EvidenceProf Blog

Startling Opinion: Michigan Supreme Court Reverses Trial Court's Excited Utterance Ruling

The Michigan Supreme Court's recent opinion in People v. Barrett, 2008 WL 1701889 (Mich. 2008), contains an important discussion of what factual predicate must be established before a hearsay exception is applied.  In Barrett, Suzanne Bartel, the longtime, live-in girlfriend of the defendant, David Carl Barrett, pounded on her neighbors' door, said that Barrett was chasing her with an ax, and asked to use their phone.  Bartel was hysterical and crying, and her hysteria continued as she reported to the 911 operator that defendant had kicked the door in, beaten her, tried to strangle her, and brandished a hatchet. 

When the first responding officer arrived, Bartel similarly told him that Barrett had punched a hole in the bedroom door, pinned her to the bed, began hitting her face, picked up a hatchet, grabbed her around the neck, raised the hatchet, and said he was going to kill her. The officer observed that Bartel was so agitated that she could not sit down and that it was apparent that Bartel had been crying. When he and other officers searched Bartel's house, they found the hatchet in the house and a 12-inch hole in one of the doors. The officers observed marks on Bartel's shoulders and one arm and a cut on the inside of her mouth.

Barrett was charged with domestic assault and felonious assault, but at the preliminary examination, Bartel refused to testify. Faced with the prospect of a dismissal of the charges because of insufficient proof, the prosecuting attorney attempted to have the statements Bartel made to the 911 operator, one of the neighbors, and the police officer admitted as excited utterances under Michigan Rule of Evidence 803(2).  This rule is an exception to the rule against hearsay and allows for the admission of statements relating to startling events and conditions made while the declarant was under the stress of the startling event or condition.

According to defense counsel, however, the triggering startling event must be established by evidence solely apart from an excited utterance before the excited utterance can be admitted. The examining magistrate agreed with defense counsel and found that sufficient independent evidence of the alleged assault had not been presented and thus dismissed the charges against Barrett. The prosecution's appeal eventually reached the Michigan Supreme Court, which found that the question of whether the elements of the excited utterance exception have been established is a preliminary question of fact to be resolved under Michigan Rule of Evidence 104(a).

The Michigan Supreme Court noted that older Michigan cases indeed held that an alleged excited utterance itself could not be used as evidence that a startling event or condition occurred.  The Court, however, noted that this was all changed by the United States Supreme Court's decision in United States v. Bourjaily, 483 U.S. 171 (1987), where it was determined in the context of co-conspirator's admissions that the alleged admission itself could be used as evidence that the person making the admission was in fact a co-conspirator of the defendant.  The Michigan Supreme Court found that this same analysis applies to excited utterances and thus should have allowed for the admission of Bartel's statements as excited utterances, a decision which I think is proper and consistent with precedent from across the country.

-CM

Power Of The Press: 7th Circuit Finds Subsequent Remedial Measure Evidence Inadmissible In Class Action Suit Against the Trib

The Seventh Circuit's recent opinion in Pugh v. Tribune Co., 2008 WL 867739 (7th Cir. 2008), provides a nice illustration of the rule precluding the use of subsequent remedial measures to prove, inter alia, negligence or culpable conduct.  In Pugh, shareholders of the newspaper publishing company the Tribune Company brought a securities class action against it, four of its executive officers, and five employees of its subsidiary, arising from fraudulent boosting of newspaper circulation figures at subsidiary in effort to increase advertising revenue.  One of the plaintiffs' allegations was that the Tribune and the other defendants "intentionally or recklessly created weak circulation controls."

The plaintiffs attempted to prove a specific control deficiency by arguing that, unlike other publishers, the Tribune Company had not required that its circulation figures be certified before they were submitted to the Audit Bureau of Circulations. This allegation seized upon the Tribune Company's disclosure, at the end of an internal investigation, that in the future it would require certain executives to certify the accuracy of their newspaper's circulation figures.  The Seventh Circuit, however, found that this evidence was inadmissible under Federal Rule of Evidence 407, which states in relevant part:  "When, 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 [or] culpable conduct." 

The reasoning behind this rule is that (1) the fact that a defendant adopts a subsequent remedial measure does not necessarily mean that prior measures were insufficient, and (2) we don't want to discourage defendants from making things safer.  As the Seventh Circuit stated with regard to the Pugh case, "adding a certification requirement does not show that Tribune's existing controls were insufficient, much less that any individual defendant knew of or was recklessly indifferent to an actual, ongoing fraud."

-CM

Person Of Interest?: Eleventh Circuit Incorrectly Applies Statement Against Interest Hearsay Exception

The Eleventh Circuit's recent opinion in United States v. Westry, 2008 WL 1735384 (11th Cir. 2008), seems to me to apply the statement against interest exception correctly in one regard but incorrectly in another.  In Westry, several defendants, including Willie Earl Crater Jr., were convicted of conspiracy to distribute controlled substances (and various substantive offenses), and had their sentences enhanced, inter alia, based upon the death of Jasen Johns while using drugs allegedly supplied by members of the conspiracy.  The prosecution proved that Johns died while using drugs allegedly supplied by members of the conspiracy in part through hearsay statements made by Johns.  Specifically, after establishing that Carter's nickname was "Bip," the prosecutor asked Johns' cousin, Michael Carpenter, about the events surrounding Johns' death, and the following exchange took place:

     -Q. And when you left, what was going on there at the house?

     -A. He was waiting, he said he was waiting on somebody to come with some cocaine, that he had-waiting on some cocaine to come in.

     -Q. And do you know who? * * *

     -Q. Do you know who he was waiting on?

     -A. Bip, he said. * * *

     -Q. And when you left, had Bip arrived?

     -A. Yeah. He was just coming in, and they went to the back.

At trial, Carpenter's attorney objected that Johns' statements were inadmissible hearsay, but the trial judge overruled his objection.  On appeal, the Eleventh Circuit found that Johns' statements were admissible under Federal Rule of Evidence 804(b)(3), which allows for the admission of a statement by an unavailable declarant, "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." 

The Eleventh Circuit got one part of the analysis correct.  It noted that Carpenter was claiming on appeal that Johns' statements (about drug purchasing/use) were not against his interest and did not expose him to criminal liability because they were made to his cousin, whom Johns had no reason to believe would implicate him.  The Eleventh Circuit rejected this argument, claiming that it is unnecessary that the declarant know he was speaking to a person who could cause his prosecution.  I agree with this analysis.  The point of the statement against interest exception is not that the speaker believes his statement will actually expose him to criminal liability.  The point is that there's good reason to believe a person when he makes statements admitting to blameworthy conduct.

On the other hand, the Eleventh Circuit got another part of the analysis very wrong.  In Williamson v. United States, 512 U.S. 594 (1994), the Supreme Court made very clear that in applying the statement against interest exception, courts need to be very careful in parsing the declarant's statements and only admitting those statements that implicate the declarant while excluding those statements which implicate others.  Looking back at Johns' statements, we see that his first statement is self-inculpatory because he admits that he's waiting to get drugs.  His second statement, however, merely indicates that he was waiting for "Bip"/Carpenter.  This statement in no way implicates Johns, but it does implicate Carpenter.  Thus, the statement should have been deemed inadmissible.

