EvidenceProf Blog

The Third Man: Maryland Court Of Appeals Find Government Attorneys Are Servants Of A Party Opponent For The Purposes Of The Admissions Rule

The Maryland Court of Appeals' recent opinion in Bellamy v. State, 2008 WL 382938 (Md. 2008), is a case with two interesting evidentiary rulings.  In Bellamy, Joseph Nathan Bellamy was convicted of first degree murder and use of a handgun in the commission of a crime of violence in connection with the shooting death of Jermaine "Jay" Carter.  The prosecution's theory of the case was that Bellamy shot Carter twice, once in the back of the head and once in the right shoulder, near a Gaithersburg elementary school in July 2003.  Among the evidence presented at Bellamy's trial was (1) a witness' testimony that on the night of the murder, Bellamy, Calvin "Southside" Welch, and Andre Saunders accompanied Carter to a park behind the school, and (2) a witness' testimony that on the night of the murder, she saw Bellamy, Welch and Saunders running from the park to Welch's apartment after hearing two gunshots.

Bellamy's defense counsel argued at his trial that it was Welch, not Bellamy, who murdered Carter, and they called Welch and Saunders as witnesses. Both Welch and Saunders, invoked the Fifth Amendment privilege against self-incrimination.  Bellamy, however, attempted, inter alia, to get into evidence the state's factual proffer from Saunders' plea hearing.  You see, before Bellamy's trial, the state reached a plea agreement with Saunders under which he pleaded guilty to being an accessory after the fact to the murder.  During the plea hearing, the state proffered facts, based upon Saunders' statements to authorities.  The proffered facts which Bellamy sought to introduce were the facts that Bellamy initiated the physical attack on Clark, assaulted Clark, and then physically restrained Clark so that Welch could attack him, but that it was Welch who shot Clark while Bellamy was restraining him.

The state objected that this proffer constituted inadmissible hearsay, and the trial judge agreed and ruled it inadmissible.  On appeal, the first interesting question addressed by the Maryland Court of Appeals was whether the state's proffer constituted an admission by a party opponent under Maryland Rule of Evidence 5-803(a)(2).  Under this rule, a statement that is offered against a party and which is a statement of which the party has manifested an adoption or belief in its truth is not excluded by the hearsay rule.  Defense counsel's argument was that the State manifested its “adoption or belief in ... [the] truth” of Saunders's statement when, inter alia, the Assistant State's Attorney stated at the plea hearing, “And it is our belief, based on our investigation and review of everything, is that he's been truthful."

In answering this question, the court had to resolve a question that has sharply divided state and federal courts across the country:  In a criminal prosecution, are  government attorneys considered servants of a party-opponent for the purposes of the admissions rule?  The Maryland Court of Appeals came to the conclusion that they are, rejecting the arguments that government attorneys cannot manifest a belief in a defendant's statement and are traditionally unable to bind the sovereign.  Instead, the court found that   

     -the Assistant State's Attorney unequivocally manifested an adoption of or belief in Saunders' statement when he said, “And it is our belief, based on our investigation and review of everything, is that he's been truthful;"

     -the prosecutors acted as authorized agents of the State of Maryland at Saunders' plea hearing because the judge presiding at Saunders's plea hearing accepted the representations made by the prosecutors as a sufficient substantive basis for Saunders' plea; and

     -there are many opportunities for a prosecutor to bind the government in the course of a criminal trial.

I think that all of these arguments hold water, and I thus fall in line with those courts holding that government attorneys in criminal prosecutions are servants of a party-opponent for the purposes of the admissions rule.

However, once the court decided that the factual proffer should have been admissible, it still had to determine whether its exclusion constituted harmless error, precluding reversal.  And the court did find that this was a case of harmless error because Saunders's statement indicated that Bellamy initiated the physical attack on Carter, assaulted Carter, and then physically restrained Carter so that Welch also could attack.  According to the court, that evidence, on its own, would be sufficient for a reasonable jury to convict Bellamy of aiding and abetting Carter's murder.

To me, this decision makes no sense.  The prosecution's theory of the case was that Bellamy shot and killed Careter.  Saunders' statements directly contradicted the prosecution's theory because he claimed that Welch was the shooter.  It also directly supported Bellamy's theory of the case, which, again, was that Welch was the shooter.  Now, it's true that if the jury believed the entirety of Saunders' testimony, it still could have convicted Bellamy based upon his aiding and abetting.  But it's just as true that the jury could have believed that Welch was the shooter but disbelieved that Bellamy aided in the shooting.  Or maybe the simple fact that Saunders' testimony directly contradicted the prosecution's theory of the case would have led the jury to disbelieve the prosecution's case in general.  Based upon the court's ruling, however, no jury will get that chance.

-CM

Me Too: Supreme Court Reverses Tenth Circuit Ruling In Sprint Age Discrimination Case

In Sprint/United Management Co. v. Mendelsohn, 2008 WL 495370 (U.S. 2008), the United States Supreme Court concluded that "[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules."  Ellen Mendelsohn worked in the Business Development Strategy Group for Sprint from 1989 through 2002, when Sprint terminated her as a part of an ongoing company-wide reduction on force.  Mendelsohn subsequently sued Sprint in the District Court for the District of Kansas under the Age Discrimination in Employment Act of 1967 (ADEA), claiming that she was fired based on her age.  As support for her claim, Mendelsohn sought to introduce testimony by five other former Sprint employees who claimed that their supervisors had discriminated against them because of age, but none of these other employees worked in the Business Development Strategy Group with Mendelsohn, nor had any of them worked under the supervisors in her chain of command.

Sprint thereafter brought a motion in limine to exclude this "me too" testimony on the ground that it was irrelevant under Federal Rule of Evidence 401 because the only relevant testimony could come from employees who were “similarly situated” to Mendelsohn in that they had the same supervisors.  It also argued that even if this testimony had probative value, that value was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading of the jury, and undue delay, making it inadmissible under Federal Rule of Evidence 403.  In a minute order that did not explain its ruling in great detail, the district court granted the motion in limine.  On Mendelsohn's appeal, the Tenth Circuit treated the minute order as the application of a per se rule that evidence from employees with other supervisors is irrelevant to proving discrimination in an ADEA case.  The Tenth Circuit then disagreed with this alleged conclusion, engaged its own weighing of the testimony's relevance and prejudice, determined that the testimony was admissible, and thus reversed and remanded for a new trial.

The Supreme Court subsequently granted certorari, and on Tuesday, it determined in a unanimous opinion that the Court of Appeals erred in conducting its own weighing of the testimony's relevance and prejudice after concluding that the District Court applied a per se rule.  The Supreme Court found that, had the district court applied a per se rule excluding the evidence, the Court of Appeals would have been correct to conclude that it had abused its discretion because "[r]elevance and prejudice under Rules 401 and 403 are determined in the context of the facts and arguments in a particular case, and thus are generally not amenable to broad per se rules."  According to the Supreme Court, however, even if this were the case, the Tenth Circuit should merely have remanded the case because questions of relevance and prejudice are for the district court to determine in the first instance because it is virtually always is in the better position to assess the admissibility of the evidence in the context of the particular case before it. The Supreme Court, however, concluded that there was no evidence that the district court applied a per se rule, but because the basis for the district court's opinion was unclear, it remanded the case with instructions to have the district court clarify the basis for its evidentiary ruling.

