party (Goodrich) and a third party (its excess insurers), perhaps the court relied upon these facts.  As I noted in a blog post yesterday, however, there is no reason to treat these third party situations differently than the regular situations where both parties in a case were parties to the settlement negotiations.

(It's also noted that Federal Rule of Evidence 411, which excludes evidence of liability insurance, was not applicable here because Westlake was not using evidence of Goodrich's liability insurance to prove negilgence or otherwise wrongful conduct.).

-CM

Compromising Position: Ninth Circuit Finds Rule 408 Inapplicable When Proving Reasonable Apprehension

In Rhoades v. Avon Products, Inc., 2007 WL 2983757 (9th Cir. 2007), the Ninth Circuit Court of Appeals applied Federal Rule of Evidence 408 in a way in which I don't think it has ever been applied before.  I think that its decision was correct.

In Avon, the plaintiff, Dean Rhoades, the owner of DermaNew, a new cosmetics company, attempted to register certain products and slogans (such as "If It Is Not DermaNew, It Is Not Personal Microdermabrasion"), with the Patent and Trademark Office.  Avon, which distributes the ANEW skin care product line, then proceeded to challenge several of DermaNew's applications before the Trademark Trial and Appeal Board, file opposition proceedings, etc.

The two parties subsequently entered into settlement negotiations, which lasted more than four years.  As these negotiations began to break down, Avon's counsel sent a letter to DermaNew.  The letter promised that Avon would "initiate whatever additional proceedings or litigation is necessary to protect Avon's trademark rights."  The letter noted that it was "written for settlement purposes only and shall not be admissible for any purpose in any legal proceeding."

DermaNew thereafter filed a complaint in California Federal District Court, seeking a declaratory judgment that its trademark applications do not infringe on Avon's.  Avon then moved to dismiss the complaint based upon, inter alia, lack of subject matter jurisdiction on the ground that DermaNew failed to establish that it had a real and reasonable apprehension that it would be subject to liability if it continued to manufacture its product, a requirement before a party can bring an action for a judgment declaring that it is not infringing a trademark.  Avon claimed that its counsel's letter to DermaNew was inadmissible to prove this apprehension under Federal Rule of Evidence 408.

Federal Rule of Evidence 408(a) states that evidence of compromises, offers to compromise, and related statements are inadmissible to prove liability for, invalidity of, or amount of a claim that was disputed as to liability or amount, or to impeach through a prior inconsistent statement or contradiction.  Rule 408, however, goes on to state that evidence is admissible if offered for purposes not prohibited by 408(a).  The Rule then lists as three illustrative examples:  proving bias, negating a contention of undue delay, and proving an effort to obstruct a criminal investigation or prosecution.

Of course, proving reasonable apprehension is not one of these examples, but on appeal the Ninth Circuit correctly found that these examples are merely illustrative.  The more important part of Rule 408 is that it states that evidence of compromises, etc. is admissible unless it is used for a purpose specifically exluded under 408(a).  Thus, because DermaNew was not using the letter to prove the (in)validity of Avon's trademark claim or the amount it could or could not recover on its claim, the letter was admissible as not covered by 408(a), despite the alleged disclaimer included by Avon's counsel.  While this is the first case I have seen where Rule 408 has been found inapplicable in this declaratory judgment situation, courts facing such situations in the future should apply the Ninth Circuit's analysis.

-CM

The Myth of Fingerprints, Part 2: Maryland Judge Primarily (and Wrongfully) Relies on Dissenting Opinion in Crisp case

I have now read the opinion of Judge Souder concluding that fingerprint analysis fails the Frye test for admissibility.  It seems to me that the vast majority of Souder's analysis comes from the dissenting opinion in United States v. Crisp, 324 F.3d (4th Cir. 2003).  Let's start with the majority opinion in the Crisp case.

Crisp was convicted of multiple crimes in connection with an armed bank robbery in Durham, North Carolina.  He then appealed, claiming that (1) expert handwriting analysis and (2) forensic fingerprint analysis was inadmissible because it failed to satisfy the test laid out in Daubert v. Merrill Dow Pharmaceuticals, Inc.  The majority concluded that both forms of evidence were admissible under Daubert, which requires that expert evidence be "the product of reliable principles and methods" or otherwise reliable.