-CM

The Interpreter: Texas Court Applies "Language Conduit" Rule To Admit Translated Admissions

The Court of Appeals of Texas' recent opinion in Pitts v. State, 2008 WL 1747664 (Tex.App.-Houston 2008), provides a nice illustration of the "language conduit" rule.  The facts of the case were as follows.  In 2005, Antonio Morales was a passenger in the car of his cousin, the complainant, when they stopped at a red light. Lakeisha Ball, the former girlfriend of the defendant, approached the passenger side of the car and spoke to the complainant, who turned off the ignition and told Morales that they would leave in a minute.  The defendant, however, suddenly appeared, placed a gun to Morales's head, and demanded the complainant's keys.  The defendant and Ball then entered the back seat of the car, and the defendant gave the keys back to the complainant and told him to drive.

As they were driving, the complainant "apparently volunteered to interpret" and told Morales, who spoke no English, that the defendant said for Morales to give the defendant his money. Morales initially gave the defendant his money and then gave the defendant his wallet when the complainant told Morales that the defendant was demanding it, too.  When they later stopped in a vacant lot, the complainant told Morales that the defendant said for Morales to get out of the car and to kneel down. Morales did so, thinking that the defendant was going to shoot him; instead, the defendant shot the complainant, who died from a single gunshot to the back of the chest.  At trial, Morales testified about the statements the complainant translated from the defendant to him, and the defendant was convicted of capital murder.

On appeal, the defendant alleged, inter alia, that the trial court erred by permitting Morales to testify about the hearsay statements made by the complainant.  The Court of Appeals of Texas, however, found that the statements were admissible pursuant to Texas Rule of Evidence 801(e)(2)(D), which allows for the admission of "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."  Traditionally, this Rule applies when an employee makes a confession which binds his employer, but it also allows for the admission of statements made under the "language conduit" rule,  "whereby a translated statement of a defendant is admissible on the theory that the interpreter serves as an agent of, or a language conduit for, the declarant-defendant, thus rendering the statement the defendant's own admission." 

The Court of Appeals then noted that Texas courts determine whether the "language conduit" rule applies based upon four factors: (1) which party supplied the interpreter; (2) whether the interpreter had any motive to mislead or to distort; (3) the interpreter's qualifications and language skill; and (4) whether actions taken subsequent to the conversation were consistent with the statements as translated.  The court then found most of the complainant's statements admissible based upon these factors (the subsequent actions were consistent, and the complainant had fluency in both languages and no motive to mislead).

Texas' application of the "language conduit" rule is consistent with case law in other states and several federal circuits, but not all courts gave adopted such a rule.  See, e.g., State v. Rodriguez-Castillo, 151 P.3d 931, 937 (Or.App. 2007).  I think, however, that as long as courts such as Texas courts can be diligent in ensuring that translated statements are reliable before admitting them, there is good reason for the universal adoption of such a rule.   

-CM

You're Getting Very Sleepy, Take 2: Baltovich Case Reveals Canada's Hostile Treatment Of Hypnotically Induced Evidence

Here on the EvidenceProf Blog, I've had a few opportunities to address how courts across this country treat hypnotically refreshed testimony.  In New York, hypnotically refreshed testimony is per se inadmissible.  Wisconsin uses a nine factor test in evaluating whether to admit hypnotically refreshed testimony.  South Dakota courts and courts in the Eighth Circuit Court of Appeals allow for the admission of hypnotically refreshed testimony as long as five procedural safeguards are satisfied.  And other courts across the country apply a variety of different tests in evaluating the admissibility of hypnotically refreshed testimony.

And what of our neighbors to the north?  This week's decision of a Crown prosecutor to concede the case against Robert Baltovich and not retry him provides an opportunity to address the issue.  In 1992, Baltovich was convicted of murder in the second degree in connection with his alleged killing of his girlfriend Elizabeth Bain.  In addition to other evidence, the testimony of two witnesses -- Marianne Perz and Suzanne Nadon -- helped lead to Baltovich's second degree murder conviction in 1992. 

Bain was last heard from at 4:00 P.M. on June 19, 1990, after telling her mother she was going to check the schedules at the tennis court at the Scarborough campus of the University of Toronto.  At trial, Perz testified that on the 19th, she saw Bain with a man at about 5:40 P.M. at picnic tables near the tennis courts. Three weeks after Bain disappeared, Perz agreed to be hypnotized.  At this point, Bain was already aware that Baltovich was a suspect and had seen his photo in a local newspaper.  After being hypnotized, Perz viewed a photo lineup and said the picture of Baltovich was the "closest" to looking like the man she saw at the picnic table.  Suzanne Nadon, who was also hypnotized, testified that she saw a couple arguing in the early morning hours of June 18th.  According to Nadon, the woman looked like Bain, and a car she saw was similar to a photo of the automobile Bain owned.

After Baltovich was convicted of murder in the second degree and served about eight years in jail, his lawyers appealed his conviction, and Baltovich was released on bail pending the outcome of his appeal.  Finally, on December 2, 2004, the Ontario Court of Appeal set aside Baltovich's conviction, delivering what news reporters called "a scathing attack" on the conduct of the original trial judge.  Baltovich was set to be re-tried, but, as I noted above, this week a Crown prosecutor to concede the case?  Why?

Well, the single worst blow to the prosecution was Canadian law's increasingly hostile treatment of evidence obtained through police-supervised hypnotism of prosecution witnesses.  Specifically, the Supreme Court of Canada adopted a hard line against prosecution hypno-evidence in their 2007 ruling in R. vs. Trochym, in which it adopted a new doctrine that such evidence should be generally excluded because of the potential for abuse.  In that case, the Court observed that "the officer who drove [a] witness to the hypnotist's office may have had a copy of the Toronto Sun on the seat of his cruiser. The front page of that edition had a large photo of the accused and identified him as the prime suspect in the murder. During the hypnosis session, the witness described the abused." This struck the Court hearing Stephen Trochym's appeal as powerful evidence that hitherto existing judicial safeguards, which were focused narrowly on what happens inside the hypnosis room, were not enough to ensure fairness to the accused.

Based upon this precedent, in pre-trial rulings in the Baltovich re-trial, the testimony of Perz and Nadon was ruled inadmissible because it was made after they were hypnotized, prompting the Crown prosecutor to drop the case.  While I don't know that much about hypnosis, I generally agree with the concern expressed in a Canadian article on the Baltovich case, which noted that "[a]ny stage hypnotist can tell you that hypnosis involves freeing the imagination and, above all, making the subject more suggestible. You don't need a doctorate in psychology to see why this might be a dangerous thing to do with a witness who is naturally eager to cooperate, play a heroic role and come up with the "right" answer the police are looking for.  Thus, I lean more toward the Canadian "hard line" approach to hypno-evidence than the American approach, which seems to freely admit the evidence as long as certain safeguards are satisfied.

