EvidenceProf Blog

Evidence And Ethics 4: Professor Orenstein's Special Issues Raised by Rape Trials

I first came across the writings of Indiana University School of Law Professor Aviva Orenstein when I discovered her article, "My God!":  A Feminist Critique to the Excited Utterance Exception to the Hearsay Rule, 85 Cal. L. Rev. 159 (1997), while preparing my own article on the exception.  She has written a number of other excellent articles and sponsored the terrific symposium, Children as Witnesses: A Symposium on Child Competence and the Accused's Right to Confront Child Witnesses.  Her latest article is her contribution to the Ethics and Evidence Symposium, Special Issues Raised by Rape Trials. 

Professor Orenstein offers this description of the article:

"In analyzing the role of evidence and ethics in rape trials, this brief essay considers the cultural milieu surrounding rape allegations, examining assumptions about victims and perpetrators, men and women, the chaste and the deviant.   After describing the legal zeitgeist concerning rape, focusing on the reversal of false rape convections based on DNA evidence and the advent of the big-media rape trials involving various celebrities, the essay turns to three separate issues of ethics and evidence that arise regularly in rape trials:  (1) naming the victim; (2) shielding the victim's sexual history; and (3) civil settlements of rape charges.  For all three of these discrete categories, the essay uses the fairly recent case of Kobe Bryant, a famous basketball player accused of rape, to illustrate the evidence and ethical issues.  Both the Rules of Evidence and the Rules of Professional Conduct are demonstrably unhelpful in assisting attorneys to confront these problems.   The analysis highlights the limits of the law to effectuate practical change or to transcend, let alone improve, social attitudes.  This is true not only because of the cultural forces promoting rape myths, but because of changes in communication, whereby the internet and blogosphere can release information about the victim and the case, even if the rules of ethics and evidence might withhold such information.  The essay therefore concludes that protecting the name, identity, and sexual history of the victim via rules of evidence and ethics, seems futile, at least in the high profile case involving celebrities."

Furthermore, the article notes that "[t]he intersection of evidence and ethics in rape trials raises questions not only of the limits of law but also questions concerning the rights of the accused and the balance between protection of the victim and paternalism towards her."  Orenstein's article is an incredibily even-handed account of the issues, and it addresses issues that are increasingly important with the 24 hour news cycle and the whittling away of the privacy of both alleged victims and assailants.

-CM

I Put A Spell On you: Wisconsin Court Allows For Admission Of Hypnotically Refreshed Testimony

John Joseph Moore is currently standing trial, facing charges that he she shot and killed a young mother while she was driving down Interstate 20 in Wisconsin in 2004.  The young mother was Stephanie Dover, and the case is just reaching trial now because her fiance, Gene Derrick, was able to relay the facts of the shooting to police, but told police that he was unable to see the license plate number of the black pickup truck from which the gunshots emanated.  Police, however, eventually charged Moore after he told them that someone in Dover's car made an obscene gesture to him, altough he has denied shooting Dover. 

Despite Derrick's claims about not seeing the license plate number, investigators thought that they could trigger his memory through hypnosis, and apparently the hypnosis at least partially worked because the prosecution wanted introduce the tape of Derrick's hypnosis into evidence.  On Tuesday, the judge hearing the case said that in his 17 years on the bench, he'd never seen proferred hyponosis evidence, but he ruled that the prosecutor could admit it.  The judge's statement makes me wonder (and hope) that he followed the correct procedure for determining the admissibility of hypnotically refreshed testimony.

As I've noted before, courts are sharply split on whether and/or under what circumstances hypnotically refreshed testimony is admissible, with at least four different approaches being taken.. See State v. Johnston, 529 N.E.2d 898, 904-05 (Ohio 1988).  In State v. Armstrong, 329 N.W.2d 386, 394 n.23 (Wis. 1983), the Supreme Court of Wisconsin set forth nine factors for Wisconsin courts to consider when deciding to admit hypnotically refreshed testimony:

     -1. The person administering the hypnotic session ought to be a mental health person with special training in the use of hypnosis, preferably a psychiatrist or a psychologist.

     -2. This specially trained person should not be informed about the case verbally. Rather, such person should receive a written memorandum outlining whatever facts are necessary to know. Care should be exercised to avoid any communication that might influence the person's opinion.

     -3. Said specially trained person should be an independent professional not responsible to the prosecution, investigators or the defense.

     -4. All contact between the specially trained person and the subject should be videotaped from beginning to end.

     -5. Nobody representing the police or the prosecutor or the defendant should be in the same room with the specially trained person while he is working with the subject.

     -6. Prior to induction a mental health professional should examine the subject to exclude the possibility that the subject is physically or mentally ill and to confirm that the subject possesses sufficient judgment, intelligence, and reason to comprehend what is happening.

     -7. The specially trained person should elicit a detailed description of the facts as the subject believes them to be prior to the use of hypnosis.

     -8. The specially trained person should strive to avoid adding any new elements to the subject's description of her/his experience, including any implicit or explicit cues during the pre-session contact, the actual hypnosis and the post-session contact.

     -9. Consideration should be given to any other evidence tending to corroborate or challenge the information garnered during the trance or as a result of post-hypnotic suggestion.

I've seen issues of hypnotically refreshed testimony arising with much more frequency than in the past, and it will be intersting to see whether the the approaches taken become more uniform or varied.

-CM

 

Collateral Damage, Take 2: Shane Ragland Found Liable For Kentucky Football Player's Death

Earlier, I reported on the civil wrongful death suit brought against Shane Ragland after he pleaded guilty to manslaughter in connection with the killing of University of Kentucky football player Trent DiGiuro after DiGiuro kept him out of a fraternity.  I noted that while defense counsel claimed that Ragland should not automatically be found liable based upon his guilty plea, the court would find Ragland automatically liable under the doctrine of collateral estoppel.  On Monday, the court did just that, finding Ragland liable for DiGiuro's death, with Ragland's plea meaning that plaintiffs' counsel didn't have to prove that Ragland killed DiGiuro.

-CM

Evidence And Ethics 3: Professor Marianne Wesson's Remarkable Stratagems And Conspiracies

University of Colorado Law School Professor Marianne Wesson's contribution to the the Ethics and Evidence Symposium is "Remarkable Stratagems and Conspiracies": How Unscrupulous Lawyers and Credulous Judges Created an Exception to the Hearsay Rule.  The article is quite interesting in that it consists of a comprehensive discussion and analysis of the single case undergirding the hearsay exception contained in Federal Rule of Evidence 803(3) and state counterparts and concludes that it is a house of cards.  That case is Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285 (1892).  Professor Wesson provides a wonderfully detailed accounting of the facts of the Hillmon case in her article, but here are the brief facts:

     -Sallie Hillmon claimed that a dead body found in a creek belonged to her husband, John, and thus sought to recover on insurance policies on his life;

     -The insurance companies claimed that the Hillmons were trying to defraud them and that the body actually belonged to John's traveling partner, Frederick Walters;

     -The insurance companies sought to introduce letters allegedly written by Walters to his sister and fiancee in which he stated his intention to go with John Hillmon on a trip.