Judge Michael dissented, arguing that the prosecution had not proven that the two types of analyses were reliable under Daubert.  Judge Michael specifically noted, "I am not suggesting that fingerprint and handwriting evidence cannot be shown to satisfy Daubert.  I am only making the point that the government did not establish in Crisp's case that this evidence is reliable. "

Judge Michael noted that simply because these forms of expert evidence were admissible under Frye did not automatically mean that they were admissible under "the more exacting analysis now required" under Daubert, which requires that expert evidence be "the product of reliable principles and methods" or otherwise reliable.  The government needed to present evidence that fingerprint analyses were reliable, and it did not do so in Crisp.  Judge Michael then proceeded to apply Daubert's more exacting analysis and find that the government had not proven that fingerprint and handwriting analyses satisfied the Daubert test.

Ostensibly, however, Judge Michael found that the government later did establish that fingerprint analyses satisfy Daubert, as he was part of the three judge panel in the per curiam deicsion in United States v. Gray, 85 Fed.Appx. 908 (4th Cir. 2004), which found that fingerprint analyses are admissible under Daubert.

Now, let's look at Judge Souder's opinion.  The bulk of her opinion consists of cites to Judge Michael's dissenting opinion, where he questions the reliability of fingerprint analyses.  Then, in the next sentence after one of these citations, she makes the assertion, without any authority, that the Frye standard is more stringent than the Daubert standard.  This argument directly contradicts with Judge Michael's argument that Daubert's test is more stringent than Frye's test. 

So, let's break down Judge Souder's opinion.  She disagrees with the majority opinion in Crisp.  She disagrees with Judge Michael's dissenting opinion in Crisp to the extent that it held that the Daubert test is stricter than the Frye test.  Furthermore, she disagrees with Judge Michael's decision in Crisp to the extent that it implictly ackowledged that fingerprint analyses were admissible under Frye.  And yet, Judge Michael's dissent in Crisp forms the centerpiece of her opinion.  Simply put, her opinion is nonsensical.

Here is a PDF of the judge's decision.

UPDATE:  A reader notes that Daubert can be applied more or less stringently than Frye.  This is indeed correct, and some courts have in fact referred to Frye as a more rigorous test. See, e.g., Grant v. Boccia, 137 P.3d 176, 183 (Wash.App. Div. 3 2006).  I wanted to clarify that my point was not that Judge Souder was acting nonsensically in holding that Frye was more stringent than Daubert or in citing to the portions of the Crisp dissent discussing the (un)reliability of fingerprint analyses.  My point was that Souder acted nonsensically in cherrypicking certain portions of Judge Michael's dissent while (a) failing to mention his overall conclusions, which contradict her conclusion, and (b) including her claim about Frye being more stringent than Daubert in the middle of these citations without noting that her claim directly contradicts Judge Michael's comparison of the two tests.

-CM

The Great Compromise: Hawaii Court Resolves Circuit Split Over Whether Rule 408 Applies In Third Party Situations

The recent decision of the District Court for the District of Hawaii in McDevitt v. Guenther, 2007 WL 2121241 (D. Hawaii 2007) discusses and I think resolves an interesting circuit split under Federal Rule of Evidence 408.  Rule 408 generally precludes the admission of evidence of compromises, offers to compromise, and related statements in federal cases to prove the validity, invalidity, or amount of a claim. 

The first classic case under this Rule would involve a plaintiff being prevented from introducing the defendant's offer to pay the plaintiff a certain amount of money during failed settlement negotiations as evidence that the defendant knew that he was at fault and that the amount of money offered equaled the amount of the defendant's liability.  The second classic case would involve the defendant being prevented from introducing evidence that he rejected the plaintiff's offer to settle a case for a small amount of money to show that that the plaintiff knew that he had a losing case (and that the defendant knew that he had a winning case).

The theories behind the Rule are (1) that parties might be making certain statements/offers in settlement negotiations to make a costly lawsuit go away, not because they believe the statements, and (2) that courts want to encourage settlements to avoid clogging courts with cases, and excluding statements made during these negotiations alows parties to speak openly during these negotiations without the fear that their words will later be disclosed in future cases.

Guenther, however, presented an atypical case in that the plaintiff, Timoth McDevitt, brought a lawsuit against the defendant, Lianne M. Guenther, claiming that she committed legal malpractice by failing to draft a proper prenuptual agreement, which meant that he had to pay more money to his wife upon their divorce than if they entered into a proper prenuptual agreement.  The amount of damages he claimed was the difference between what he would have paid to his wife under the proposed prenuptual agreement and the amount he agreed to pay his wife after settlement negotiations (Guenther was not involved in the settlement negotiations).