In the wake of the ruling, a number of articles boasted headlines such as "Ruling May Aid Those Charging Age Bias" and "Court ruling helps ex-employee."  In actuality, however, on the one hand, the Supreme Court actually struck down the Tenth Circuit opinion deeming Mendelsohn's "me too" testimony admissible, harming her cause and the cause of those charging age bias.  On the other hand, the Court's ruling said nothing specifically about "me too" testimony except for that, as with most testimony, its relevance/prejudice cannot be decided on a per se basis.

-CM

My Daddy Was A Bankrobber: Seventh Circuit Makes Several Interesting Evidentiary Rulings in Chicago Bankrobber Case

The Seventh Circuit's recent opinion in United States v. Price, 2008 WL 426463 (7th Cir. 2008), is the rare case where a court has found a business record to be inadmissible under Federal Rule of Evidence 803(6) because it was insufficiently trustworthy.  In Price, inter alia, Cornelius Price appealed his conviction for robbing a Chicago bank and carrying a firearm during the robbery.  Price was actually allegedly involved in 2 Chicago bank robberies:

     -(1) the October 2, 2002 robbery of a Federal Savings Bank on Western Avenue; and

     -(2) the March 11, 2003 robbery of a Bank Chicago on South Torrence Avenue.

The 2002 heist was allegedly completed by Price, Cleve "Hollywood" Jackson, and brothers Eddie and Michael Hill.  The robbery was apparently completed just as the bank was opening, with Price, wearing a black stocking mask and gloves, approaching the assistant branch manager with a gun as he opened the bank, getting him to disable the alarm and open the safe, and having him fill a laundry bag with money.  According to evidence presented in the case, "[i]n the two days after the heist, with the cash apparently burning a hole in their pockets, all four men purchased rather pricey used cars. Eddie Hill bought a Jaguar, Michael Hill bought a Lincoln Navigator, Jackson bought a Lincoln Navigator in the name of his more credit-worthy uncle (John V. Brown), and Price bought a Ford Expedition." 

The 2003 robbery was apparently completed solely by Price.  Again, as the bank was opening, Price, wearing a ski mask and gloves, approached a teller with a gun as she opened the bank, got her to disable the alarm and open the safe, and had her fill a laundry bag with money.  This time, however, the police caught Price in a foot chase soon after the robbery and found a gun and car keys with an attached keyless entry remote.  According to the Seventh Circuit, "With the remote, using the kind of police work that would make McNulty and 'The Bunk' of The Wire proud, the officers walked around, continually pressing the 'unlock' button around cars parked in the vicinity of the bank. Eventually, the remote found its mate: a 1997 black Ford Expedition, the one purchased by Price a day after the October 2002 robbery. The police also recovered the take from the the bank-$31,983."

While in custody, Price admitted that he owned the Ford Expedition and that he had committed the robbery of the Bank Chicago; however, he maintained that it was his first and only heist.  Subsequently, in 2005, Price said he would “cooperate” with the FBI by providing details about the October 2002 robbery (including the names of those involved).

In his appeal, Price raised three arguments:

     -(1) the trial court improperly precluded him from introducing his statement of prior innocence to police in 2003 under Federal Rule of Evidence 106 when the prosecution introduced his "cooperation" statement from 2005;

     -(2) the trial court improperly allowed the prosecution to present evidence relating to the 2002 robbery as evidence of modus operandi under Federal Rule of Evidence 404(b); and

     -(3) the prosecution improperly proved that Eddie Hill purchased a Jaguar two days after the 2002 robbery through records that didn't qualify for admission under Federal Rule of Evidence 803(6).

The easiest argument for the court to address was the first one.  Under  Federal Rule of Evidence 106, the rule of completeness, "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."  The Seventh Circuit rejected Price's argument and "agree[d] with the district judge that Price's March 2003 statement was not necessary to explain the admission he made nearly two years later." 

The second argument was more difficult.  The court noted that there were some differences between the two robberies, such as the fact that the first was allegedly committed by four people and the second was allegedly committed solely by Price, making it difficult to argue that Price had a modus operandi or common plan or scheme that was provable pursuant to Federal Rule of Evidence 404(b).  At the same time, the court found that the general way in which the banks were robbed and their proximity (they were 5.4 miles apart) allowed for the admission of evidence about the prior bank robbery under Federal Rule of Evidence 404(b).  I'm not sure that I agree with the court on this point.  While the two robberies appear somewhat similar, I simply don't see how a crime committed by four people and a crime committed by one person can be considered part of a common plan or scheme.

The third argument was the only one accepted by the court.  Eddie Hill allegedly purchased his Jaguar from the American Car Exchange (ACE), and the prosecution introduced into evidence an ACE purchase order with Eddie Hill's name to prove the purchase.  Price, however, introduced evidence that at the request of the buyer, ACE employees "would inaccurately designate on the purchase order someone who had accompanied the buyer to the store as the 'purchaser' of the vehicle. Second, the employee sometimes underreported the vehicle's purchase price and the purchaser's down payment."  The trial court admitted the purchase order under Federal Rule of Evidence 803(6), which states, inter alia,  that records kept in the course of regularly conducted business activity are admissible if certain conditions are "shown by the testimony of the custodian or other qualified witness...unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."

The Seventh Circuit, however, found that Price's evidence showed that the method or circumstances of preparation of the ACE purchase orders indicated lack of trustworthiness and thus found that the trial court erred in admitting the purchase order.  The court, however, found that this was a harmless error because there was significant other evidence of Price's guilt. 

-CM

The Moment Of Truth: New Mexcio Is The Only State That Finds Polygraph Results Presumptively Admissible

Justin Black's murder trial for his alleged strangulation of Deanna L. Crawford is the latest trial to end in a mistrial after a prosecution witness made reference to a polygraph examination taken by the defendant.  This was going to lead me to write that all states have deemed polygraph results inadmissible unless both parties agree before the test that the results will be admissible at trial, but I wanted to make sure that such a statement was accurate.  It turns out that it is not because New Mexico does allow for the admission of polygraph results.

In 1973, the Supreme Court of New Mexico found in State v. Dorsey, 539 P.2d 204 (N.M. 1975), that polygraph results are admissible as long as (1) the polygraph operator is competent, (2) the procedure used is reliable, and (3) the “tests made on the subject” are valid.  In 1983, New Mexico then codified the admissibility of polygraph results with Rule of Evidence 11-707, which states, inter alia, that

"Subject to the provisions of these rules, the opinion of a polygraph examiner may in the discretion of the trial judge be admitted as evidence as to the truthfulness of any person called as a witness if the examination was performed by a person who is qualified as an expert polygraph examiner pursuant to the provisions of this rule and if;

     -(1)  the polygraph examination was conducted in accordance with the provisions of this rule;

     -(2)  the polygraph examination was quantitatively scored in a manner that is generally accepted as reliable by polygraph experts;

     -(3)  prior to conducting the polygraph examination the polygraph examiner was informed as to the examinees's background, health, education and other relevant information.

     -(4)  at least two (2) relevant questions were asked during the examination; and

     -(5)  at least three (3) charts were taken of the examinee."

Up until the Supreme Court of New Mexico's 2004 decision in Lee v. Martinez, 96 P.3d 291 (N.M. 2004), however, the Court had not yet determined whether polygraph results met the standard for the admissibility laid out in Daubert in 1993 and subsequently incorporated into the New Mexico Rules of Evidence.  As applied in New Mexico, the test asks whether (1) whether the theory or technique “can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) “the known potential rate of error” in using the particular scientific technique “and the existence and maintenance of standards controlling the technique's operation”; and (4) whether the theory or technique has been generally accepted in the particular scientific field." State v. Anderson, 881 P.2d 29, 36 (N.M. 1994).