The Supreme Court agreed with the insurance companies, finding that the letters were admissible as an exception to the rule against hearsay because they were statements of intent which could be used to prove that Walters acted in accordance with his declared intent.  As Wesson notes, "This hearsay exception is lacking in empirical or policy justification, yet has displayed remarkable durability, finding its way into the Federal Rules of Evidence and the evidence codes of nearly all American jurisdictions, as well as into the British law, chiefly because of the prestige of the Hillmon decision."  Specifically, Federal Rule of Evidence 803(3) indicates that "[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will" is admissible as an exception to the rule against hearsay.

And yet, the point of Wesson's article is not to join in the debate over efficacy of the rule, but instead to argue that the Hillmon case isn't what the Supreme Court and subsequent courts made it out to be.  Instead, there were several problems with the case, the most notable one being that the letter allegedly sent to Walters fiance, "was, if not a fake, full of lies, and its provenance was misrepresented by witnesses who must have been solicited by the companies' lawyers."  Wesson thus argues that revocation of Rule 803(3) would "be fitting tribute to Hillmon, and a suitable apology for the insults the law and its actors have leveled at his reputation and his memory."

I asked Professor Wesson what led her to write such a thorough and interesting analysis of Hillmon, and she replied:

"I came to my obsession with the Hillmon case less through my interest in the law of evidence than because of my lifelong love of narrative.  It was the story more than the law that captivated me at first.  I knew its general public outlines (in the way all Evidence professors do) for years before I got serious and dug up the archive and the old newspaper accounts that transformed my understanding of the events behind the case.  One day a few years ago a typical classroom discussion about why the Court would have invented this curious exception to the hearsay rule (yes, I know there were some precedents from New Jersey and the UK, but not very strong ones) finally brightened the bulb for me and gave me a flash of what felt like insight.  Could it be, I suggested to my students, that the Justices ruled as they did because they understood the story as one about a wily frontier outlaw and his effort to fleece a trio of respectable businesses, and could not resist taking such steps as they could to prevent the miscreant from profiting from his crime?  (John Maguire’s account of E.R. Thayer’s notes about the Court’s consideration of the case may have suggested this idea to me.)  It seemed like a plausible and sufficient explanation for an otherwise puzzling decision.  Sending the case back for retrial on the ground that the companies had not enjoyed enough peremptory challenges probably would not have changed the result, if Miss Alvina Kasten’s letter was still to be kept out of evidence.  And there was no getting around the letter’s hearsay nature, nor could the Court with a straight face endorse the companies’ argument that the letter was a business record.  Finding a hearsay exception that would accommodate the letter’s admission, even if it had to be one that none of the companies had argued for, was the only measure that would work.  Armed with this idea, I made up my mind to see what I could discover about the story that wasn’t revealed by the Court’s account of the facts.  And the more I found, the deeper my obsession grew.  I’m still discovering new documents and materials, and now I’m working on a book about the case.  It’s not only a terrific opportunity to reflect on how the law is sometimes made, but a window into a turbulent, fasciniating, infuriating time in the history of the United States."

I also asked Professor Wesson what she thought about the circuit split over whether Rule 803(3) allows for the admission of statements that reflect on not only the state of mind of the speaker, but which also speak to the alleged future acts of some other person.  She responded:

"Your question about whether I think the reach of the Hillmon doctrine ought to be limited in the way suggested by the Judiciary Committee’s report is a good one.  I understand the theory that statements like “I have an understanding with Hillmon,” which lurks implicit in the statement “I am going with Hillmon to start a sheep ranch,” are more dangerous (in the hearsay sense) then pure statements of individual intention like “I am going for a walk in the park.”  The former is subject to errors of perception and memory as well as the hazard that the declarant is lying; the latter subject only to the risk of prevarication.  But in general the law of evidence considers the risk of prevarication alone sufficient to exclude an out of court statement, unless there is reason to think it trustworthy.  (The out of court statement “I had a terrible stomachache last night” is inadmissible if not made for purposes of diagnosis or treatment, although the risk of failed perception is nonexistent and the risk of failed memory almost so.)  It’s true there are some hearsay exceptions apart from the Hillmon exception that seem to accommodate statements that are relatively unprotected from the risk of mendacity, if the dangers of misperception or failed memory are small: statements of present physical sensation (like pain) for one, statements made to medical professionals for purposes of diagnosis only, for another.  But those exceptions seem to me to rest more on some theory of necessity than on the statements’ reliability.  I concede neither justification (necessity nor reliability) for statements about the declarant’s intentions.  So to return to your question, I would prefer to see the exception for statements of the declarant’s intention abandoned altogether, rather than merely limited to statements that do not implicate the intentions of another or events in the past.  But as the perfect should not destroy the good, of course I agree that an exception so limited is preferable to the unbridled exception that too many courts have been willing to recognize.  I’ll add only that the question of how to enforce such a limitation when the statement is a mixed one like “I am going with Hillmon to start a sheep ranch” (or “I’m going out to the parking lot to buy a lid of marijuana from Angelo”) is vexed, unless such statements are to be excluded altogether.  Limiting instruction? (lol, as my students would say)."

-CM

I Feel The Heat Run Down: Eleventh Circuit Finds Lay Witness Can Testify About "Heat Runs"

In United States v. Perez-Lopez, 2008 WL 185507 (11th Cir. 2008), the Eleventh Circuit rendered an interesting expert evidentiary ruling which conflicts with precedent in other circuits.  In Perez-Lopez, Oscar Perez-Lopez was charged with conspiracy to possess with intent to distribute more than five kilograms of cocaine and possession with intent to distribute cocaine. See id. at *1  During the prosecution's case, Drug Enforcement Administration Agent Michael Lumpkin testified that after Perez-Lopez's alleged co-conspirator was apprehended, he provided information to authorities concerning a ranch owned by Perez-Lopez. See id.  Lumpkin then testified that while he was monitoring this ranch, he followed an Expedition, which was registered to Perez-Lopez and his wife, leave the ranch, drive through several cities, and return to the ranch. See id. at *2.  Perez-Lopez described the vehicle's course of action as "heat runs or checking to see if it was being followed by law enforcement." Id. (emphasis added).       

Perez-Lopez objected, contending that this testimony constituted expert opinion evidence and that the prosecution did not qualify Lumpkin as an expert witness. See id.  The prosecution countered that it was merely asking Lumpkin to describe his observations, and the trial court overruled the objection. See id.  Lumpkin then proceeded to testify that "the vehicle pulled into cul-de-sacs and drove around the city without stopping at any particular location before returning to the ranch." Id.