The problem was that McDevitt was using evidence of a compromise with his wife to prove the amount of a claim, so under a literal reading of Rule 408, the evidence should have been excluded.  According to the court in Guenther, however, "[c]ourts are split as to whether Rule 408 bars admission of evidence from a settlement between plaintiff and a third party to calculate a claim for damages against a defendant who is not a party to the original suit in which the settlement occurred."  The Hawaii court sided with those courts finding such evidence inadmissible; I agree.

The Advisory Committee Notes to Rule 408 when it was first proposed in 1972, combined with the Advistory Committee Notes to Rule 408 when it was amended in 2006, clearly support the court's position.  In 1972, after discussing the 2 theories behind the Rule, the Advisory Committee noted: "While the rule is ordinarily phrased in terms of offers of compromise, it is apparent that a similar attitude must be taken with respect to completed compromises when offered against a party thereto.  This latter situation will not, of course, ordinarily occur except when a party to the present litigation has compromised with a third person."

In 2006, the Advisory Committee noted that the amendment it made to Rule 408 "makes clear that Rule 408 excludes compromise evidence even when a party seeks to admit its own settlement offer or statements made in settlement negotiations."  This is beacuse Rule 408 protects both parties to the negotiation, so one party to the negotiations cannoy unilaterally waive the protections of Rule 408.

Thus, the 1972 Notes tell us that Rule 408 covers "third party" situations like the fact pattern in Guenther, and the 2006 Notes tell us that Rule 408 is applicable in this "third party" situation, regardless of whether the party to the settement negotiations is offering the evidence or having the evidence offered against him.  The way I see it, the circuit split has been resolved, and all federal courts in the future should act in conformity with the Guenther opinion.

-CM

The Myth of Fingerprints: Maryland Judge Rules That Fingerprint Evidence Fails the Frye Test

Baltimore County Judge Susan Souder has made a landmark ruling in finding the prosecution's fingerprint evidence inadmissible in a capital murder case because it failed to meet the standard for admissibility laid out in Frye v. United States, which looks at whether the test at issue is generally accepted as reliable in the scientific community.  It should be noted that in federal courts and in many state courts, the test laid out in Frye has been replaced by the test laid out in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993).

According to some sources, Souder is the first Maryland judge to find fingerprint evidence inadmissible.  She did so in a 32-page ruling, relying heavily on an Oregon case in which a lawyer was wrongfully linked to the 2004 Madrid train robbings through fingerprint evidence.  Professor David Faigman seems to have the best quote on the decision so far, noting that before DNA evidence, fingerprints were considered the gold standard of forensic science; according to Faigman, Souder is saying that the emperor has no clothes, which is troublesome for other forensic evidence because it is considered "less reliable" evidence than fingerprint evidence.  Thus, not only should this decision lead to fingerprint evidence being challenged; it also means that almost all forensic evidence can be challenged.

I'll have more on this landmark decision after I read the opinion.

-CM

Capturing The Friedmans, The Aftermath: Hypnosis Evidence Should Not Overturn Convictions

A few years ago, some of you might have watched Andrew Jarecki's Academy Award nominated documentary, "Capturing the Friedmans." Jarecki initially wanted to make a documentary about children's birthday party entertainers in New York, including David Friedman.  Jarecki, however, learned that David's brother, Jesse, and his father, Arnold, had been convicted of sex crimes against children whom they taught in computer classes out of their Long Island home, and decided to shift the focus of his documentary to them.

Arnold Friedman committed suicide in jail, but Jesse, who pleaded guilty as a teenager to 243 counts of sex crimes against children after several alleged victims gave grand jury testimony, served 13 years.  Based upon the documentary, Jesse has now sought to have his convictions overturned and clear his family name, a la Randall Adams in the wake of Errol Morris' documentary "The Thin Blue Line."

It is extremely unlikely, however, that he was have similar success.  In Jarecki's documentary, a 24 year-old man stated that he remembered being abused by the Friedmans only after being hypnotized.  Upon seeing the doc, Jesse and his lawyer investigated and determined that several other youths making abuse allegations against the Friedmans only made these allegations after being hypnotized.  Hypnotically refreshed testimony is inadmissible in New York courts.