With regard to (1), the court found that the control question polygraph examination can be tested based upon a National Academy of Sciences Report.  With regard ro (2), the court noted that the NAS report included 102 studies deemed to be of sufficient quality.  With regard to (3), the court noted that "a number of polygraph validation studies have been conducted and subsequently published. A review of those studies revealed that the median accuracy index of the polygraph in laboratory studies is 0.86 with an interquartile range of 0.81 to 0.91.  Finally, with regard to (4), the court found that "[t]he American Polygraph Association (APA), the leading polygraph professional association, has developed protocol standards for the polygraph similar to those contained in Rule 11-707.

Even with the data reported by the Supreme Court of New Mexico, I'm still not quite convinced that polygraph results are reliable enough to be admitted to jurors, who might overvalue those reults.  That said, I would be very interested in studies looking at convcition rates, later reversals basd upon DNA evidence, etc. in New Mexico compared to those rates in other states.  Such data might leave me a skeptic or turn me into a true believer.

-CM 

Contempt: Proposed California Law Would Prohibit Entry Of Contempt Orders Against Non-Testifying Domestic Violence Victims

Under a proposed California state shield law, judges would not be able to hold domsetic violence victims in contempt for refusal to testify against their alleged attackers.  The proposed law mimics an existing California law for sexual assault victims and was prompted by a 2005 San Mateo County case in which a woman was threatened with jail for not cooperating with prosecution of her ex-boyfriend.

Advocates of the law want to prevent domestic assault victims from being re-traumatized by being held in contempt when they are unable to go through with their testimony.  Opponents counter that pulling a victim’s testimony from a domestic violence trial undercuts the ability to prosecute in some cases and will play a role in deciding whether to even file charges.  They also worry that so tying the hands of domestic violence prosecutors might leave accused abusers free to escalate their attacks. 

The advocates counter that a solid case can be won even without a victim's testimony.  They also claim that the bill is not meant to dissuade prosecutions and, in fact, may aid them because if victims fear having to testify or face imprisonment they may be less likely to even come forward and report incidents of domestic violence.

I think that there are good arguments on both sides, and I won't attempt to resolve the disagreements.  I do, however, want to inject a couple of points into the argument.  First, "in California, judges are [currently] only allowed to sentence a victim to up to seventy-two hours of battering counseling or up to seventy-two hours of community service for the first finding of contempt in a domestic violence prosecution." R. Michael Cassidy, Reconsidering Spousal Privileges After Crawford, 33 Am. J. Crim. L. 339, 373 (2006).

Second, as noted in Renee L. Rold, All States Should Adopt Spousal Privilege Exception Statutes, 55 J. M. B. 249, 251 (1999), "[o]ne study of the no-drop policy in the San Diego City Attorney's office found that, between the years of 1988 and 1993, only eight arrest warrants were issued for contempt. In addition, the study found that only two victims were actually jailed overnight out of the 400-500 cases their office prosecutes monthly."

What these two points seem to indicate to me is that the proponents of the California case may be overstating the case that victims are subject to renewed trauma from being held in contempt, but the opponents may be overstating the case that domestic violence prosecutions will be hindered by the new law.  Instead, it appears that in the vast majority of cases, either domestic violence victims in California choose to testify or judges choose not to hold them in contempt.

-CM

Dr. Phil and the Runaway Jury: Court Finds Work Product Privilege Partially Applies To Jury Consulting

Hynix Semiconductor Inc. v. Rambus Inc. is a case in which manufacturers have sued Rambus Inc. on the ground that it monopolized or attempted to monopolize six technology markets.  In the case, Rambus moved to prevent opposing counsel from asking witnesses about any meetings with jury consultants, specifically regarding their meetings with jury consultants to help them prepare to testify at trial. Hynix Semiconductor Inc. v. Rambus Inc., 2008 WL 397350 at *1 (N.D. Cal 2008).

In addressing this motion, the United States District Court for the Northern District of California first noted that Federal Rule of Evidence 611(b) governs the scope of cross-examination and indicates that "[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination."  The court found, however, that Rambus was not challenging the jury consultant line of questioning unde Rule 611(b), but instead was claiming that its probative value would be substantially outweighed by its prejudicial effect, rendering it inadmissible under Federal Rule of Evidence 403.

Rambus raised two sources of unfair prejudice:  that the jury would draw improper conclusions (1) because of a negative connotation about jury consultants propagated by the media and movies like "Runaway Jury," and (2) because referencing jury consultants suggests one side's size or resources.  With regard to (1), the court found that the manufacturers did "not intend to cross-examine a witness regarding jury selection," meaning that "any prejudice from the possibility that a juror has seen a movie such as "Runaway Jury," which dealt with jury selection and jury misconduct, [wa]s too speculative to justify precluding cross-examination regarding preparation."  WIth regard to (2), the court found that the "argument f[ell] flat...because the jurors need only look at the rows upon rows of counsel and trial assistants, shelves of binders, and the admissible evidence regarding market size to know that both sides in this dispute have plenty of money and are willing to spend it."

The court also noted, however, that Rambus raised a second, "better," argument:  "that cross-examination regarding how a witness prepared to testify treads on the attorney-client privilege and work-product protection...."  The court noted that there were some difficult factual questions with regard to application of the attorney-client privilege and thus did not seem to resolve the issue.  With regard to the work product privilege, the court found only one case on point:  In re Cendant Corp. Securities Litigation, 343 F.3d 658 (3rd Cir. 2003).

In Cendant, Ernst & Young, LLP and Cendant Corp. were co-defendants in a class action; the class action was settled, by cross-claims between these two parties remained unresolved.  At a deposition, Cendant's counsel sought to ask a former Ernst & Young Senior Manager whether he met with Dr. Phillip C. McGraw, an expert in trial strategy and deposition preparation (McGraw is now better known as TV's Dr. Phil).  The discovery master determined that "the deponent could be asked whether he met with Dr. McGraw, when they met, for how long, who was present and why they met."  The discovery master, however, did not permit questions about what Dr. McGraw told the deponent, whether they practiced his testimony, and whether the deponent received any documents or notes because these questions would violate the work-product doctrine." 

The district court reversed this order, but the Third Circuit reversed the district court, finding that the discovery master's ruling was "essentially correct."  The Third Circuit first noted that the work product doctrine applied to Dr. Phil's jury consulting because (1) the work-product protection also extends to non-attorneys who assist in preparation of litigation, and (2) the litigation consultant's advice to a witness is an “opinion” that is protected under the work-product doctrine.  Thus, the “frank and open discussions” between Dr. McGraw, counsel, and the witness went “to the core of the work product doctrine” and could only be discovered under extraordinary circumstances.  At the same time, the court concluded that “[w]e believe [the witness] may be asked whether his anticipated testimony was practiced or rehearsed."

The court in Rambus came to the same conclusion, finding that "the parties may ask a witness whether he or she met with a jury consultant, the purpose of any such meeting, who was present, the duration of the meeting and whether the witness practiced or rehearsed his or her testimony. The court will not permit questioning beyond those limited points because inquiring into work-product protected materials creates unfair prejudice and doing so will lead to both confusion and delay."

To me, the balance struck by both the Third Circuit and the District Court for the Northern District of California seems appropriate, allowing for limited questioning about jury consulting while still protecting the work product doctrine.

Hat tip to University of Tennessee College of Law Professor Maurice Stucke.