After Perez-Lopez was convicted on both charges, he appealed to the Eleventh Circuit, which affirmed his convictions.  On the issue of whether the trial court properly admitted Lumpkin's testimony on "heat runs," the Eleventh Circuit noted that pursuant to Federal Rule of Evidence 701, "[i]f the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

Meanwhile, Federal Rule of Evidence 702 indicates that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

Because Lumpkin was not qualified as an expert witness, the question thus became whether his testimony on "heat runs" was rationally based on his perceptions and not based on technical or other specialized knowledge.  The Eleventh Circuit found that the trial court did not abuse its discretion in admitting Lumpkin's testimony pursuant to Federal Rule of Evidence 701 "because his opinion that the vehicle he observed was conducting a 'heat run' or 'checking to see if it was being followed,' was based on his personal observations of the vehicle and his past experience as a DEA agent.'" Id. at *4.

This ruling is inconsistent with the rulings by the two other circuits which have considered the issue.  In United States v. Garcia, 86 F.3d 394 (5th Cir. 1996), a government agent gave testimony regarding the defendants' use of "car sweeps," "stash houses" and "heat runs," and also testified that 166.9 kilograms of cocaine recovered from an alleged stash house was indicative of a large drug trafficking organization. (emphasis added).  On appeal, the defendants claimed that "this testimony was not helpful because the jury could have drawn its own conclusion as to whether a large drug trafficking organization controlled the cocaine." Id.  at 400.  The Fifth Circuit disagreed, finding that the agent's testimony fell under the purview of Federal Rule of Evidence 702 because "[t]he average juror may not be aware that the presence of 166.9 kilograms of cocaine is indicative of a large drug trafficking organization, and may not be aware that large drug trafficking organizations commonly use 'car swaps,' 'stash houses' and conduct 'heat runs.'"

In United States v. Brown, 110 F.3d 605, 610 (8th Cir. 1997), the Eighth Circuit similarly found that testimony concerning the modus operandi of drug dealers constitutes expert testimony because it is testimony concerning activities which are not something with which most jurors are familiar.  As support, the Eighth Circuit cited with approval the Garcia court's ruling with regard to "heat run" testimony.

I agree with the Fifth and Eighth Circuits and disagree with the Eleventh Circuit.  The Eleventh Circuit's ruling that the DEA agent's "heat run" testimony was proper lay witness testimony because it was based upon his personal observations only satisfied part (a) of Rule 701, establishing that it was "rationally based on the perception of the witness."  The Eleventh Circuit also had to find under part (c) that his testimony "was not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

As the Fifth and Eighth Circuits correctly noted, however, that testimony about "heat runs" is not something with which most jurors are familiar, meaning that the testimony was based upon technical or other specialized knowledge gained from police/DEA work.  The Eleventh Circuit's decision thus seems in error as the DEA agent needed to be qualified as an expert witness (it is unclear why the prosecution did not seek to qualify the agent as an expert witness).

-CM 

Evidence And Ethics 2: Professor Todd Pettys' The Emotional Juror

University of Iowa College of Law Professor Todd Pettys' contribution to the Evidence and Ethics Symposium is The Emotional Juror.  The article addresses the ethical issue of what obligation trial attorneys (partularly prosecutors) and judges have to try to minimize the emotional impact of visceral evidence.  While part of Pettys' argument is that attorneys and judges do have such an obligation when evidence is particulary incendiary, his larger point is that the legal community too frequently and simplisticly labels emotional evidence as prejudicial.

He notes that while other disciplines have increasingly found that emotions and rationality are inextricably and usefully linked, the legal community has stubbornly adhered to a reason/emotion dichotomy under which emotional evidence is categorically deemed "unfairly prejudicial" under Rule 403.  Pettys contends that "the legal community  needs to move beyond the notion that all emotional influences automatically fall on the 'unfair prejudice' side of the balance that Rule 403 prescribes for testing the relative weight of evidence's probative value and potential for unfair prejudice."  Instead, "[l]egal professionals need to understand the ways in which emotions aid rational decision making, while also better understanding the ways in which emotions can understandably skew jurors' judgments."

Part I of the article opens with a brief, three-part definition of the term "emotions."  Part II considers the roles emotions play when people make decisions by looking at recent research.  Pettys pays particular attention to Damasio's theory of somatic markers, which posits that there are so many  relevant factors in any decision such that a person would spend an inordinate amount of time making decisions but for emotions, which "help us sort through the morass."  He also notes how emotions help us determine which factors are most salient in any decision and prompt us to "take certain kinds of action," based upon factors such as cognitive dissonance and the use of emotions as "commitment devices."

Part III then applies this research to three situations where jurors are influenced by emotions that arise upon hearing or seeing particular items of evidence:  (1) those that relate to jurors' efforts to make demeanor-based assessments of witnesses' credibility, (2) those that relate to jurors' efforts to constrict coherent narratives that account for all of the credible evidence to which they have been exposed, and (3) those that relate to jurors' willingness to render a verdict that is faithful to the facts that they believe the evidence has established.

One of the main points Pettys makes is that "[r]ather than naively tell jurors to ignore their emotions, we need to encourage jurors to engage in what Samuel Pillsbury calls 'emotional self-examination,' reserving Rule 403 for those instances in which we believe such encouragement would be ineffectual."  In other words, instead of excluding potentially inflammatory evidence under Rule 403 and telling jurors to ignore their emotions, we should tell jurors to reflect on their emotions, "to try to identify the appraisals on which those emotions are based, to think carefully about whether those appraisals are warranted by the witnesses' testimony..., and to think carefully about whether those appraisals are consistent with all of the other evidence...."

The article is important for the legal community as a whole and an essential read for trial judges and lawyers who are frequently presented with the question of what type of emotional evidence to submit and admit.  I definitely leaned more toward the side of submitting and admitting most emotional evidence, but my beliefs were called into question as a result of hearing about two recent Australian mock trial  studies suggesting that jurors presented with "gruesome evidence," such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence.  I asked Professor Pettys what he thought about these findings, and he responded as follows: 

"I have not examined the Australian mock jury studies that you've cited, and so my initial response is a little tentative.  In general terms, let me offer the following thoughts.  Scholars often appear to assume that when the admission of a certain type of evidence drives conviction ratesup, the evidence's influence is somehow illegitimate.  Scholars certainly often make that assumption with emotionally powerful evidence--they often assume that, if the admission of such evidence leads to higher conviction rates, the evidence is somehow acting on an irrational, or sub-rational, level.  I readily concede that emotionally powerful evidence presents this risk--hence my indication in my Fordham essay that judges should try to guard against such effects.  I believe, however, that the standard analysis of such cases is too one-sided, assuming too quickly that the evidence's influence is illegitimate.

Suppose I designed a study in which my hypothesis were as follows:  Citizens find it extraordinarily difficult--both emotionally and morally--to convict a fellow citizen of a heinous crime, such as murder.
I hypothesize that, in order to feel sufficiently emboldened to send a fellow citizen to death or life imprisonment, the jurors need to be squarely confronted with the raw, ugly facts of the crime--by seeing and hearing such evidence, the jurors will be able to summon the moral and emotional fortitude they will need in order to convict.  In testing my hypothesis, I find that the admission of gruesome evidence leads to higher conviction rates.