-CM 

What's The 411? Kentucky Court Finds Rule Of Evidence 411 Doesn't Cover Health Insurance

The Court of Appeals of Kentucky's recent opinion in Barkman v. Overstreet, 2008 WL 1052931 (Ky.App. 2008), contains an interesting discussion of Kentucky Rule of Evidence 411, which is identical to Federal Rule of Evidence 411.  Both indicate that "[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."  There are two main reasons for Rule 411.  The first reason is the belief that such evidence has low or no probative value on the issue of whether someone acted negligently/wrongfully.  According to the Advisory Committee Notes to Rule 411, "[a]t best the inference of fault from the fact of insurance coverage is a tenuous one, as is its converse."  In other words, in, say, a case where a guest is injured at a defendant's home, do we infer (1) that a person with homeowner's insurance is likely to keep his home less safe than someone without homeowner's insurance because he knows that he is covered in the event of an accident; or (2) that a person with homeowner's insurance is a person who desires safety and is thus likely to keep his home more safe than someone without homeowner's insurance?  According to the Advisory Committee, either inference is weak, making liability insurance inadmissible to prove/disprove negligence or otherwise wrongful conduct.

The second, "[m]ore important," concern according to the Advisory Committee Notes is the concern "that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds."  In other words, in the case mentioned above, jurors might ignore the absence of evidence of negligence on the homeowner's part if they know that he has homeowner's insurance  because they know that a judgment against him will not come directly out of his pocket.  Conversely, if the guest is seeking significant monetary damages, and the jurors know that the defendant has no homeowner's insurance, they might ignore significant evidence of negligence based upon the knowledge that a verdict against the defendant could put him in financial distress.

So, how does this all relate to the Overstreet case? Well, in Overstreet, while Tammy Barkman was driving her car, a large tree limb fell on her car, crushing the top of the vehicle and causing Barkman to lose control and wreck. She was thereafter transported to the emergency room at Ephraim McDowell Regional Medical Center, and upon admittance,  Barkman could move her arms and legs but was complaining of pain all over her body.  Barkman was initially examined and treated by Dr. John Heiss, who later contacted Dr. David Overstreet, her primary care physician.  Dr. Overstreet thereafter examined and treated Barkman.  However, despite receiving treatment, Barkman permanently suffered paralysis of all four limbs and filed a medical malpractice action against Ephraim McDowell Regional Medical Center, Heiss and Overstreet. 

At trial, Barkman's attorney asked Overstreet, "OK, so you are saying that you just made up this loss of consciousness?"  He responded, "I didn't make it up. I didn't make it up. But, uh, you know, the insurance companies and you guys are the ones that force us into these pigeon holes."  Barkman thereafter asked the trial court to declare a mistrial because Overstreet had intentionally mentioned insurance, but the trial court denied Barkman's request and also denied her request for an admonition regarding Overstreet's use of the word "insurance."  On appeal, the Court of Appeals of Kentucky affirmed, finding that:  "Placing Overstreet's remark into its proper context, it becomes apparent that Overstreet was referring to health insurance not liability insurance. Because KRE 411 applies only to liability insurance, we conclude the trial court did not abuse its discretion when it denied Barkman's motion for a mistrial and her request for an admonition."

So, did the court rule correctly?  I believe that it did.  Essentially, liability insurance is insurance that pays on behalf of the insured for certain types of injuries to others.  Health insurance does not seem to fall under that definition of liability insurance, so the Kentucky court's ruling seems correct and consistent with the rulings of courts in other states. See, e.g., Cervantes v. Rijlaardsam, 949 P.2d 56, 58 (Ariz.App. Div. 2 1997) ("Second, Evidence Rule 411 specifically applies to 'insurance against liability' and does not mention health insurance.").

-CM

OK Computer: Ninth Circuit Finds No Reasonable Suspicion Required For Search Of Laptop At Customs

On July 17, 2005, forty-three-year-old Michael Arnold arrived at Los Angeles International Airport after a flight from the Philippines.  Arnold proceeded to customs, where Officer Laura Peng selected him for secondary questioning. Upon questioning, Arnold stated that he was on vacation for three weeks visiting friends in the Philippines.  Peng then inspected Arnold's luggage, which included his laptop computer and related equipment.  When the computer had booted up, Peng and Officer John Roberts clicked on Kodak folders on the computer, opened the files within them, and viewed photos in the files, including one that depicted two nude women. Roberts called in supervisors, who in turn called in special agents with the United States Department of Homeland Security, Immigration and Customs Enforcement. These agents questioned Arnold about the contents of his computer, detained him for several hours, and examined his computer equipment and found numerous images depicting what they believed to be child pornography. The officers seized the computer and equipment but released Arnold. Two weeks later, federal agents obtained a warrant to search the computer and apparently found child pornography, leading to several child pornography-related charges being leveled against Arnold.  Arnold moved to suppress the images found of his computer on the ground that they were found through a search conducted without reasonable suspicion, and the district court granted his motion.  On appeal, however, the Ninth Circuit reversed.

Why did they do so?  Well, generally, "[t]he luggage carried by a traveler entering the country may be searched at random by a customs officer ... no matter how great the traveler's desire to conceal the contents may be." United States v. Ross, 456 U.S. 798, 823 (1982).  As the Ninth Circuit noted, though, Arnold raised three arguments as to why reasonable suspicion should be required before search of laptop computers at customs:

     -(1) a laptop computer is distinguishable from other containers of documents based on its ability to store greater amounts of information and its unique role in modern life;   

     -(2)  laptop computers are similar to "homes" and the "human mind" and fundamentally different from traditional closed containers; and

     -(3) the risk is high with a laptop search that expressive material will be exposed.

The Ninth Circuit characterized Arnold's first argument as the argument that the principle that "as a search becomes more intrusive, more suspicion is needed” in the context of a search of the human body should be applied as a sliding intrusiveness scale to determine when reasonable suspicion is needed to search property.  The Ninth Circuit then rejected this argument, finding that it had expressly repudiated this type of "least restrictive means test" in the border search context.  The court further found that neither the "exceptional damage to property" exception nor the "particularly offensive manner" exception to the government's broad border search powers applied to the search of the laptop.  With regard to the latter exception, the court found that case law did not support a finding that a search which occurs in an otherwise ordinary manner, is "particularly offensive" simply due to the storage capacity of the object being searched.

With regard to Arnold's second argument, the Ninth Circuit noted that in Carney v. California, 471 U.S. 386 (1985), the Supreme Court rejected the argument that evidence obtained from a warrantless search of a mobile home should be suppressed because it was  "capable of functioning as a home."  It noted that the Supreme Court refused to treat a mobile home differently from other vehicles because

     -(1) a mobile home is “readily movable;" and

     -(2) "the expectation [of privacy] with respect to one's automobile is significantly less than that relating to one's home or office."

     The Ninth Circuit then found that beyond the simple fact that one cannot live in a laptop, Carney militated against the proposition that a laptop is a home because

     -(1) a laptop goes with the person, and, therefore is "readily mobile;" and

     -(2) one's “expectation of privacy [at the border] ... is significantly less than that relating to one's home or office."