-CM

Bright Line, Big City: Court Of Appeals Of New York Eschews Bright Line Test For Confrontation Clause Cases

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does 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.  The most difficult question in this analysis is the question of when hearsay is "testimonial," and the Supreme Court's opinion in Crawford did not answer it, instead, setting forth several proposed formulations.

Nonetheless, prior to the Supreme Court's opinion in Davis v. Washington, 547 U.S. 813 (2006),  "[t]he circuits...concluded that the determinative factor common to all the proposed formulations set forth by the Crawford court [wa]s whether the statement was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." Guilbeau v. Cain, 2007 WL 2478888 at *10 (W.D. La. 2007).  In Davis, the Supreme Court ushered in no new law, but it seemed to emphasize that "context matters for Confrontation Clause purposes." See People v. Rawlins, 2008 WL 423397 (N.Y. 2008).  In the wake of Davis, some courts have continued to apply a bright line test under which statements are "testimonial" whenever they are made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial. See id.  Other courts, however, have eschewed this approach in the wake of Davis in favor of a more fact sensitive inquiry. See id.

One such court is the Court of Appeals of New York (the equivalent of most states' supreme courts), based upon its opinion in People v. Rawlins, 2008 WL 423397 (N.Y. 2008).  Rawlins involved convicted defendants claiming that the judges in their cases improperly admitted DNA and latent fingerprint comparison reports prepared by nontestifying experts despite the fact that they were "testimonial."  In Rawlins, the court concluded that in Confrontation Clause cases, "facts and context are essential. The question of testimoniality requires consideration of multiple factors, not all of equal import in every case. And while it is impossible to provide an exhaustive list of factors that may enter into the mix, two play an especially important role in this determination: first, whether the statement was prepared in a manner resembling ex parte examination and second, whether the statement accuses defendant of criminal wrongdoing. The purpose of making or generating the statement, and the declarant's motive for doing so, inform these two interrelated touchstones." Id.

The Court of Appeals then indicated that "[i]n the context of scientific tests, such as DNA analysis, many state and federal courts have considered the question presented, and little consensus has emerged." Id.  Based upon its fact-sensitive analysis, however, the court concluded that the DNA and latent fingerprint comparison reports were "testimonial," although it concluded that their admission was harmless beyond a reasonable doubt based upon siginifcant other evidence of each of the defendants' guilt.

I'm generally not a fan of bright line tests, which would usually lead me to approve of the more fact sensitive inquiry adopted by the Court of Appeals of New York.  At the same time, the "inquiry" adopted by the court seems so amorphous that litigants will likely have no idea whether statements will be determined "testimonial" in any particular case.  Meanwile, the bright line test seems to produce somewhat more predictable results, but fails to account for the unique facts of each case.  Which means that what I guess that I'm saying is that current Confrontation Clause analysis is a mess, with courts still struggling to create a workable approach in the wake of Crawford.

-CM   

Open In Case Of My Death, Take 2: Mark D. Jensen Found Guilty of First Degree Murder

I've written before about the Mark D. Jensen trial and how the Supreme Court of Wisconsin took the liberal view of the "forfeiture by wrongdoing" doctrine in allowing for the admission of a note that his wife gave to a neighbor that said that Jensen should be the first suspect if she died.  Now, after about 32 hours of deliberations over three days, jurors found Jensen guilty of murder in the first degree. 

-CM

Unavailable For A Limited Time Only: Court Finds Co-Defendant Status Renders Declarant "Unavailable" Under Rule 804(a)

The Colorado Court of Appeals' recent opinion in People v. Reed, 2008 WL 323773 (Colo.App. 2008), contains an interesting interpretation of Colorado Rule of Evidence 804, Colorado's counterpart to Federal Rule of Evidence 804.  In Reed, three men robbed a bank in Colorado Springs, and Edgar Dewond Reed, Al J. Williams, and Calvin Clark were charged with numerous offenses arising from the robbery; Clark accepted a plea agreement and testified against Reed and Williams, who were tried together. See id. at *1. At trial, over Reed's objection, the trial judge allowed Williams' cellmate, Matthew Graves, to testify about statements that Williams made to him, implicating both Williams and Reed in the robbery. See id. at *1.  The court admitted the testimony on the ground that Williams' statements constituted statements against interest under Colorado Rule of Evidence 804(b)(3). See id. at *1.  It did so even though Williams had not yet exercised his Fifth Amendment right against self-incrimination; indeed, Williams later testified. See id. at *1.

On appeal, the Colorado Court of Appeals noted that for Colorado Rule of Evidence 804(b)(3) to apply, Williams needed to be "unavailable" pursuant to Colorado Rule of Evidence 804(a). See id. at *2.  The court first noted that Williams was not "unavailable" under Colorado Rule of Evidence 804(a)(1), which indicates that a declarant is unavailable if he "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement." See id. at *2.  The court concluded that this portion of the rule did not apply because Williams had not invoked his Fifth Amendment right when Graves testified. See id. at *2.  Indeed, it found that Williams was not "unavailable" pursuant to any of the five situations listed in Colorado Rule of Evidence 804(a). See id. at *2.

The court, however, found that the five situations listed in Colorado Rule of Evidence 804(a) was only a partial list of the situations under which a court can deem a declarant "unavailable," and it concluded "that a declarant's status as a codefendant in a joint trial renders him or her unavailable...." Id. at *3. The court came to this conclusion because "had the trial court required Williams to decide whether he would testify before the People called Graves as a witness, it would have violated Williams's constitutional right to decide whether and when to testify."

The Reed case raises several interesting issues, not the least of which is whether the court was right that a declarant's status as a codefendant in a joint trial renders him or her unavailable...."  The question I want to address, however, is one that I thought would have been resolved, but which I did not find addressed after a Westlaw search:  What happens if a declarant is deemed "unavailable" under Rule 804(a), allowing for the admission of hearsay under one of the Rule 804(b) exceptions, but then the declarant later becomes available?

Clearly, this is what happened in the Williams case.  He was "unavailable" when Graves testified, but Williams then later became available when he testified.  Does this mean that defense counsel could have asked that Graves' testimony be stricken once Williams testified?  Or should Rule 804(a) be a snapshot view of admissibility, where testimony is allowed based upon the declarant's unavailability at the moment, with any changes in availability not changing that ruling?  For instance, let's say that a witness is extremely ill, leading to him being declared "unavailable" under Rule 804(a)(4) and to the admission of his statements against interest.  But that declarant has a quicker than expected recovery or the trial extends longer than expected, and he now testifies at trial.  Should this lead to the prior testimony being stricken?  My gut feeling is that it should, but I was unable to find a discussion of this issue in my Westlaw search or the Reed case.

-CM   

Suicidal Tendencies?: Judge Rules Suicide Notes Inadmissible In David Wade Moore Re-Trial

In 2002, David Wade Moore was convicted in Alabama of capital murder and sentenced to the death penalty in connection with the March 12, 1999 killing of socialite Karen Tipton.  This conviction, however, was overturned after it was learned that the prosecution failed to disclose potentially exculpatory evidence such as an FBI report, leading to his current re-trial. 

Moore originally became a suspect in the murder after telling his uncle, Sparky Moore, on April 8, 1999, that he was in Tipton's house when she was murdered.  Moore relayed this admission to his friend, Assistant District Attorney Wesley Lavender, who called the police.  The next day, police found David at a Ramada Inn and took him in for questioning; David waived his right to remain silent and his right to an attorney.  During initial questioning, David was nonchalant and denied knowing Tipton and her husband; however, once it was diclosed that the police knew about David's admission to his uncle, his demeanor changed and he was visibly shaken.  When police thereafter stepped outside of the interrogation room to determine how to proceed, David stabbed himself with a pen knife, causing serious injuries which needed to be treated at the hospital.