Now, what should one conclude from such a study?  If my hypothesis at the outset were that emotionally loaded evidence makes jurors behave less rationally, one might conclude that the results support my
hypothesis.  If, on the other hand, my hypothesis at the outset were that jurors are reluctant to convict even in the face of persuasive evidence, and that they need help summoning the moral and emotional
courage to follow where the evidence leads, then wouldn't the very same results also seem to support my hypothesis?

I'm not suggesting that all studies of the matter--including the Australian study (about which I know virtually nothing)--are flawed.  I am suggesting, however, that there are both legitimate and illegitimate ways in which emotionally powerful evidence might drive up conviction rates, and that it's important to distinguish between those two possibilities when considering what kind of effects emotionally powerful evidence exerted in a particular case."

-CM

Time Stands Still: Maryland Court Finds Statements Admissible As Excited Utterance Despite Lack Of Evidence On Lapse Of Time

The Maryland Court of Special Appeals affirmed the conviction of a Pikesville, Maryland attorney for assaulting his wife after determining that the trial judge properly found that the wife's statements to a friend constituted excited utterances.  On March 6, 2006, Samuel Abram Seidler allegedly dragged his wife Phoebe down the stairs, hit her, choked her, and pulled her down the hall by her hair.  According to the trial testimony of Phoebe's friend, Robert Fryer, at some point after this alleged attack, Phoebe told him about the attack.  Phoebe claimed spousal privilege and refused to testify against her husband. 

While there was no evidence about how much time elapsed after the alleged attack, the trial judge found that Phoebe's statements to Fryer were admissible as excited utterances because Fryer testified that when she made the statements, she was upset, visibly shaken, and crying, with fresh bruises, red marks, and a split, bleeding lip.  The Maryland Court of Special Appeals affirmed, finding that Phoebe's statements constituted excited utterances, and rejecting defense counsel's claims that testimony by the defendant's father and evidence allegedly withheld by the prosecution necessitated a new trial.

Without seeing the court's opinion, it is difficult to address these last concerns raised by the defendant.  That said, I see no error in the court finding Phoebe's statements constituted excited utterance despite the absence of evidence on the lapse of time between the alleged attack and her statements.  Maryland Rule of Evidence 5-803(2) indicates that "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition" is admissible as an exception to the rule against hearsay. 

While the absence of evidence on the lapse of time between the alleged attack and Phoebe's statements could have supported the finding that her statements to Fryer were not excited utterances, "[t]he time that elapsed between the occurrence of the event and the utterance is only one factor to be considered in determining the admissibility of the hearsay statement."  Alexander v. State, 1998 WL 857877 (Tex.App.-Dallas 1998).  Thus, for instance, in Alexander v. State, supra, the court found that a woman's statements identifying her assailant constituted excited utterances even though there was "no evidence showing how" much time passed between the attack and her statements because she was "visibly upset and crying" when she made the statements. Id. at *5. 

It seems reasonable to me that the Maryland Court of Special Appeals similarly concluded that Phoebe's statements were excited utterances based not only upon her being visibly upset/shaken and crying, but also based upon her fresh bruises and bleeding lip.  This evidence seemed not only to confirm that she was startled, but also seemed to be indirect evidence that not much time had elapsed since those injuries were caused.

-CM

Evidence and Ethics 1: Opening Thoughts on the Fordham Symposium

I recently had the privilege of reading the 15 wonderful articles in the Fordham Law Review's Evidence and Ethics Symposium Issue.  After reading the articles, I contacted Professor Daniel J. Capra, who brought together the impressive pool of authors who wrote pieces for the symposium, and he wrote me the following:

"My colleague Bruce Green runs the Stein program on law and ethics, and that program puts on a yearly symposium that is published in the Fordham Law Review. Bruce asked me to contact some of the people I know in the Evidence field to see if they wanted to contribute to a symposium on Ethics and Evidence. I had a list of 15 people whose scholarship I find interesting and challenging, and I contacted each of them. What you see is the product of that search process.

This was not a symposium where people met to present papers and exchange ideas. People picked a topic, I reviewed the topics and approved them, and the authors and law review students did the rest. I am very happy with the outcome."

As Professor Capra notes in his introduction to the symposium, each of the authors addresses important questions about the interrelationship between ethics rules and ethics rules, such as:

     (1) Do ethics rules impose any limitations on the use (and arguable abuse) of evidence rules?

     (2) Do evidence rule enforce ethical principals of lawyering, and if not, why not?

     (3) What specific areas of evidentiary practice are most in need of an infusion of ethical principles?

In subsequent posts throughout the next few weeks, I will post summaries and thoughts on these articles as well as some comments by the authors in response to questions I posed to them.  I think that the Symposium is a wonderful collection of articles on the ethics of evidence law, which are essential reading for professors, practitioners, judges, and law students.

-CM   

Refreshing Decision: Court Finds Documents Used To Refresh Recollection Not Protected Under Work Product Privilege

The United States District Court for the Northern District of Illinois recently addressed an interesting evidentiary issue in Reed v. Advocate Health Care, 2008 WL 162760 (N.D. Ill. 2008):  Is a party is entitled to discover documents which were used by opposing counsel to refresh the recollection of witnesses?  In Reed, nurses brought a class action lawsuit against the owners and operators of hospitals in the Chicago Metropolitan Area, claiming, inter alia, that they conspired among themselves and with other hospitals in the Chicago area to depress the compensation levels of registered nurses. See id. 

The plaintiffs claimed that Michael Shankman, the attorney for Advocate Health Care, one of the defendants, "improperly coached" Advocate's Vice President of Compensation and Benefits and Advocate's Director of Compensation during their depositions. Id. at *1.  Specifically, the plaintiffs claimed, inter alia, that Shankman became afraid that these witnesses "would not follow their rehearsed scripts" during their deposition testimony and thus supplied them "with a copy of a law review article 'containing a road map for the defense to win this very case.'" Id.

The plaintiffs accordingly argued that any materials such as the law review article which Shankman showed to the witnesses during their depositions were writings used to refresh their memories under Federal Rule of Evidence 612.  Because Rule 612 indicates that writings used in this manner must be produced to opposing counsel, the plaintiffs argued that the defendants had to produce the documents.

The defendants countered that defense counsel's selection of these materials constituted work product and that they thus were protected by the work product privilege.  If the work product privilege were applicable, the court could only order the defendants to produce them if it found that disclosure was in the interests of justice.

The court noted that there was mixed precendent on the issue but decided to side with cases such as James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138 (D. Del. 1982).  In Raytheon Co., the "court held that a binder of documents used for witness preparation constituted work product because the selection and compilation revealed important aspects of counsel's understanding of the case, but that the use of the binder to refresh the witness's memory prior to testifying constituted a waiver of the protection." 

I agree with this analysis and think that a party using documents to refresh witness' recollection and then claiming the work product privilege is attempting to use the privilege as both a sword and a shield, resulting in waiver. See Sauer v. Burlington Northern Railroad Co., 169 F.R.D. 120, 123 n.3 (D. Minn. 1996).  Furthermore, it seems clear that a party using documents to refresh witness' recollection could always claim that the documents are protected by the work product privilege because the selection of those documents would always reveal important aspects of counsel's undestanding of the case.  Thus, courts finding documents non-waiver of the work product privilege in these circumstances are essentially rendering Federal Rule of Evidence 612 meaningless.