Third, the Ninth Circuit rejected Arnold's First Amendment argument and sided with the Fourth Circuit's opinion in United States v. Ickes, 393 F.3d 501, 502 (4th Cir. 2005), where that court upheld a search of a defendant's van as he was entering the U.S. from Canada and rejected the defendant's argument that the court should carve out a First Amendment exception to the border search doctrine because such a rule would:

     -(1) protect terrorist communications "which are inherently 'expressive';"

     -(2) create an unworkable standard for government agents who "would have to decide-on their feet-which expressive material is covered by the First Amendment;" and

     -(3) contravene the weight of Supreme Court precedent refusing to subject government action to greater scrutiny with respect to the Fourth Amendment when an alleged First Amendment interest is also at stake.

I'm not especially comfortable with the court's ruling, but it seems to me that the three arguments raised by Arnold were lacking in merit.

-CM

The Ice Pick Murderer, Take 2: Tomlinson Identified Her Assailant Shortly Before Being Placed In Induced Coma

Back on April 14th, I wrote a post about the trial of Sandra Matthews-Johnson, the Ohio woman accused of stabbing her roommate, Ottie Marie Tomlinson, below the left ear with an ice pick.  I noted that the trial judge permitted the prosecution to introduce into evidence oral and written statements made by Tomlinson identifying Matthews-Johnson as her assailant, likely as dying declarations.  The potential problem with this ruling that I identified was that for a statement to be admissible as a dying declaration, it must have been made while the speaker believed her death to be imminent, and Tomlinson lived for over a month after the stabbing.  I wrote then:  Obviously, the question would be whether Tomlinson believed her death was "imminent" when she spoke with the police investigators, but it would seem to me that the fact that she lived for at least a month after the attack would indicate that she did not think her death was "imminent" when she spoke with the investigators.  Of course, if Tomlinson spoke with the investigators soon before her death, it is possible that her statements were "dying declarations."

It appears that this last statement was indeed true, making the trial judge's ruling proper.  Apparently, Tomlinson's written identification of Matthews-Johnson as her assailant to police officers was made  while she was intubated, and shortly thereafter, doctors placed her in an induced coma from which she never recovered.  Thus, it appears that Tomlinson likely did believe that he death was imminent when she identified Matthews-Johnson, making her identification admissible as an dying declaration.

-CM 

Forfeit Victory, Take 5: Fallacious Dying Declaration Argument Raised In Giles Oral Arguments

Yesterday, the United States Supreme Court heard oral arguments in Giles v. California, the case raising the issue of whether the forfeiture by wrongdoing doctrine extends to cases where a party (usually the defendant) caused a prospective witness to be unavailable for trial but did not specifically intend to render the prospective witness unavailable (for example, it's tough to argue that a man who allegedly killed his ex-girlfriend had the specific intent of rendering her unavailable for his subsequent trial for murdering her).  So, how did things go?  Will, it looks to me like a mixed bag.  Chief Justice Roberts seemed somewhat skeptical of the argument of Giles' counsel for a more limited application of the forfeiture by wrongdoing doctrine, noting that under this reading of the doctrine, a murderer "gets a great benefit from murdering her. . . . Her testimony is not available. We usually, under our system, don't try to give benefits for murderers."  On the other hand, Justice Kennedy challenged the state's argument that specific intent is not required.  Kennedy responded to the state's argument by saying, "I think it's an astonishingly broad exception you're asking for."  According to Kennedy, it would allow the kind of secondhand "hearsay" testimony the court had barred in the 2004 ruling in Crawford v. Washington, 541 U.S. 36 (2004).

Richard Friedman, who attended the oral arguments, has some great posts about what transpired.  And according to him, Giles’ counsel (Marilyn Burkhardt) gained some traction with an historical argument that was emphasized especially in the amicus brief of the National Association of Criminal Defense Lawyers – that if forfeiture was as broad at the time of the framing of the Sixth Amendment as California contends, there would have been no need for a dying declaration that applied only when the victim believed death was imminent.  This leads me to repeat my argument that this position is nonsensical.  In other words, even if we apply a version of the forfeiture by wrongdoing doctrine that does not contain a specific intent requirement, the doctrine would not swallow up the dying declaration exception, as some judges have contended.  Why?

Well, let's say that a man allegedly murders his ex-girlfriend and her family subsequently sues him for wrongful death.  At trial, the plaintiffs' attorney seeks call an EMT to testify that he came upon the victim and informed her that her death was imminent, whereupon she told him that her ex-boyfriend shot her.  And let's say that the other evidence in the case does not yet support a finding that the defendant killed the victim.  Here, even under the version of the forfeiture by wrongdoing doctrine not requiring specific intent, the victim's statements will not be admissible against the defendant because it has not been established by a preponderance of the evidence that the defendant killed the victim and caused her unavailability.  However, the victim's statement would almost certainly qualify as a dying declaration under Federal Rule of Evidence 804(b)(2) and state counterparts because it would be a statement by the declarant about the cause or circumstances of her impending death while she believed her death was imminent.

As I've previously stated, I support a reading of the forfeiture by wrongdoing doctrine which does not contain a specific intent requirement, but I can certainly see the opposing argument, so I won't be upset if the Supreme Court goes in the other other direction.  But I will be upset if they base it upon the argument that  a version of the forfeiture by wrongdoing doctrine that does not contain a specific intent requirement swallows up the dying declaration exception because that conclusion doesn't hold water.

-CM
 

Blame Canada: Legal Experts Expect Supreme Court Of Canada To Get Rid Of Per Se Rule Excluding Illegally Obtained Evidence

Will the Supreme Court of Canada use the case of 18 year-old Donnohue Grant to rewrite the rules on when illegally obtained evidence is nonetheless admissible at trial?  Apparently, that's the consensus among the movers and shakers in Canadian legal circles.  One late autumn afternoon in 2003, Toronto Police officers grew suspicious as they watched Grant amble along a sidewalk in Toronto's east end, not far from several schools.  The officers observed Grant acting "nervous" and "twitchy" and thus stopped and questioned him for six minutes.  Whether acting out of fear, intimidation or simple honesty, Grant thereafter blurted out, "I have a firearm" and emptied his pockets, revealing a loaded gun and a bag of marijuana.  The Ontario Court of Appeal found that his rights were violated, yet it upheld the conviction and the 18-month sentence because of the seriousness of the evidence found by the officers.

On April 24th, the Supreme Court of Canada will hear Grant's appeal, with the main issue being that the Court of Appeal's decision rolled back rights that have been established since the Supreme Court of Canada's revolutionary 1997 ruling in R v. Stillman.  Before considering that case, let's look at how Canada handles illegally obtained evidence.  "A multi-factored test is used to determine whether illegally obtained evidence will be excluded in Canada: (1) whether the admission of the illegally obtained evidence affects the fairness of the trial; (2) the serious of the violation; and (3) whether the exclusion of the evidence calls the administration of justice into disrepute." Wesley MacNeil Oliver, Toward a Better Categorical Balance of the Costs and Benefits of the Exclusionary Rule, 9 Buff. Crim. L. Rev. 2001, 259 (2005).  So, what did R v. Stillman add to this framework?  It held that "[t]he admission of conscriptive evidence, evidence that emanates from the body of a person, is regarded to affect the fairness of the trial if the evidence is unlawfully gathered." Id.  In other words, illegally obtained conscriptive evidence is per se inadmissible pursuant to R v. Stillman.  And because "[c]onscriptive evidence includes confessions," id., Grant's confession that he had a firearm would be inadmissible.