Pursuant to the judge's ruling in the re-trial, however, the prosecution will not be able to refer to this self-stabbing as a suicide attempt because there is no evidence of a guilty conscience by David.  Central to this finding was the judge's conclusion that several suicide notes written by David to his family were inadmissible because the state cannot establish when David wrote them. 

But was this ruling correct?  I'm assuming from the articles written on the case that the import of the judge's ruling on the suicide notes was that the state could not prove whether they were written after Tipton's murder, making them relevant to David's "guilty conscience," or whether they were written before Tipton's murder, making them irrelevant.  But the articles also mention that Assistant Attorney General Corey Maze read a transcript excerpt of Moore's testimony from his trial in 2002 in which he testified that he had written the letters April 8 after talking to his uncle.  If the reporting of this fact is true, I don't see why the judge ruled that the state cannot establish when David wrote the suicide notes.

Like its federal couterpart, Alabama Rule of Evidence 901(a) indicates that "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." It seems clear to me that this liberal authentication standard should have been met by David's own testimony that he wrote the suicide letters on April 8th, but maybe there's something from the case that the articles are not reporting.

-CM

Evidence And Ethics 16: Professor Mosteller's The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure To "Do Justice."

The contribution of Duke University School of Law Professor Robert P. Mosteller to the Evidence and Ethics Sympoisum is his article, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice."  In the article, Professor Mosteller focuses on the infamous Duke lacrosse case, which led to the disbarment of Durham County District Attorney Mike Nifong.  And yet, the focus of the article is not on the actual ethical rulings resulting from the pernicious conduct of Nifong, but instead on the fact that no charge was brought against him for failing to "do justice."  Mosteller notes that the absence of such a charge was because Model Rule 3.8(a) is woefully inadequate and largely unenforceable and thus contends that a better way to protect the innocent from unsubstantiated prosecutions would be to create guidelines that improve accuracy in identification and to turn those guidelines into legally enforceable standards.

In Parts I and II, Mosteller sets out all of the relevant facts of the Duke lacrosse case and lays bare the various and sundry ethical violations committed by Nifong, including (1) violations based upon improper pretrial publicity and (2) violations based upon the failure to disclose exculpatory DNA evidence.

In Part III, however, Mosteller notes that while a fundamental ethical duty of prosecutors is to "do justice," no charges were brought against Mosteller based upon Rule 3.8(a) of the North Carolina Revised Rules of Professional Conduct (taken directly from Model Rule 3.8(a)), which states that “[t]he prosecutor in a criminal case [shall] . . . refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”  He contends that despite Nifong violating the "do justice" precept in "the most fundamental way," it is far from clear that Nifong violated Rule 3.8(a) because, inter alia, (1) the Rule requires only that the prosecution be supported by probable cause, (2) the Rule sets a very high standard on the mental element, imposing a duty to refrain from prosecuting only when the prosecutor “knows” that probable cause is lacking, and (3) the Rule imposes no duty of thorough inquiry into the facts and no responsibility of independent investigation. 

Because Mosteller finds Rule 3.8(a) to be toothless and thus largely worthless in protecting the innocent from unsubstantiated prosecutions, in Part IV, he turns to an alternate solution:  changing the way we allow police to conduct identifications.  Mosteller notes that current due process doctrine affords  extremely weak protection to criminal accuseds because it merely prevents police from being suggestive during the identification process.  Mosteller notes, however, that while suggestiveness was a problem in the "all suspects" photograph identification procedure used in the Duke lacrosse case, the larger problem was unreliability.  Mosteller then looks at how the innocence movement began changing the focus from suggestiveness to a focus "on misidentifications and on accuracy in identification procedures." 

This movement has led to researchers generally "settling on six recommendations: (1) only one suspect should be in each lineup or photo array; (2) the suspect should not “stand out”; (3) the witness should be cautioned that the perpetrator might not be in the lineup or array; (4) those in the lineup or array should be displayed sequentially rather than simultaneously; (5) the person who administers the identification procedure should not know whether the suspect is in the lineup or array and certainly should be ignorant of the identity of the suspect (“double-blind testing”); and (6) a statement regarding the witness's confidence should be collected at the time any identification is made."

In Part V, Mosteller argues that states should adopt guidelines in accordance with these recommendations but that they must be made into legally enforceable standards.  He then notes that North Carolina did just that in the wake of (and in response to) the Nifong case.  He praises this move as at least a good first step but wonders whether the remedies in the North Carolina legislation are specific enough and go far enough.  As an advocate of shifting in the way we treat identifications in criminal cases, I found myself agreeing with much of Mosteller's article, and I hope that many state legislatures soon follow suit.

I wrote Professor Mosteller about his article, and he responded,

"In about a week, a related article will be published by the George Mason Law Review, "Exculpatory Evidence, Ethics, and the Road to the Disbarment of Mike Nifong:  The Critical Importance of Full Open-File Discovery," 15 Geo. Mason L. Rev. ___ (forthcoming 2008).  It deals with two other cases in North Carolina and the development of the full open-file discovery law, which was quite important to the proper outcome in the Duke Lacrosse Case."

That article is now available on the George Mason Law Review website. 

-CM

One Dead In Ohio: Court Of Appeals Of Ohio Finds Forfeiture By Wrongdoing Doctrine Only Applies To Actions Taken After The Charged Event

As I noted before, the Supreme Court has granted certiorari in Giles v. California, a case that addresses the issue of whether the forfeiture by wrongdoing doctrine applies even when the prosecution cannot prove a specific intent on the part of a defendant to render a prospective witness unavailable to testify at trial.  Case law uniformly holds that the doctrine applies where a defendant facing trial kills or injures a prospective witness against him because such a defendant has the specific intent to render the prospective witness unavailable.  But what happens when, say, a husband kills his wife and is on trial for her murder?  Should the doctrine apply even though the husband's specific intent in that case was not to render his wife unavailable to testify against him?  As I've noted, a few courts, such as the Supreme Court of Montana in State v. Sanchez, 2008 WL 273926 (Mont. 2008) and the Supreme Court of Wisconisn in the Mark D. Jensen case have found that the forfeiture by wrongdoing doctrine applies in such circumstances and thus must be awaiting the Supreme Court's decision with baited breath.

An example of a court coming to the opposite conclusion can be found in the Court of Appeals of Ohio's recent opinion in State v. McCarley, 2008 WL 375842 (Ohio App. 9 Dist. 2008).  In McCarley, Charlene Puffenbarger filed a paternity/child support suit in November 1991 naming Willard McCarley as the father of her two year old son.  On January 20, 1992, a neighbor came to Charlene's apartment and found her dead on a couch with several scalp lacerations, defensive wounds on her hands, and a leather strap wrapped twice around her neck.  After trial, McCarley was found guilty of aggravated murder after, inter alia, witnesses testified about statements Charlene made to them after she brought her paternity suit and before her murder, which were admitted pursuant to Ohio Rule of Evidence 804(b)(6), its version of the forfeiture by wrongdoing doctrine, which allows for the admission of "[a] statement offered against a party if the unavailability of the witness is due to the wrongdoing of the party for the purpose of preventing the witness from attending or testifying." 

The Court of Appeals of Ohio found that this evidentiary ruling was erroneous because "[i]t would be a very strange case indeed if a person murdered another for the purpose of preventing the other from testifying in their own murder trial."  The court then noted that the Staff Notes to Ohio Rule of Evidence 804(b)(6) indicate that “the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...."  The court thus concluded that "when a homicide victim and a Rule 804 witness are the same person, the forfeiture by wrongdoing provision generally cannot be used to admit that person's statements in their own trial."