-CM   

D'yer Maker: Jamaica To Review Evidence Act In Wake Of Police Corruption

Approximately 100 cases and Jamaica's Evidence Act look like they will be reviewed in the wake of Detective Constable Carey Lyn-Sue's confession that he falsified witness statements that were tendered as evidence in a murder case against a 22 year-old St. James man.  After facing pressure to reduce the huge backlog in the Jamaican court system due to witness absenteeism, the previous administration amended Jamaica's Evidence Act.  Amended Section 31D made provision for statements to be admissible in criminal proceedings in certain circumstances, where the witness:

     a) Is dead

     b) Is unfit, by reason of his bodily or mental condition, to attend as a witness

     c) Is outside of Jamaica and it is not reasonably practicable to secure his attendance

     d) Cannot be found after all reasonable steps have been taken to find him; or

     e) Is kept away from the proceedings by threats of bodily harm and no reasonable steps can be taken to protect the person.

The amended act also allows for video evidence to be admitted where a witness feels physically threatened in coming to court. 

In the wake of Carey Lyn-Sue's confession, however, current Prime Minister Bruce Golding has instructed Attorney General Dorothy Lightbourne to review the act and to determine whether this was an isolated incident, or, as one public defender has claimed, whether Section 31D has been consistently abused by unscrupulous 'investigators.'  Meanwhile, former Police Commissioner Trevor MacMillan has asked that amnesty be given to cops so that those who had falsified statements would come forward, allowing the innocent to be freed.

To me, it seems clear that Jamaica went too far in liberalizing its rules regarding the admissibility of statements made by unavailable witnesses.  While the United States allows for the admission of statements by witnesses who are unavailable under Federal Rule of Evidence 804(a) and state counterparts, it only does so when the statement at issue is thought to be reliable pursuant to one of the Rule 804(b) exceptions, which include former testimony and statements against interest.

Clearly, statements admitted under the former testimony exception aren't subject to police fabrication because there is a record of this testimony.  Furthermore, while the police could fabricate a statement against interest allegedly made to them, pursuant to the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), such a statement would be inadmissible against a criminal defendant under the Confrontation Clause.

-CM 

Sex, Lies, And Texting: Reports on Kwame Kilpatrick Case Misstate Potential Privacy Interest In Government Owned Devices Used By Employees

The Kwame Kilpatrick story has been all over the news, and I wanted to address a legal aspect of it that has been somewhat misreported.  The brief facts of the  scandal are as follows:  Kilpatrick, the married mayor of Detroit, and Christine Beatty, his then married chief of staff, testified last summer in a police whistleblower lawsuit that they had no sexual or romantic ties in 2002 and 2003.  The Detroit Free Press, however, got its hands on approximately 14,000 text messages on Beatty's city-issued pager for those years and found many examples of such ties.  For instance:

     -on October 3, 2002, Kilpatrick texted Beatty, "I'm madly in love with you."

     -on October 16, 2002, Kilpatrick texted Beatty, "I've been dreaming all day about having you all to myself for 3 days. Relaxing, laughing, talking, sleeping and making love."

As legal experts have noted, these text messages and other evidence might form an adequate basis for perjury or obstruction of justice charges against the pair.

The misstatment of law which I wanted to address is the categorical conclusion of many reporters on the story that employees never have a Fourth Amendment privacy right in text messages sent and received on government owned devices.  Such statements can be found all across the reporting on the story:

     -"When you use a city-owned device on a taxpayer-paid communications system to plot your dalliances, there is no such thing as privacy."

     -"But once even private citizens start using company equipment in their communications — whether it's e-mail from the office computer or text messages from the company cell phone or BlackBerry — expectations of privacy disappear. 'There is no right of privacy then. An employer can do anything he wants.'"

Such sweeping statements are misleading.  True, when the government, like any employer, tells an employee that an employer-issued computer, phone, or other device is subject to search, the employee likely has no reasonable expectation of privacy and thus no Fourth Amendment right in his use of the device.  That said, when an employer does not include such a disclaimer about the possibility of a search, courts often find that employees do have reasonable expectations of privacy and Fourth Amendment rights, as I noted in my reporting on a case where a court found that a search of a reverend's church-owned computer violated his Fourth Amendment rights.

Similarly, in Quon v. Arch Wireless Operating Co., Inc., 445 F.Supp.2d 1116 (C.D. Cal. 2006), a lieutenant told police department employees that he would not audit their city-issued pagers as long as they agreed to pay overages.  The pagers were subsequently audited, but the District Court for the Central District of California found that the audit violated the employees Fourth Amendment rights and that the text messages recovered were inadmissible because, inter alia, the employees had a reasonable expectation of privacy in their use of the pagers. Id. at 1141.  The court also found that the fact "[t]hat the pager in question was owned by the City add[ed] nothing by itself to the analysis" and rejected a "per se rule that public employees cannot have a reasonable expectation of privacy when using property owned by their employer." Id.

Thus, it seems clear that employees, including public employees, can have privacy interests in their employer-owned devices, with the key question being whether and to what extent the employer communicated to the employee that the device could be searched.

-CM

Power Of The Press, Take 2: Supreme Court Of Utah Adopts Reporter's Privilege

Utah has completed its transformation from one of only three states without some form of a reporter's privilege to a state with one of the strongest such privileges in the country with the passing of Utah Rule of Evidence 509.  I previously blogged about the proposed rule in December, and the Supreme Court of Utah finally adopted it yesterday, completing a process that has gone on since at least 2006.  My previous post has all of the specifics on Rule 509.  Briefly put, however, the privilege changes current Utah law under which news reporters refusing to disclose sources could be cited for contempt by judges and sent to jail.

The privilege grants near-absolute protection for the name and any information that would lead to the disclosure of the identity of confidential sources. Under Rule 509, a journalist will only have to identify a confidential source where there is clear and convincing evidence that the information is necessary to prevent substantial inury or death.  Furthermore, the rule covers unpublished information such as notes, outtakes, photos, tapes and documents collected by a reporter in pursuit of a story and states that a judge can order disclosure of such materials only after balancing the need of the party seeking the information against the public interest in protecting the free flow of information.

-CM

Quite Feasibile Now: Court Fails To Fully Quote Rule 407 In Finding Subsequent Remedial Measure Evidence Admissible

In United States v. Shanrie Co., 2008 WL 161467 (S.D. Ill. 2008), the United States brought an action to enforce the Fair Housing Act, claiming that the defendants failed to design and construct Applegate Apartments in Swansea, Illinois so as to be accessible to persons with disabilities.  In order to help prove its case, the government sought to introduce evidence of subsequent remedial measures taken by the defendants to make the apartments more handicapped accessible to prove that such measures were feasible. Id. at *1.  The defendants responded by making a pretrial motion in limine to exclude this evidence pursuant to Federal Rule of Evidence 407. 