So, why do Canadian legal experts think that the high court will circumscribe the ruling from R v. Stillman?  Well, Stillman was a product of Chief Justice Antonio Lamer's court, a bench which consistently stood up for the rights of the criminally accused.  Conversely, under the leadership of new Chief Justice Beverley McLachlin - who dissented in the Stillman decision - that willingness has been fading fast.    

-CM

Forfeit Victory, Take 4: Supreme Court To Hear Oral Arguments In Giles Case Today

I've written several previous entries (here, here, and here) about Giles v. California, the case in which the United States Supreme Court will decide the contours of the forfeiture by wrongdoing doctrine (I've also addressed the forfeiture by wrongdoing doctrine in a series of posts:  here, here, here, here, here, here, and here).  Well, today is the day that the Supreme Court will hear oral arguments in the case, with a decision expected by late June.  One of the main issues that the Court is expected to resolve is whether the party seeking to invoke the forfeiture by wrongdoing doctrine must establish that the opposing party specifically intended to prevent a prospective witness from testifying or merely that the opposing party caused a prospective witness to be unable to testify, irrespective of intent.

Put another way, "[i]n Crawford v. Washington, 541 U.S. 36, 62 (2004), this Court recognized that the forfeiture by wrongdoing rule “extinguishes confrontation claims on essentially equitable grounds.” The question presented by this case is:  Does a criminal defendant “forfeit” his or her Sixth Amendment Confrontation Clause claims upon a mere showing that the defendant has caused the unavailability of a witness, as some courts have held, or must there also be an additional showing that the defendant’s actions were undertaken for the purpose of preventing the witness from testifying, as other courts have held?"

Personally, I agree with the position of my colleague Ralph Ruebner, who, along with law student Eugene Goryunov, argues that intent is not required in a forthcoming article.  It also bears repeating that an amicus brief has been filed calling for special treatment for statements made by children.  I will be following what transpires in the case and reporting, but the best coverage you're going to find is on Professor Richard Friedman's Confrontation Blog.

-CM

Misplaced Expertise: Indiana Court Makes Seemingly Erroneous Rule 703 Ruling

The Court of Appeals of Indiana's recent opinion in Newbill v. State, 2008 WL 1734897 (Ind.App. 2008), contains a seemingly disastrous oversight.  In Newbill, Lawrence E. Newbill was convicted of the rape of "H.R."  After the alleged rape, H.R. was taken to the hospital and subjected to a ninety-minute examination by Patricia Farrell, a trained and certified sexual assault nurse examiner (“SANE”).  At Newbill's trial, Farrell testified that she was not treating H.R. or obtaining a medical diagnosis, but instead was collecting evidence.  She also testified that, inter alia, 

   •H.R.'s vagina area was "extremely red ... and very irritated;"

   •The area where Farrell observed the irritation was "very painful and had been since" the  intercourse with Newbill, according to H.R.;

   •The area was "more red than normal" and might "very well" reflect "forced sex," sex without the "normal lubrication" of consensual sex;

   •The “whole” vaginal area was more red than normal; the labial area was “very reddened”; and the cervix was also red; and

   • The red and irritated areas indicated to Farrell that H.R. had suffered sexual trauma.

Defense counsel did not object to this testimony at trial, but on appeal he contended, inter alia, that H.R.'s statements to Farrell constituted inadmissible hearsay and that Farrell's testimony concerning those statements (such as in second passage listed above) was improperly admitted at trial.  The Court of Appeals of Indiana first noted that defense counsel was correct that H.R.'s statements did not qualify as admissible statements for the purposes of medical treatment/diagnosis under Indiana Rule of Evidence 803(4)  because of Farrell's admission that she was collecting evidence, not treating or diagnosing H.R.  Indeed, the court found that H.R.'s statements did not qualify for admission under any hearsay exception.

The court, however, found that Farrell testified as an expert witness and noted that under Indiana Rule of Evidence 703, an expert may rely on facts “made known to the expert” in reaching her expert opinion.  It then noted that Farrell relied upon H.R.'s statements in reaching her opinions and concluded that Farrell's testimony regarding H.R.'s account of the sexual act was properly admitted based upon Farrell's status as an expert witness.  So, what was the oversight?  One answer is that the court ignored the second, most important sentence of Indiana Rule of Evidence 703. 

The first sentence of Rule 703 does indicate that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing."  But the second sentence, which the court ignored, indicates that "[e]xperts may testify to opinions based on inadmissible evidence, provided that it is of the type reasonably relied upon by experts in the field."  In other words, the prosecution needed to affirmatively establish that sexual assault nurse examiners reasonably rely upon the hearsay statements of alleged victims in reaching their conclusions. See, e.g., Mills v. Berrios, 851 N.E.2d 1066, 1073 (Ind.App. 2006).  The first problem with the court's opinion in Newbill is that the court never explained whether or how this requirement was met.  In the end, though, I don't think that this omission was a huge deal because I think a good argument could be made that such reliance is reasonable.

The second problem, however, does seem to be a big deal.  While Indiana Rule of Evidence 703 allows an expert to testify about her opinions "based on [inadmissible] material not before the trier of fact, it does not expressly provide a vehicle by which the trier of fact can learn of the underlying material." Commitment of M.M. v. Clarian Health Partners, 826 N.E.2d 90, 95 (Ind.App. 2005).  In other words, while Farrell possibly could have testified about her opinions based upon what H.R. told her, she could not testify, as she did, about what H.R. actually told her. See id. ("M.M. correctly argues such hearsay cannot serve as substantive evidence to support an involuntary commitment.").  Thus, the opinion in Newbill seems to violate the Indiana Rules of Evidence.

(Readers should not that Indiana Rule of Evidence 703 is thus different from Federal Rule of Evidence 703, which provides that "[f]acts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.").

-CM

Another State Of Mind, Take 3: Jean Pierre Orlewicz Found Guilty Of First Degree Murder (And Another "Scarface" case)

I've written twice before (here and here) about the murder trial of Jean Pierre Orlewicz and Alexander Letkemann, who were accused of murdering and beheading Daniel Sorensen.  Well, that trial ended this week, with Letkemann pleading guilty to second degree murder and them testifying against Letkemann, who was found guilty of first degree murder.  There weren't any more interesting legal rulings in the case, but as I noted in my last post, the judge in the case made a pretrial ruling to exclude evidence such as images from "Scarface" that Sorensen posted on his MySpace page.  I noted that I thought that the ruling was correct because any probative value that the images had was substantially outweighed by their prejudicial effect, making them inadmissible under Michigan Rule of Evidence 403 (depending on how defense counsel planned to use the images, they could also have constituted impermissible character evidence).

Well, the First Circuit Court of Appeals recently affirmed a ruling of the United States District Court for the District of Massachusetts that came to the opposite conclusion.  In United States v. Marin, 2008 WL 1069800 (1st Cir. 2008), Antonio Marin was convicted by a jury of possessing a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. Section 924(c).  This conviction came after the DEA used a cooperating witness known as “Gijo” to make a series of cocaine purchases from Marin in the birthplace of basketball (and me), Springfield, Massachusetts.  Simultaneous with the arrest, other DEA agents executed a search warrant at Marin's apartment, where they found 770-775 grams of cocaine, a digital scale, packaging materials, and a loaded .38 caliber semiautomatic handgun with a defaced serial number and a spare clip loaded with .38 caliber ammunition.