Based upon the Staff Notes to Ohio Rule of Evidence 804(b)(6), this conclusion makes sense, but I have a serious question about the Staff Notes themselves.  As noted, the Staff Notes to Ohio Rule of Evidence 804(b)(6) do note that “the rule does not apply to statements of the victim in a homicide prosecution concerning the homicide...."  But this conclusion only comes after the following language in the Staff Notes:  "As the federal drafter's note, [t]he wrongdoing need not consist of a criminal act.  The rule applies to all parties, including the government.  It applies to actions taken after the event to prevent a witness from testifying.' Fed.R.Evid. advisory committee's note."  Obviously, only the third sentence quoted from the advisory committee's notes provides support for Ohio's rule, and that leads to the problem, which is that I can't find this sentence listed in the advisory committee's note.

On Westlaw, the first two sentences are listed, but not the third.  The same is true on Cornell's page listing the Rules.  Unless there's some version of the advisory committee's notes I'm not finding, the emperor has no clothes, and the stated rationale for its line drawing dissipates. 

-CM

Evidence And Ethics 15: Professor Sanders' Expert Witness Ethics

University of Houston Law Center Professor Joseph Sanders' contribution to the Evidence and Ethics Symposium is his article, Expert Witness Ethics.  In the article, Sanders focuses on what ethical standards apply to expert witnesses and "what steps we should take to encourage more ethical behavior" by expert witnesses.  In Part I, he discusses "the nature of the expert's ethical obligation and impediments to fulfilling that obligation."  His starting point is the central proposition that, as reflected in Federal Rule of Evidence 102, "the primary purpose of a trial is to ascertain the truth."  From this proposition, he advocates use of the epistemolical approach of looking at the interplay among "belief, truth, and justification" in determining when an expert can testify.  This approach leads him to argue that "[e]xpert ethical behavior should be judged by the standards of the discipline of the expert." 

He then contends that this result is best achieved by applying "Kumho Tire's requirement that in order to be admissible the expert must employ the 'same intellectual rigor' with respect to his courtroom testimony that he would with respect to his everyday work."  Sanders acknowledges that two primary concerns have been raised to this "same intellectucal rigor" test:  (1) there may be areas for which the profession's acceptable levels of justification are so low that one might argue their standards are always insufficient for legal purposes; and (2) some professional standards may be too stringent, preventing the admission of relevant expert evidence.  Nontheless, Sanders presents persuasive rebuttals as to why this test is most approriate.

In Part II, Sanders "discusses ways we might enforce expert ethical standards through the use of sanctions."  In this part, Sanders considers several potential types of sanctions:  (1) sanctions by the parties to the litigation; (2) sanctions by (and of) lawyers; (3) sanctions by professional organizations; (4) sanctions by judges, and (5) sanctions by juries.  This analysis leads Sanders to conclude that while some sanctions (particularly published admissibility rulings "outing" experts and professional organization sanctions) can play a role in controlling unethical behavior, enforcement problems and countervailing pressures work to minimize their effectiveness as they are applied in only the most egregious cases.

Thus, in Part III, Sanders considers how systemic changes might control expert (mis)behavior.  The most fascinating suggestion he raises is based upon a "recent reform in New South Wales" in Australia.  Sanders notes that a new Civil Procedure Act in Australia, adopted in 2005, calls for, inter alia, "concurrent evidence" sessions.  According to Sanders,

"The concurrent evidence procedure is employed in circumstances where the party experts disagree about some relevant fact. During concurrent evidence sessions, the experts, their attorneys, and the judge meet, freed from the constraint of having to formally respond to lawyer questions. Each expert is given an opportunity to make a statement, to comment on the evidence of other experts, and to ask questions of other experts. At the conclusion of this process, the judge may ask questions and then lawyers are permitted to pose questions that more nearly resemble those that would be asked in traditional adversarial proceedings.  Judges report that the experts and their professional organizations approve of this procedure.  According to Dr. Gary Edmond, judges attribute the following benefits to the concurrent evidence procedure: (1) it reduces partisanship (adversarial bias) and distortion; (2) it embodies scientific values and facilitates peer review; (3) it enhances communication, comprehension, and analysis; (4) it decreases lawyer control; and (5) it reduces time and costs and narrows the real issues."

Sanders cautions that implementation of this "concurrent evidence" procedure would require wholesale changes in American evidence law, but he also notes that pieces of this procedure could be readily implemented into the current American system.  This approach seems to me to be a great solution to a problem that is increasingly plaguing courts, and I hope that those in the legal community pay attention to his recommendations when they next decide to amend the rules on expert evidence.

-CM   

Secret Indictment: Ninth Circuit Inexplicably Drags Its Feet On Sixth Amendment Issue

The Ninth Circuit's recent opinion in United States v. Nunez-Villegas, 2008 WL 399191 (9th Cir. 2008), left open an issue which the court hadn't previously resolved, but which seems to have an answer that is as clear as day.  In Nunez-Villegas, Celso Nunez-Villegas was convicted of one count of being a felon in possession of a firearm under 18 U.S.C. Section 922(g) and one count of being in possession of an unregistered firearm. Id. at *1.  The court allowed Nunez-Villegas to stipulate to the fact that he had a qualifying felony conviction under 18 U.S.C. Section 922(g), but the court nonethless gave the jury a copy of his indictment, which "alleged that his prior felony conviction was for possession of narcotics for sale." Id.  Nunez-Villegas contended that the submission of this indictment violated his Sixth Amendment right to confrontation. Id.

The Ninth Circuit noted that "[t]he Sixth Amendment is violated by '[a] jury's exposure to extrinsic evidence' not presented at trial." Id. (quoting Raley v. Yist, 470 F.3d 792, 803 (9th Cir. 2006).  The court then noted, however, that "[o]ur circuit has not yet decided whether unsupported allegations in an indictment constitute improper 'extrinsic evidence.'" Id.  The Ninth Circuit nonethless found that it did not need to answer this question because "under any standard of review, any error did not contribute to the verdict." Id.  The court came to this conclusion because Nunez-Villegas' stipulation established that he was a prior felon, and his claim that he was not in possession of an unregistered firearm because he merely held the firearm as collateral for a loan was unavailing. id.       

This opinion was no doubt correct based upon the facts of the case, but it leaves me wondering why the Ninth Circuit has failed to answer the question of whether unsupported allegations in an indictment constitute improper "extrinsic evidence."  The Ninth Circuit has defined "extrinsic evidence" under this Sixth Amendment test as evidence not presented at trial, acquired through out-of-cort statements, or otherwise. See Yist, 470 F.3d at 803.  Clearly, Nunez-Villegas' indictment, at least in unredacted form, was not presented at trial and could not have been presented based upon his stipulation, making it extrinsic.  Furthermore, an indictment and the allegations contained therein are clearly "evidence." See, e.g., Haas v. Henkel, 216 U.S. 462, 482 (1910).  Therefore, unsupported allegations in an indictment clearly constitute "extrinsic evidence," triggering a Sixth Amendment violation if they improperly contributed to the verdict.

-CM     

Open The Door, Get On The Floor: Texas Court Makes Erroneous Impeachment Ruling

The Court of Appeals of Texas' recent opinion in Grant v. State, 2008 WL 399208 (Tex.App-Austin 2008) seems to me to be an opinion that confused the concepts of character evidence and impeachment evidence.  In Grant, Johnny Alison Grant was found guilty of aggravated assault by causing serious bodily injury based upon an alleged attack on his former girlfriend.  Grant's defense was that he did strike his ex-girlfriend, but that he was acting in self-defense.