The District Court for the Southern District of Illinois noted that the government contended that while Rule 407 "prohibits evidence of subsequent measures when used to prove 'negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction' the rule 'does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ... feasibility of precautionary measures.'” Id.  The court noted that the government further contended that the evidence it sought to admit was admissible under Rule 407 "for the purpose of 'showing that the defendants can feasibly and promptly make Applegate Apartments accessible.'" Id.  The court agreed with the government and thus denied the defendant's motion in limine.

There's a huge problem, however, with the court's decision.  The problem becomes clear when language of Rule 407 is listed in its entirety.  Under Rule 407, "[w]hen, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment." (emphasis added).  As is clear from this language, evidence of subsequent remedial measures is only admissible to prove feasibility if the opposing party has claimed that such a measure was not feasible.  Furthermore, it appears that the 7th Circuit has taken the "narrow" view of feasibility and determined that a party only controverts feasibility when he claims that a remedial measure was economically or technologically impossible. See Lolie v. Ohio Brass Co., 505 F.2d 741, 745 (7th Cir. 1974).

Now, I don't have access to the defendants' brief, so perhaps they did claim that it was impossible to make the apartments accessible, triggering the feasibility portion of Rule 407.  That said, it is clear that the court did not mention such an argument in its opinion, and its partial citation of Rule 407 makes it appear as if feasibility does not need to be controverted to be proven under RUle 407.

-CM   

Keystone Case: Pennsylvania Court Finds Evidence of Lesbian Relationship Inadmissible Under Rape Shield Law

Last April, Preston C. Gaddis was charged with rape, sexual assault, and indecent assault after police said he threw a 19 year-old woman onto the floor and raped her in his Pennsylvania home, despite her pleas that he stop.  Last week, Gaddis tried to introduce evidence of the alleged victim's relationship with another woman to prove several elements of his defense.  Specifically, he argued, inter alia, that the alleged victim was uncertain about her sexual preference and was using intercourse with him as an attempt to determine whether she was homosexual or heterosexual.  He claimed that when the experience did not turn out the way that she expected, she leveled the charges of rape against him despite the sex being consensual.  The prosecution opposed the introduction of this evidence, claiming that it was inadmissible under Pennsylvania's version of the Rape Shield Law, which generally prohibits the introduction of past sexual behavior by alleged victims based upon fears that jurors will judge them promiscuous or 'asking for it'.

This week, the court agreed with the prosecution, finding that the evidence of the alleged victim's previous relationship with another woman was inadmissible.  What this case thus seems to reveal is that even though Pennsylvania's Rape Shield Law is worded differently than Federal Rule of Evidence 412, they have the same scope.  Federal Rule of Evidence 412 states that in any civil or criminal proceeding alleging sexual misconduct, two type of evidence are admissible unless exceptions apply:

     (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior, and

     (2) Evidence offered to prove any alleged victim's sexual predisposition.

As noted in the Advisory Committee's Notes, evidence of other sexual behavior includes physical contact such as sexual intercourse, and activities of the mind, such as fantasies or dreams.  Evidence of sexual predisposition includes "the alleged victim's mode of dress, speech, or life-style."

Pennsylvania has not adopted a counterpart to Rule 412, but under 18 Pa.C.S.A. Section 3104, "[e]vidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence."   

If the use of "sexual conduct" in the Pennsylvania were merely equated with the use of "sexual behavior" in Rule 412, evidence of an alleged victim's sexual preference would likely not be excluded under 18 Pa.C.S.A. Section 3104 because it is "life-style" evidence covered under the "sexual predisposition" heading in Rule 412.  The Gaddis case, however, indicates that such lifestyle evidence is presumably included under 18 Pa.C.S.A. Section 3104, making it functionally equivalent to Rule 412 in that regard.

-CM

Blind Faith: Tennessee Court Finds Proseuction Failed To Prove Witness Unavailability Through Reliance On Mother's Promise

The Court of Criminal Appeals of Tennessee's recent opinion in State v. Brown, 2008 WL 141128 (Tenn.Crim.App. 2008), provides an interesting discussion of what it takes to prove declarant unavailability under Federal Rule of Evidence 804 and state counterparts such as Tennessee Rule of Evidence 804.  Tommy Brown, Jr. was indicted on counts of aggravated rape with a weapon and aggravated kidnapping.  At a preliminary hearing, the alleged victim, David Clark, testified that he was attacked at knife-point and raped by the defendant on May 7, 2006. 

The defendant thereafter waived his right to a jury trial, and a bench trial was set for August 29, 2006.  On August 1, 2006, the prosecution informed the court that it had issued a subpoena to compel Clark's attendance at trial.  Clark thereafter did not appear at trial, and the prosecution moved for a continuance until September 8, 2006 on the ground that Clark had moved to Missouri to live with his mother.  At the subsequent hearing on September 8, the prosecution said that it had spoken to Clark's mother, who told the state that her son was enrolled in school in Missouri and undergoing counseling.  The prosecution also claimed that Clark's mother promised them that her son would appear at trial. 

The court then re-scheduled trial for October 30, 2006 and informed the prosecution that it would dismiss the case if Clark failed to appear.  The prosecution responded, "If it please the Court, we will also go through the Interstate Act to make sure that he is properly served in the state of Missouri.  But we'll -- we will dismiss if he's not here on October 30."  On October 30, however, Clark did not appear, and the prosecution admitted that it did not issue an out-of-state subpoena to Clark in Missouri, instead relying on his mother's promise that he would appear at trial. 

Nonethless, the prosecution attempted to prove that Clark was "unavailable" pursuant to Tennessee Rule of Evidence 804(a)(5) because he was absent at trial, and the prosecution was unable to procure his "attendance by process."  Assuming that it could thus establish his unavailability, it sought to introduce his preliminary hearing testimony under Tennessee Rule of Evidence 804(b)(1) as former testimony.  The trial court, however, found that the prosecution had failed to prove that Clark was "unavailable," leading the prosecution to appeal to the Court of Criminal Appeals of Tennessee.

That court found that the proponent of the evidence under Tennessee Rule of Evidence 804(a)(5) bears the burden of proving that it made a "good faith" effort to obtain the declarant's presence at trial; a good faith effort means a "reasonable" effort.  The court then found that issuing a subpoena to Clark in Tennessee but thereafter not issuing a subpoena to him in Missouri and simply relying on his mother's promise that he would attend was not a "good faith" effort, rendering his former testimony inadmissible.  This seems to me to be a fair conclusion, especially in light of the fact that the prosecution failed to live up to its promises made at the October 30the hearing.

-CM

Do The Right Thing: Court Finds Detective Pressure Constitutes An Improper Outside Influence Under Rule 606(b)

The Court of Appeals of North Carolina's recent opinion in State v. Lewis, 2008 WL 131223 (N.C. App. 2008), contains an application of Rule 606(b) that I have never before seen.  In Lewis, the defendant Paul Brantley Lewis, was convicted of first-degree sexual offense, robbery with a dangerous weapon, and felony breaking and entering.  Among the jurors hearing his case was Deputy Eddie Hughes of the Avery County Sheriff's Department.  Deputy Hughes actually knew Lewis through his work at Avery County Jail, where he twice transported him to Central Prison.  While Hughes transported Lewis to Central Prison, Lewis disclosed to him that he had failed a polygraph test.  However, despite Hughes admitting these facts during voir dire, Lewis' attorney did not use a peremptory challenge to remove Hughes.