The issue at trial, then, was whether Marin possessed the firearm "in furtherance of" his drug trafficking or whether his firearm possession was unrelated to his drug trafficking.  During his opening statement, defense counsel set forth the defense theory that Marin was simply "interested in guns" and that he had a "casual interest" in guns.  The prosecution sought to rebut this argument at trial by introducing something else found in Marin's apartment:  a "Scarface" shadowbox containing a picture of actor Al Pacino portraying a violent drug dealer, with a replica gun, cigar and money under the photo; and a poster of Pacino aiming a machine gun (I would guess it was this shadowbox).  Defense counsel did not object to this evidence at trial, but he claimed on appeal that the evidence was inadmissible, either as irrelevant under Federal Rule of Evidence 401 or because its probative value was substantially outweighed by its prejudicial effect under Federal Rule of Evidence 403. 

The First Circuit, however, found that there was no plain error by the district court in admitting the evidence.  Instead, it found that the government properly "used the evidence solely to rebut the 'casual interest' argument because of the reference made by the defense."  The First Circuit "agree[d] with the defendant to the extent that, in some circumstances, the government's reliance on the 'Scarface' evidence might be improper."  In Marin, however, the court found that "there was some probative value to the evidence, that of rebutting a defense theory which had been previewed to the jury in the opening statement, that relied on similar evidence."  The court finally found that "[i]n view of the evidence's legitimate use and in light of the other evidence in the case, [it could] not say that the danger of unfair prejudice substantially outweighed the probative value of the evidence."

Really?  If I were a judge and presented with a "Scarface" shadowbox found in a defendant's apartment, here's what I might think:  (1) the defendant is a fan of the movie (many are); (2) the defendant is a fan of director Brian De Palma (maybe, unlike me, he could have even sat through all of "Redacted"; (3) the defendant is a fan of actor Al Pacino (maybe if he weren't incarcerated, he would have been one of the brave few to check out the critically reviled "88 Minutes" this weekend); (4) the defendant is a fan of actress MIchelle Pfeiffer (maybe he would have even Netflixed the direct-to-DVD "I Could Never Be Your Woman"); (5) the defendant is a fan of screenwriter Oliver Stone (maybe he could have even tolerated "Alexander"); and/or (6) the defendant is a fan of gangsters/gangster movies in general (so, he would likely have checked out Michael Mann's forthcoming "Public Enemies," and he almost certainly would have caught De Palma's proposed "The Untouchables: Capone Rising") 

And that's pretty much it.  Okay, if you twisted my arm, I might say that the shadowbox reveals that the defendant had a casual interest in guns, which was Marin's defense.  But does it reveal a more than a casual interest in guns, as the First Circuit concluded?  In the immortal words of John McEnroe, "You cannot be serious!"  And if you are, then the NRA should be recruiting much more actively on college campuses because there are thousands of students across the country with Tony Montana posters on their dorm walls just waiting to become the next Charlton Heston.

-CM

Penn State Rape Case, Take 3: All Charges Dropped Against Austin Scott

I've written twice before (here and here) about Penn State running back Austin Scott, who is charged with raping a 22 year-old fellow student.  In fact, just yesterday I wrote about the judge's decision to allow the alleged victim to be questioned about a prior false rape accusation, a decision I characterized as incorrect under rape shield law precedent.  Well, as a result of that ruling, the Commonwealth of Pennsylvania withdrew all charges against Scott, with a press release indicating:  "In light of the likely admission of evidence we believe is irrelevant, as officers of the court, it is our position that there is no reasonable likelihood the commonwealth can meet its burden of proof."

-CM

He Deserves A Break Today, Take 4: Judge Throws Out Alton Logan's Conviction After New Evidence Is Presented

I've written three times before (here, here, and here) about Alton Logan, the Illinois man who has been incarcerated for 26 years for a robbery/murder at a McDonald's restaurant despite another man, Andrew Wilson, confessing to the crime.  The problem, however, was that the public defenders to whom Wilson confessed felt that they were bound by the attorney-client privilege not to disclose Wilson's confession until, as per Wilson's agreement, after his death.  When Wilson recently died, the attorneys disclosed Wilson's confession, setting the stage for a legal battle over whether the confession would be admissible and whether Logan's conviction would be thrown out.  That battle ended yesterday as I have claimed that it should:  with Alton Logan being set free.

At a hearing at the Criminal Courts Building in Chicago, Wilson's confession was presented.  Other evidence included:

     -former McDonald's employee Gail Hilliard testifying that as she was about to make a milkshake for a drive-through customer on the night of the robbery-murder, she saw a shotgun-toting man enter the restaurant, whom she identified as Wilson from a photo (in 1999, Hilliard had previously identified the man as Wilson to an attorney but did not make a similar statement to police);

     -Joseph Prendergast, a semi-retired teacher who tutored Wilson in prison for several months in 1982 and 1983, testified that Wilson told him at the time that he had shot a shotgun inside a McDonald's; and

     -Alvin Thompson, a McDonald's security guard wounded the night of the shooting  identified Logan as the gunman.

This evidence led Judge James Schreier to throw out Logan's conviction and order a new trial because this new evidence made it "a reasonable probability" that Logan would be acquitted if prosecutors try him again.  The Illinois  attorney general's office, which is prosecuting the case, will likely soon make the decision whether to go to trial again.

-CM

Penn State Rape Case, Take 2: Judge Rules That Prior False Rape Allegation Will Be Admissible In Austin Scott Trial

Previously, I posted an entry about Penn State running back Austin Scott, who is charged with raping a 22 year-old fellow student.  As I noted, it was unearthed that Scott's accuser had made similar allegations against a student at Moravian College in Bethlehem, Pennsylvania in 2003; the student-defendant in that case was found "not guilty" of rape, and the jury deadlocked on lesser charges.  I indicated at the time that Scott's attorney asserted that he would seek to use this prior allegation at Scott's trial to undermine the alleged victim's allegations, and I concluded, "I don't see how Scott's attorney could be correct."

Well, there was one key fact about the prior allegation about which I was unaware, which has led Center County Judge Thomas King Kistler to rule that Scott's accuser can be questioned about the prior allegations.  And the fact was that the alleged victim actually admitted under oath that she lied about the 2003 incident and said that the encounter was "mostly consensual."  But, you know what?  I still don't think that it should have made the prior allegations admissible.

Rape shield laws were enacted because defense counsel in rape cases would typically call all of the victims' other sexual partners in an attempt to prove to jurors that the victim was promiscuous and thus likely consented to the sex at issue.  Of course, this practice was pernicious, which led to the enactment of rape shield rules, which prevent defense counsel from inquiring into and/or proving other sexual acts by the victim.  Pennsylvania's rape shield rule is contained in P.A. C.S. Section 3104.  However, a per se rape shield rule could violate the constitutional rights of an accused, which is why there are exceptions to rape shield laws.  One such exception, which is typically used when an alleged victim has made prior false rape accusations, allows for a defendant to prove sexual acts of an alleged victim if the evidence's exclusion would violate the accused's Constitutional rights.  As I previously noted, Pennsylvania actually does not have such an exception, but it has crafted out such an exception in its case law.