At his trial, Grant testified, inter alia, that he had never “threatened to kill or hurt anybody, ever”  and that he had “never hit a woman before."  Thereafer, the prosecution asked the trial judge to allow Grant's testimony to be impeached with a prior felony conviction from 1976 when Grant stabbed three people in a bar in New York.  The prosecution's theory of admissibility was that Grant had “opened the door” by making statements to the effect that he was a nonviolent person and had created a “false impression with the jury as to his propensity for violence." (emphasis added).

Defense counsel objected that this conviction was inadmissible under Texas Rule Rule of Evidence 609(b), which states that "[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."  The trial judge overruled this objection and allowed for Grant to be impeached by his prior conviction.

On appeal, the Court of Appeals noted that the trial judge was not clear as to whether he allowed for the impeachment because, inter alia, he found that the conviction's probative value substantially outweighed its prejudicial effect under Texas Rule Rule of Evidence 609(b) or whether he found that "Grant 'opened the door' for impeachment....when he made affirmative misrepresentations about his propensity for violence." (emphasis added).  The Court of Appeals, however, found that it did not need to consider Texas Rule Rule of Evidence 609(b) because Grant had "opened the door" by creating a '"false impression" of law abiding behavior, allowing for impeachment basd upon his prior felony conviction.

To me, this analysis makes no sense.  "Character evidence" is covered under Texas Rule of Evidence 404 and in the criminal context typically consists of the prosecutor trying to prove that the defendant has a propensity to act in a particular manner (e.g., violently) and that he thus acted in conformity with this propensity when committing the subject crime.  "Impeachment evidence," at least when prior convictions are involved, is covered under Texas Rule of Evidence 609, and in the criminal context consists of the prosecutor trying to prove that the defendant's past convictions make it so that the jury should not trust his testimony. 

Thus, in a defendant's trial for assault, his felony assault conviction admitted under Texas Rule of Evidence 609 would be admitted to show that the jurors should not trust his testimony, but it would not be admitted to show that he had a propensity to be violent and that he acted in conformity with that propensity when committing the subject crime.  Indeed, the Advisory Committee's Notes to the 1990 amendment to Federal Rule of Evidence 609 (after which Texas Rule of Evidence 609 is modeled), notes that "the rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice --i.e., the danger that convictions that would be excluded under Fed. R. Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes."

Now, lets look at the "opening the door" rationale used by Texas courts.  The prosecution's theory of admissibility was that Grant had “opened the door” by making statements to the effect that he was a nonviolent person and had created a “false impression with the jury as to his propensity for violence." (emphasis added).  The Court of Appeals agreed and thus allowed him to be "impeached" through his prior violent felony conviction.

The problem is that under the court's theory, the prosecution was making a "character evidence" use of the conviction, not an "impeachment" use of the evidence.  The prosecutor was refuting the defendant's claim that he did not have a propensity for violence by presenting evidence that he had a propensity for violence based upon his violent felony conviction.  If the prosecutor were making an impeachment use of the evidence, he would be using the violent felony conviction not to refute the defendant's testimony about his non-propensity for violence but to show that he was lying on the witness stand and should not be trusted by jurors.  Texas courts seem to be confusing these two types of evidence, resulting in their flawed "opening the door" rationale.

-CM                

Atlantic City: Judge Rules Modus Operandi Evidence Admissible In Parking Lot Robberies

The prosecution will be able to present evidence of two similar acts in a New Jersey man's trial for robbing and killing an 87 year-old woman.  Allegedly, at about 1:00 P.M. on August 11, 2006, Robert Shaver left his home in search of a senior citizen to rob.  He then drove to a ShopRite in Atlantic City, hung out in the parking lot, and saw 87 year-old Mildred Petrone, a frail, petite woman, get out of a car.  Shaver then approached Petrone and yanked her purse away with such force that her neck broke.  Five days later, Petrone died in the hospital from her injuries.

The prosecution sought to introduce evidence relating to to other alleged robberies committed by Shaver:  (1) Shaver allegedly attacked 79 year-old Phyllis Cosulich and stole her purse near the same ShopRite, and (2) Shaver allegedly robbed 65 year-old Irene Ruzzo at gunpoint as she left Giovanni's Best of Italy restaurant. 

Under New Jersey Rule of Evidence 404(a), "[e]vidence of a person's character or a trait of his character, including a trait of care or skill or lack thereof, is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion."  Thus, the prosecution could not use Shaver's alleged other crimes to prove that he had propensities to be violent/thieving and that he acted in conformity with these propensities when he violently robbed Petrone.

However, under New Jersey Rule of Evidence 404(b), evidence of other crimes, wrongs, or acts are admissible for other purposes such as proving common plan or scheme/modus operandi.  In other words, Shaver's other robberies could be admissible to prove that he had a common plan of lying in wait for elderly women in parking lots and violently robbbing them.  This is exactly the theory under which the judge allowed for the admission of the other acts, concluding that, "The modus operandi for all three (incidents) is strikingly similar."

-CM    

Let's Make A Deal: Judge Finds Defendant's Statements To State Police Official Don't Constitute Plea Discussions

Brian Dugan is currently on trial for the 1983 murder of 10 year-old Naperville schoolgirl Jeanine Nicarico, and his defense has been dealt a serious setback after DuPage CIrcuit Judge George Bakalis ruled that parts of decades' old audio recordings in which Dugan details acts of sexual violence are admissible .  Dugan is already serving two life sentences based upon two prior murder convictions, and DuPage State's Attorney Joseph Birkett has said that he will pursue the death penalty if Dugan is convicted of killing Nicario.

Those odds increased greatly with Judge Bakalis' admissibility ruling on the tapes, which were recorded during three interviews with state police official Robert Thorud in October 1986 for a state police study of sexual predators.  In the recordings, Dugan does not name Nicario, but he does make incriminating remarks, such as "when I did the others."  Dugan's defense counsel had argued that these tapes were inadmissible, inter alia, because they were part of ongoing plea discussions.  His counsel asserted, "Why else would he be talking to them?"  "To be a good Samaritan?"  Judge Bakalis, however, rejected this argument, finding that the interviews were not part of any protected plea talks.

This ruling makes sense under current plea bargaining jurisprudence.  Under Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(f) (which used to be Rule 11(e)(6)), "any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn" are inadmissible against the defendant who was a participant in the plea discussions.  Illinois has incorporated these Rules into its case law. See People v. Jones, 845 N.E.2d 598 (Ill. 2006). 

Prior to 1979, there was a dispute "over whether these rules operated to make plea negotiations between an accused and law enforcement officials inadmissible or whether they only applied when the discussion was between the accused (or his attorney) and a government attorney." See Colin Miller, Caveat Prosecutor, 32 New Eng. J. on Crim. & Civ. Confinement 209, 229 (2006).  In 1979, however, the Rules were amended so that plea negotiations with law enforcement officials were not covered by the Rules; instead, the Rules only cover "plea negotiations" with prosecutors or those acting with their express authority. Id.

In the Dugan case, his statements were cleary to state police official Robert Thorud, meaning that they did not constitute plea negotiations protected by the Rules (unless Thorud had express authority from a prosecutor, which doesn't seem to be the case).