After trial, defense counsel learned that during a break in Lewis' trial, Deputy Hughes went to the Sheriff's Department, where a detective said to him, "[I]f we have...a deputy sheriff for a juror, he would do the right thing.  You know he flunked a polygraph test, right?"  Hughes indicated that he failed to disclose this fact to the court because he already knew that the defendant failed his polygraph test.  Nonetheless, defense counsel moved for a new trial on the ground that Lewis had been unfairly prejudiced by this inappropriate communication.

On appeal, the Court of Appeals of North Carolina indicated that the issue of whether Hughes could testify about this conversation to disturb the trial court's verdict was governed by North Carolina Rule of Evidence 606(b).  Rule 606(b) states that "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes."

The court first noted that the communication between Hughes and the detective did not constitute extraneous prejudicial information because Hughes already knew about the failed polygraph test and communicated this knowledge to the court.  The court did, however, find that the detective's statement about "do[ing] the right thing" constituted an improper outside influence because it clearly evinced an intent on the detective's part to try to influence Hughes into finding the defendant guilty.  The court then determined that the statement was sufficiently prejudicial to entitle the defendant to a new trial. 

While this is a unique application of the rule, I think that it is fundamentally similar to cases finding that threats by relatives of a defendant or victim to jurors constitute improper outside influences, allowing testimony concerning such threats to be admissible under Rule 606(b). 

Hotel Colorado: Court Finds That Proving Unclean Hands Is A Permissible Use Under Rule 408

In Kimpton Hotel & Restaurant Group, LLC v. Monaco, Inc., 2008 WL 140488 (D. Colo. 2008), the plaintiff sued the defendant for trademark infringement, unfair competition, and unjust enrichment based upon the defendant's use of the name "Monaco Inn," which the plaintiff allegedly had trademarked.  Meanwhile, the defendant filed petitions for trademark cancellation for all of the plaintiff's registered trademarks with the United States Patent and Trademark Office. Id.  All of this led to the plaintiff bringing a declaratory judgment against the defendant, during which the plaintiff submitted certain statements made by the defendant during pre-suit settlement negotiations. Id.  The defendant moved to strike these statements pursuant to Federal Rule of Evidence 408(a), which 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.   

As I've noted before, however, these three illsutrative examples are non-exhaustive, and courts typically find that such settlement/compromise evidence is admissible for any purpose not specifically listed in Federal Rule of Evidence 408(a).  Thus, in the recent case, Rhoades v. Avon Products, Inc., 2007 WL 2983757 (9th Cir. 2007), the Ninth Circuit found that a settlement letter was admissible to prove the reasonable apprehension necessary to bring a declaratory judgment action.  In Kimpton, the District Court of the District of Colorado relied upon this same reasoning in finding the defendant's statements made during pre-suit settlement negotiations to be admissible. 

The district court, however, also relied upon an alternate explanation I haven't seen used before in Rule 408 jurisprudence.  Specially, the court found that the defendant's statements made during pre-suit settlement negotiations were admissible to prove unclean hands.  A quick Westlaw search reveals that the District Court for the Central District of California actually used this same rationale in its opinion last November in Cyr v. Reliance Standard Life Ins. Co., 2007 WL 4246049 (C.D. Cal. 2007), but it does not appear that any courts had previously found proving unclean hands to be a permitted purpose under Rule 408.

-CM 

He Deserves A Break Today: Alton Logan's Conviction Called Into Question After Secret Affidavit Is Revealed

In 1982, now 54 year-old Alton Logan was arrested for the murder of a security guard at a McDonald's in a robbery gone wrong.  Witnesses identified Logan along with Edgar Hope as the two perpetrators of the crime.  A few days later, however, while police were hunting down brothers Andrew and Jackie Wilson for an unrelated murder of two officers, a raid on Andrew's suspected hiding place unearthed a shotgun that tested positive as the gun used in the McDonald's shooting.  However, because there were allegedly only two perpetrators in the McDonald's robbery/shooting, and because the police already had two suspects in custody, charges were never filed against Andrew Wilson in that case.

When Andrew Wilson died last November, public defenders Dale Coventry and Jamie Kunz, who represented Wilson, came forward with a shocking revelation.  They claimed that back in the early '80s, Hope told them that Logan had nothing to do with the McDonald's shooting and that Wilson was the shooter, which led them to confront Wilson, who admitted that he, not Logan, was the trigger man in that shooting.  Wilson agreed to allow Coventry and Kunz to prepare a notarized affidavit of his confession, which he signed and indicated could only be revealed after his death.  The public defenders abided by Wilson's words pursuant to the attorney-client privilege, with the affidavit sitting in a metal box in Coventry's office ever since.  That box was finally opened after Wilson's death, and Assistant Cook County Public Defender Harold Winston, who is currently representing Logan, has moved for a new trial based upon the affidavit.

This new evidence sets the stage for what could be a legal battle over the admission of the secret in court.  The admissibility of Wilson's affidavit will be governed by Federal Rule of Evidence 804(b)(3), which Illinois courts have found is applicable in Illinois cases. See, e.g., People v. Tenney, 793 N.E.2d 571, 587 (Ill. 2002).  Rule 804(b)(3), indicates that when a declarant is unavailable, his prior statements can still be admissible as "statements against interest," an exception to the rule against hearsay.  Under Rule 804(b)(3), a statement against interest is "[a] statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true." 

At the same time, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."  Obviously, Wilson's affidavit was a statement which tended to expose him to criminal liability for the McDonald's robbery/murder, so its admissibility will depend on whether the "corroborating circumstances clearly indicate the trustworthiness of the statement."  As the Supreme Court of Illinois has noted, "'[i]n determining whether the declarant's statement has been sufficiently corroborated to merit admission in evidence, the judge should not be stringent. * * * If the issue of sufficiency of * * * corroboration is close, the judge should favor admitting the statement.'" Tenney, 793 N.E.2d at 587 (quoting Commonwealth v. Drew, 489 N.E.2d 1233, 1241 n.10 (Mass. 1986)).

Thus, it seems to me that the evidence linking the shotgun found at Wilson's alleged hiding place to the McDonald's robbery/shooting and Hope's statement that Wilson and not Logan was the shooter would constitute sufficient corroborating circumstances to allow for the admission of the affidavit into evidence.

In many ways, then, this case is similar to the case of Lee Wayne Hunt, about whom I have previously blogged.  Furthermore, as I noted in that case, even if Wilson's confession is deemed not technically admissible under the rules of evidence, Wilson would have a great argument under the authority of Chambers v. Mississippi, 410 U.S. 284 (1973). 