This, however, leaves the question of whether this exception applies to the Scott case.  I would argue that it does not.  Let's look at the Pennsylvania case, Commonwealth v. Boyles, 595 A.2d1180 (Pa.Super. 1991).  In Broyles, the court cited to a previous case, Commonwealth v. Black, 487 A.2d 396 (Pa.Super. 1995), and construed it as follows:

     "In Black, the defendant's daughter accused him of raping her. The defendant offered testimony concerning his daughter's consensual sexual relationship with her brother who had left home and separated from the family after violent arguments with the defendant. The defendant offered this evidence to show bias on the part of the daughter against him and a motive to seek retribution by false accusation. Under those circumstances, the Court held that the Rape Shield Law could not be used to exclude relevant evidence showing a victim's bias or attacking his or her credibility." (emphases added)."

In other words, there is an exception the Pennsylvania rape shield rule when the alleged victim has made a prior false rape accusation which is relevant to prove a specific bias/motive to fabricate rape charges against an accused in a later case.  What happens, however, when an alleged victim makes a prior false rape accusation which is unrelated to a later rape case?  Does the Black exception apply there as well?  According to the court in Broyles:

     "Although the court in Black stated that evidence attacking the victim's credibility could not be excluded under the Rape Shield Law, the attack on the victim's credibility in that case was based on the victim's possible bias against and hostility toward the defendant and her motive to fabricate. In later cases, this Court has applied the holding of Black only where the victim's credibility was allegedly affected by bias against or hostility toward the defendant, or the victim had a motive to seek retribution....Moreover, this Court has determined that, under Section 3104(a) of the Rape Shield Law, testimony regarding the victim's claims of past sexual attacks is inadmissible."

In other words, evidence of prior false rape allegations is inadmissible in this "unrelated" situation, which is the situation presented by the Scott case.  Thus, pursuant to the ruling in Broyles, which is consistent with other case law in Pennsylvania and across the country, the alleged victim's prior false allegation should have been inadmissible, and I'm not sure why Judge Kistler ruled otherwise.  We will have to wait at least a few days to see whether the prosecution's appeal of the ruling is successful because the case has been delayed at least until next week, despite the claims of Scott's attorney that the delay will irreparably harm Scott in the upcoming NFL Draft

-CM      

St. Lucie Sound, Take 2: Federal Prosecutors Claim 911 Call Unrelated to Quadruple Homicide

Previously, I blogged about the case against Ricardo Sanchez and Daniel Troya, who were charged with murder in connection with a quadruple homicide.  That quadruple homicide consisted of the shooting deaths of Jose Escobedo, his wife, Yessica, and two young children in the predawn hours of October 13, 2006.  As I noted, the prosecution had produced a toll ticket bearing the latent (finger)prints of Sanchez; the ticket was collected at the Okeechobee turnpike exit at 3:02 a.m. on October 13, 2006, with the exit being fifty miles from the scene of the crime.  Defense counsel had claimed that the prosecution also had a tape of a 911 recording that was an actual recording of the murders as they happened at 3:10 A.M.  As I noted, if this claim were true regarding the recording, it was clearly exculpatory, and the prosecution had an obligation to disclose it to defense counsel.

In a motion filed on Tuesday, however, federal prosecutors responded that this claim was not true and that they would not produce the recording. Instead, according to prosecutors, "no evidence links that call to this case."  The prosecutors claim that the call, which came into the FHP Regional Communications Center in Lantana could have come from anywhere on the turnpike between Wildwood and Homestead.  It will be interesting to see whether defense counsel responds with evidence that the call was in fact linked or whether the previous claims were the proverbial shot in the dark.

-CM

Life's A Beach, Take 2: Why The Transcript Of Barry Beach's Confession Possibly Should Have Been Inadmissible At His Murder Trial

Previously, I blogged about the case of Barry Beach, the Montana man convicted of the 1979 murder of eighteen year-old high school valedictorian Kim Nees on the Fort Peck Indian Reservation in Montana.  Some readers may have seen the two hour Dateline NBC special on the case; those who missed it can watch it through a link provided on the Montanans For Justice website.  My previous post contains a few factual details about the case, and I will now give a very brief recounting of the facts that are relevant to my point in this post, which is that it is questionable to me whether the centerpiece of the prosecution's case -- Barry's confession to Louisiana authorities -- should have been admissible against Beach.  The facts are as follows:

     -Nees was found dead in June 1979;

     -On January 4, 1983, Barry Beach was arrested by Louisiana authorities for contributing to the delinquency of a minor;

     -Louisiana authorities, including Detective Jay Via, thereafter interrogate Beach with regard to the abduction murders of three young Louisiana women;

     -The authorities learn that Beach was from Montana, learn about the unsolved Nees case, and begin questioning Beach about Nees' death as well;

     -Beach confesses to the murders of the three young Louisiana women and to the murder of Nees at the Ouachita Parish Sheriff's Department;

     -The confession is tape recorded, and a secretary creates a typewritten copy of the confession, which Detective Via later reviews and corrects for accuracy;

     -Louisiana authorities later determine that Beach did not commit the Louisiana murders, but they extradite him back to Montana to stand trial for the Nees murder;

     -two to three months later, Lieutenant Alan Warren Nall, the custodian of records at the Ouachita Parish Sheriff's Department, erases the tapes of Beach's confession;

     -because the tapes were erased, Montana prosecutors use the typewritten copy of Beach's confession as the primary evidence leading to his murder conviction;

     -Beach launches several challenges to the verdict, the latest of which was rejected a few weeks ago, with more appeals to come.

Now, those supporting Beach might dispute some of these facts, and they have made many arguments in support of his case, some of which can be found here and here.  On the other hand, the State of Montana has many arguments as to why Beach should have been convicted, some of which can be found here.

Let's, however, ignore those other arguments and any dispute about the above facts and instead ask:  If the above facts are correct, should the typewritten copy of Beach's confession have been admissible at his trial (and will it be admissible if he is granted a new trial)?  Well, pursuant to Montana Rule of Evidence 1002, "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided by...these rules...."  In other words, to prove the content of the recordings of Beach's confession, the original recordings were required, except as otherwise provided by the Montana Rules of Evidence.

Pursuant to Montana Rule of Evidence 1004(1), "[t]he original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith."  So, if Nall erased the recordings in "bad faith," the typewritten copy of Beach's confession was inadmissible; if he did not destroy it in "bad faith," the typewritten copy was admissible.

Now, let's look at the deposition of Nall to see why he erased the tapes (look at page 25 of this document):

     -Q.  Okay.  Now, could you tell me where these tapes are today?

     -A.  I disposed of them.  I erased all tapes.

     -Q.  Okay, and would you explain to me the reason why you erased these tapes in this investigation?

     -A.  Originally, Barry Beach was arrested on a Fugitive from Justice warrant from Montana and in the process, in the process of our Court system [?] is then determined whether to be extradited back to Montana or be re-leased.  Now, once it has gone through our Court system and a disposition is put on my complaint stating what the Court so ordered, and if it is so ordered then that he be returned to Montana or if he is ordered released, that is a disposition of clearing or final disposition of that complaint.