-CM   

Evidence And Ethics 14: Vice Dean/Professor Perrin's The Perplexing Problem of Client Perjury

Pepperdine University School of Law Vice Dean and Professor of Law L. Timothy Perrin's contribution to the Evidence and Ethics Symposium is his article, The Perplexing Problem of Client Perjury.  In the introduction, Perrin begins by noting that the most difficult ethical questions for lawyers arise "when the duty to the court collides with the duty to the client."  Perrin then sets out to addess "a particularly perplexing instance of such a conflict:  What are the responsibilities of a criminal defense lawyer when his or her client seeks to take the witness stand and testify falsely?  Should truth or partisanship prevail?"  He then lays out a very persuasive argument that it is the truth that should prevail.

In Part I, Perrin addresses how the Federal Rules of Evidence "resolve the conflicts between the system's search for the truth and the heightened constitutional protections accorded to criminal defendants."  He notes that, pursuant to Federal Rule of Evidence 102, the Rules attempt to accomplish two fundamental objectives:  (1) ascertaining truth, and (2) dispensing justice/protecting the rights of the accused.  With regard to the former objective, he indicates that the Rules were "drafted to account for the perceived strengths and weaknesses of the various partcipants in the adversary system":  judges are given the power to make evidentiary decisions, jurors are given great deference with regard to their evaluations of witnesses and facts, and lawyers are given significant autonomy to make strategic decisions but are also viewed with suspicion.  The Rules thus "seek to create the right conditions for finding the truth by empowering judges, protecting jurors, and restraining lawyers."

With regard to the latter objective, he notes, inter alia, that the Rules include several provisions that seek to conform to constitutional rights, and allow for criminal defendant's to present propensity evidence under the Rule 404(a) exceptions while such evidence is generally prohibited in civil trials.  Perrin then indicates that the these two hallmarks of the Rules of Evidence do collide on occasion, with the former winning out both in the context of prosectors using confessions obtained in violation of the Miranda warning for impeachment purposes and the forfeiture by wrongdoing doctrine under Federal Rule of Evidence 804(b)(6).

In Part II, Perrin asks whether lawyers are merely "amoral technicians" charged with zealously representing their clients within the bounds of the law, as advocated by Professor Monroe Freedman.  Or does teaching law students to have such a "Contextual View" of lawyering have "the undesirable effect of 'teaching students that ethical-social issues are not important to the way one ought to think about legal practice," as argued by the Carnegie Foundation and Professor William Simon?

In Part III, Perrin begins by noting that Model Rule 3.3 indicates that, inter alia, a lawyer shall not offer evidence the lawyer knows is false and may refuse to offer evidence (other than the testimony of a defendant in a criminal case) that the lawyer reasonably believes is false.  Perrin then proceeds to set forth several different tacts defense lawyers have taken when their clients want to testify falsely (and how courts have responded to them):  convincing the client to tell the truth, refusing to allow the client to testify, withdrawing to avoid participation in the fraud, and having the client testify through narrative testimony.

Perrin concludes with the words of Abraham Lincoln, who wrote, "Let no young man, choosing the law for a calling, for a moment yield to this popular belief. Resolve to be honest at all events; and if, in your own judgment, you can not be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave."

Perrin thus contends that, "Lincoln's advice suggests that the answer to the profession's truthfulness deficit is not to be found in more rules of ethics or in better enforcement of the rules of ethics, but that the answer will be found with individual lawyers who have an unflagging commitment to the truth." 

-CM

 

Rocket Man: Clemens-McNamee Soap Opera Highlights Distinctions Between Texas And Federal Rules Of Evidence

The Roger Clemens-McNamee soap opera is a good place to point out 2 divergences between the Federal Rules of Evidence and the Texas Rules of Evidence.  Over at PrawfsBlawg, Professor Howard Wasserman notes that "McNamee has accused four people of using HGH or steroids: Clemens, Andy Pettite, Chuck Knoblack, and Debbie Clemens (Roger's wife). And in the discussion over McNamee's credibility, much is being made of the fact that three of the four people (everyone but Roger) he has accused have admitted to taking drugs--that is, they have acknowledged that McNamee told the truth."  Wasserman then gives his preliminary take that, inter alia, the fact that three accusations have been true would be "[a]dmissible under 608(b)(2) (or the Texas equivalent) if Clemens puts on a reputation witness to attack McNamee's character for truthfulness. That witness could be cross-examined about specific instances of truthful conduct by McNamee.

Federal Rule of Evidence 608(b)(2) does, under certain circumstances, allow for cross-examination about specific instances of truthful conduct, although it allows for no extrinsic evidence of such instances if the witness denies (knowledge of) them.  Texas Rule of Evidence 608, however, indicates that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence."  Therefore, the fact that three accusations have been true would be inadmissible in  a case heard under the Texas Rules of Evidence.

The second difference involves the statement against interest exception to the rule against hearsay.  Under Federal Rule of Evidence 804(b)(3), if the declarant is "unavailable" at trial, "[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."

However, under Texas Rule of Evidence 803(24), whether or not the declarant is available at trial, "[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, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true." (emphasis added)

Thus, the two key differences between the two rules are that the federal rule only allows for the admission of "statements against interest" when the declarant is unavailable and when the statement exposes the declarant to liability or harms a claim or interest; the Texas rule don't require witness unavailability and catches a wider range of statements under its purview.  Now, if both Clemens and McNamee are parties in a case in Texas, these differences are meaningless because the rules regaring party admissions would govern.  If, however, Clemens or McNamee brought a defamation against against a newspaper or some other entity and the other were not a party, these distinctions could be very relevant.

-CM

It Seems So Juvenile: Appellate Court Of Illinois Reverses Convictions Based Upon Trial Court's Erroneous Juvenile Impeachment Ruling

The Appellate Court of Illinois' recent opinion in People v. Newborn is the latest example of a court failing to properly apply the correct analysis in determining whether a conviction is admissible for impeachment purposes.  In Newborn, the defendant was convicted of armed robbery as a juvenile based in large part on the testimony of one of the State's key witnesses, Bobby King.  King, an adult, was either an occurrence witness or a participant in the crime, depending on conflicting testimony that was given at trial.

Immediately before jury selection, defense counsel had requested and received access to juvenile court records regarding King's delinquency adjudications in two prior 2002 cases.  Each of these adjudications involved juvenile felonies.  Prior to King's testimony, the State moved to bar questioning about his juvenile criminal record.  Defense counsel countered that he intended to impeach King's credibility with two prior juvenile adjudications.  The court took judicial notice of King's prior adjudications, but it did not allow the defendant to utlize those adjudications for impeachment purposes, noting that there was an absence of case law permitting admission of a prior juvenile adjudication for purposes of impeachment.

Unfortunately, this conclusion was incorrect.  Pursuant to Federal Rule of Evidence 609(d), "[e]vidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence."  While Illinois does not have a statutory counterpart to this federal rule, it has incorporated this language into its case law.  See People v. Montgomery, 268 N.E.2d 695, 699 (Ill. 1971).

Thus, while juvenile adjudications are rarely deemed admissible to impeach, they are admissible (1) in criminal cases, (2) against witnesses other than the accused, when (3) the court determines that the adjudications are necessary for a fair determination of guilt or innocence.  Clearly, elements one and two were satisfied in the Newborn case, and while element three is almost never satisfied, the Appeallate Court of Illinois determined that it could not resolve the issue because it was impossible to ascretain from the record the nature of King's delinquency adjudications.  Therefore the court reversed Newborn's convictions and remanded for a new trial.  Without knowing the nature of King's delinquency adjudications, this seems to me the only decision that the court could have made.