(My essay, Ordeal by Innocence, which addresses the Alton Logan case and why there should be a wrongful incarceration/execution exception to attorney client confidentiality can be downloaded witha free SSRN subscription [SSRN link].  My other posts on the Alton Logan case can be found here, here, here, and here). 

-CM

Static Cling?: Seventh Circuit Doubts Reliability of STATIC-99 Results In Recent Opinion

The STATIC-99 is an actuarial risk prediction instrument designed to estimate the probability of sexual and violent reconviction for adult males who have already been charged with or convicted of at least one sexual offense against a child or a non-consenting adult.  An expert uses STATIC-99 to match a sex offender's characteristics to characteristics found in studies of convicted sex offenders to determine their likely recidivism rate. 

The Seventh Circuit was recently presented with STATIC-99 evidence in the case, United States v. McIlrath, 2008 WL 90084 (7th Cir. 2008). 31-year old  Christopher McIlrath was on an internet chat room and thought he was chatting with a 15 year-old girl.  He wrote her that he would travel to her state to have sex with her, but the "girl" was actually a detective conducting a sting, and he arrested McIrath upon his arrival.  McIlrath thereafter pleaded guilty to traveling across state lines to have sex with a minor and was sentenced to 46 months imprisonment.  This sentence came after the trial judge discounted forensic psychologist Eric Ostrov's use of STATIC-99 to determine that McIlrath's characteristics matched the characteristics of offenders 9 to 13 percent of whom were found to have repeated their offense.

McIrath subsequently appealed this sentence, claiming that he should have been sentenced just to home confinement.  The Seventh Circuit rejected his argument, first noting that the rules of evidence do not apply to sentencing hearings, meaning that it did not need to address whether STATIC-results are admissible.  The court also noted in passing that in several cases, such as In re Commitment of SImons, 821 N.E.2d 1184, 1192 (Ill. 2004), courts have found STATIC-99 results to be reliable enough to be admissible as expert evidence.  The Seventh CIrcuit, however, found that there are a plethora of problems with STATIC-99:

     -even its advocates only claim that it has "moderate predictive accuracy;"

     -estimates of recidivism are bound to be too low when one is dealing with underreported crimes such as sex offenses; and

     -STATIC-99 has too limited a number of potentially relevant characteristics.

The Seventh Circuit then found that McIlrath had not addressed these criticisms and held that "without any effort by the defendant's lawyer to establish the reliability of Dr. Ostrov's methodology -- or even to explain it -- the judge was entitled to discount his prediction."  Now, as noted, this was not a decision that addressed the admissibility of STATIC-99 results, and maybe McIrath's lawyer simply dropped the ball.  But it certainly seems like the Seventh Circuit was holding that STATIC-99 results are too unreliable to be admissible as expert evidence, and it should be interesting to see how courts in future cases deal with this evidence.

-CM   

Never Get Involved In A Land War In Utah: Utah Judge to Establish Boundaries On Utah Lake

In 1997, a landowner began to dredge a section of the Utah Lake, sparking action by state officials and leading to a legal battle which is finally coming to a head.  This battle, however, involves not only private landowners and the state; environmental groups subsequently joined the fray and contended that the Utah Lake's shore's wetlands are host to wildlife, including more than 40,000 migratory birds.  All of this has led to a case being heard in the United States District Court for the District of Utah, where Judge Dale Kimball will establish the property boundaries along the shores of the lake.  Judge Kimball has assigned a special master, BYU Law Professor Michael Goldsmith, who will hold a series of hearings and submit a report of proposed boundaries, which the judge is expected to adopt.

As part of their case, families who have farmed the land for generations submitted affidavits recalling uncontested use of the land from personal observation and knowledge from their ancestors.  The state has objected to these "anecdotal stories" of ancestors as hearsay and inadmissible in court.  Goldsmith seemed preliminarily to agree with the state, noting that any evidence of land use must be documented or come from personal knowledge.  Goldsmith noted that "[f]amily lore is not going to cut it as admissible evidence." 

Professor Goldsmith may very well be right, but the first thing that jumped to my mind upon hearing about this case was Rule 803(20).  Utah Rule of Evidence 803(20), like its federal counterpart, indicates in relevant part that "[r]eputation in a community arising before the controversy, as to boundaries of or customs affecting lands in the community" is admissible as an exception to the rule against hearsay.  Now, what exactly does this rule mean?  I must admit that I do not know as it is one of the more obscure hearsay exceptions on the books.  A quick Westlaw search reveals that the federal version has only been cited 12 times, and a quick glance at those cases reveals that in many of those cases it was simply cited in passing. See, e.g., Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, 568 (D. Md. 2007).  Meanwhile, courts have cited state counterparts of this rule in only 34 cases.

A look at how some courts have applied their versions of Rule 803(20) reveals that there may be some merit to the argument that the family members' affidavits should be admissible.  For instance, in Wells v. Sanor, 151 S.W.3d 819 (Ky.App. 2004), Nevard Wells claimed that he had the right to exclusive use of a bridge, and the Sanor family, which had purchased property from the heirs of George Delong, claimed that they had an easement over the bridge.  The court found that testimony from George Delong's sons about his statements concerning the creation of the bridge were admissible pursuant to Kentucky Rule of Evidence 803(20). See id. at 824 n.3.

Conversely, in Roberts v. Allison, 836 S.W.2d 185 (Tex.App.-Tyler 1992), the court refused to allow a party to testify concerning an alleged oral agreement between his grandfather and the appellee's predecessor in title, which allegedly gave the former an easement.  The court found that this testimony was inadmissible under Texas Rule of Evidence 803(20) because the "proposed testimony pertain[ed] to an individual family's assertion of an easement; there [wa]s no contention of the community's interest in or the community's knowledge of the Roberts family's claim to access Appellee's property." Id. at 191.   

I only found one case where Utah has applied its version of Rule 803(20) -- Clair W. and Gladys Judd Family Ltd. Partnership v. Hutchings, 797 P.2d 1088 (Utah 1990).  In Hutchings, a plaintiff/property owner brought an action, inter alia, to relocate a fence line, giving him more property and reducing the property of his neighbor, the defendant. See id.  The trial court refused to allow the plaintiff to introduce into evidence statements allegedly made by a former owner of the defendant's property that he did not think that the fence line was on the true boundary between the two parties. Id. at 1090.  The Supreme Court of Utah affirmed this ruling, finding that the statements were not admissible under Rule 803(20) because the "plaintiff's proffered testimony did not consist of reputation in the community as to a boundary. The statements were simply the subjective opinion of a former owner." Id. at 1091.

The ruling in Hutchings thus seems more in line with the ruling in Allison than the ruling in Sanor, making it possible that the affidavits in the Utah Lake case should be considered inadmissible hearsay.  That said, the proferred testimony in Hutchings and Allison was solely the testimony of one prior landowner.  While it is difficult to say exactly what was in the affidavits without seeing them, it appears to me that they consist of several people discussing alleged historical, uncontested land use across generations.  This seems more like testimony that should be admissible under Rule 803(20), but it is difficult to draw any conclusions without seeing the affidavits and more research into Rule 803(20).

-CM