It seems that Jesse could raise two arguments, both of which would fail.  First, Jesse could claim that the fact that these individuals were hypnotized was material, exculpatory evidence under Brady v. Maryland, which prosecutors failed to disclose before their Grand Jury testimony, necessitating a new trial.  This argument would fail because in United States v. Williams, 504 U.S. 36 (1992), the Supreme Court found that Brady evidence does not need to be disclosed at the Grand Jury stage.

Jesse could also argue that his confession was not "voluntary" because it was given without him knowing that the alleged victim's statements against him would be inadmissible at trial.  This argument will also fail because New York courts, like other courts, have held that a confession is not rendered involuntary simply because the police or or others procure it through inadmissible evidence such as polygraoh results; in fact, the police can even procure a confession based upon deceptive or false statements as long as they are not fundamentally unfair. See, e.g., People v. Garcia, 284 A.D.2d 106, 107 (N.Y.A.D. 1 Dept. 2001).

-CM

You Wouldn't Like Me When I'm Angry: West Virginia Court Will Likely Exclude Character Evidence In Ex-Attorney Murder Case

Stephen R. Fielder, previously a West Virginia lawyer, has been charged with murdering his ex-wife.  His ex-wife's body was found dismembered into parts that were stuffed into several suitcases by a creek.

Fielder is trying to raise a diminished capacity defense based upon the claim that he has damage to his thalmus as the result of several strokes he suffered.  On the other hand, the prosecutor expects to request that past examples of Stephen Fielder's alleged "explosive temper" be admissible at trial.

Fielder's attempted claim has a much greater chance of success than does the prosecutor's request.  Like Federal Rule of Evidence 404, under West Virginia Rule of Evidence 404, character evidence is generally inadmissible to prove that a person had a propensity to act in a certain manner and that he/she acted in conformity with that propensity at the time in question (e.g., Fielder had a propensity to get extremely angry and thus likely acted in conformity with his propensity for getting extremely angry when killing his wife).

As under the Federal Rules, Rule 404(a) of the West Virginia Code of Evidence does allow a criminal defendant to open up the door and present evidence of his good character (e.g., Fielder could present evidence that he is a non-violent person), and then the prosecutor could present evidence of his bad character.  But before the prosecutor can present bad character evidence, the defendant has to present good character evidence.

Furthermore, even were character evidence to come in through this Rule (there's no indication that Fielder will present good character evidence), Rule 405(a) of the West Virginia Code of Evidence (like its fedral counterpart) only allows character to be proven through opinion and reputation evidence (e.g., a neighbor testifying (a) that in his opinion he thinks that Fielder is violent/non-violent, or (b) that Fielder has a reputation in the community for being violent/non-violent).

The "past acts" claimed by the prosecutor would thus be an impermissible form of character evidence in this case.

-CM

Beyond Therapy: Court Finds Police Violation Of Court Order Renders Confession Inadmissible

Allen R. Johnson has been aquitted by a Missouri court of charges that he molested his granddaughter after the judge ruled that his confession was inadmissible against him at trial.  The 71 year-old Johnson reportedly admitted to sheriff's investigators that he touched his granddaughter's "private parts" and that he received sexual gratification from her touch.

The judge ruled that the confession was inadmissible because it was given at a time when, pursuant to a court order that the police disobeyed, Johnson should have been en route to the Mid-Missouri Mental Health Center in Columbia.  Johnson was then acquitted after the jury received only the alleged victim's testimony and no physical evidence.

A party in Missouri can request that the judge hearing a case issue written findings, but such a request was not made here, so the grounds upon which the judge ruled are unclear.  Both parties agreed that they could find no prior cases with remotely similar facts to the case at issue.

After a brief search through Westlaw, I also found no similar cases.  Confessions are generally found to be admissible as long as, considering the "totality of the circumstances," they are voluntarily made, and they are inadmissible if they are involuntarily made based upon, inter alia, overbearing coercion or police abuse. 

Of course, if the mental health center found that Johnson was mentally incompetent, his confession likely would have been "involuntary" and inadmissible.  But I'm not sure that his confession should have been rendered involuntary simply because police failed to comply with a court order to send him to a mental health center (assuming that he was later found competent at the center).  Unfortunately, without written findings, it is impossible to determine the totality of the circumstances surrounding the confession and thus the validity or invalidity of the court's ruling.

-CM