     -Q.  Okay, so it is my understanding that the tapes were erased after Barry Beach had been extradited back to the State of Montana?  Is that correct?

     -A.  That is correct.

     -Q.  Okay.  Were you aware of an investigation going on with Barry Allen Beach concerning a Contributing to the delinquency of a juvenile which pre-empted this particular investigation?

     -A.  No.  Not to my knowledge.  It's possible it could be.

Now, let's look at Via's testimony from Beach's clemency hearing (I'm not sure if there's a copy of this testimony publicly available, but I have a copy, and the relevant testimony is on pages 691-692):

     -Q.  What happened with the tape [of Beach's confession]?

     -A.  It was erased.

     -Q.  And did you erase the tape?

     -A.  Absolutely not.  Liuetenant Alan Nall, who was the custodian of record -- when I went -- and it was notified we were having a motion to suppress in this case.  I went upstairs to acquire not only the tapes of the recorded confession but of Carolyn Beach and those other people involved and couldn't find them.  And I went to Lieutenant Nall and asked him where the tapes were, and he said he had erased them.  And I went livid.  I said, "What do you mean you erased these tapes?"  He said, "I erased them."  He said, "They weren't our tapes; they were another state's tapes.  I needed the tapes."  And he erased the tapes.  And I'm serious, I went into a total -- I really, really got mad.  As a matter of fact, that's one of the reasons he was subsequently removed as being custodian of record.  The minute I learned that, I contacted Mr. Racicot, who was with the state attorney's office, to let him know that the tapes had been erased and that they were erased by our custodian of record."

So, that leaves the question:  Was this bad faith?  And my answer is that I'm not sure.  I actually addressed this point in my recent article, Even Better than the Real Thing, where I noted that courts have made it difficult for the opponents of secondary evidence -- such as the transcript -- to prove that the proponent lost the original in bad faith.  And two of the cases I cited lend support to the State of Montana.  In Estate of Gryder v. C.I.R., 705 F.2d336, 338 (8th Cir. 1983), the court found that IRS employees who negligently destroyed original tax documents because they thought that all litigation involving them was completed did not act in "bad faith."  And in United States v. Workinger, 90 F.3d 1409, 1415 (9th Cir. 1996), the court found that an attorney who recorded over a tape recording in the ordinary course of business did not destroy the original in "bad faith."

Beach supporters, however, have a good argument that Beach's case is different from either of these two cases.  Unlike in Gryder, Nall had no reason to believe that litigation involving Barry Beach was over; in fact, Nall's deposition indicates that he was not even aware of the Louisiana charges against Beach and was only aware of the Montana charges against Beach which led to his extradition.  Thus, Nall seemingly had every reason to believe that the Montana case to which the recorded confession related was ongoing based upon his extradition.  Furthermore, unlike in Workinger, Nall's destruction of the tapes was not done in the ordinary course of business (although Nall claims the contrary), but instead was a manifest error which led to Nall being removed from his position as custodian.  Beach supporters could argue that his case is more similar to cases such as Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 128 (S.D. Fla. 1987), where the court found that an employee of the defendant destroyed original documents in "bad faith" when he wilfully destroyed them while knowing that litigation involving them was pending.

In other words, it's a close call how a court would rule on this issue, and it appears to me that it's an argument that Beach's attorneys never raised at his initial trial.  In other words, if Beach is granted a new trial, it's an argument his team should definitely raise, and based upon the centrality of his confession to his conviction, a ruling excluding the transcript could very well be fatal to the State's case. It is important to note that Via could still testify about his recollection of Beach's confession because he had independent personal knowledge of the confession that was not dependent upon the recordings (he heard Beach confess); however, it seems to me that the typed transcript of the confession is much more compelling evidence, meaning that its exclusion would be very damaging to the State's case on possible re-trial.  It will certainly be interesting to see if and how this and other issues play out for Beach

-CM      

    

Article of Interest: Professor Andrea Dennis' Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence

University of Kentucky College of Law Professor Andrea Dennis recently published her fascinating article, Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, in the Columbia Journal of Law & the Arts (31 Colum. J.L. & Arts 1 (2007)).  In the article, Dennis notes that courts almost always allow for the admission of defendant-authored rap music lyrics as substantive criminal evidence.  Dennis contends that such rubber stamped decisions are (1) problematic because they allow the government to obtain a stranglehold on such cases, and (2) fallacious because they presume that criminal defendant-lyricists are depicting true-life, self-referential stories in their lyrics.  Dennis counters that the assessment of the admissibility and evidentiary utility of rap music lyrics requires awareness and understanding of the complexities of the art form and posits that the status quo can be ameliorated by having courts refocus their analytical perspective and allowing defendants to offer expert testimony concerning the composition of rap music lyrics to both judges and jurors.

In Part I, Dennis begins by citing a plethora of state and federal cases from across the country where courts have admitted defendant-authored rap music lyrics for a variety of purposes (cases include Bryant v. State, 802 N.E.2d 486 (Ind. Ct. App. 2004), United States v. Wilson, No. 05-13927, 2006 WL 3083968 (11th Cir. Oct. 31, 2006), and the Taquan Neblett music store murder trial).  Dennis then proceeds to consider how judges find these lyrics admissible:  (1) as admissions of party-opponents pursuant to Federal Rule of Evidence 801(d)(2)(A) and state counterparts; (2) as "relevant" under Federal Rule of Evidence 401 and state counterparts as confessions or direct evidence of intent/motive; (3) as "other act" character evidence under Federal Rule of Evidence 404(b) and state counterparts, and (4) as non-violative of the Rule 403 balancing test based upon finding that the lyrics are prejudicial but not unfairly prejudicial.  Dennis then concludes Part I by arguing that such admissibility rulings are found upon three assumptions, all of which fail to treat rap lyrics as an art form:  (1) that understanding and interpreting rap lyrics is not a matter requiring specialized knowledge/expert testimony; (2) that rap lyrics should be literally understood, and (3) that rap music lyricists depict accurate, truthful, and self-referential narratives.

In Part II, Dennis claims that there compelling reasons to distrust these assumptions.  She begins by tracing the history of rap from its street roots to the current corporate boardroom commercialization.  Dennis claims that this commercialization has had a double edged impact:  On the one hand, it has resulted in artist images and lyrical narratives not necessarily being truthful, and on the other, the image that predominates rap music in the public eye is that of the stereotypical gangster, thug, outlaw, or criminal.  She next notes that the rap tenet of "Keep It Real" forces artists to deny that their images/lyrics are manufactured rather than authentic.  Dennis concludes Part II by indicating that, as with all art forms, rap lyrics rely on poetic/artistic devices which make it so that we should not understand them literally.  These include the use of: (1) not only personal, but also collective, knowledge in crafting lyrics; (2) metaphors and boasts, and (3) narratives, which contain facets such as role playing.

Based upon these arguments, in Part III, Dennis calls for a reconsideration of the utility of rap music lyrics as criminal evidence.  While courts treat defendant-authored rap music lyrics as inherently inculpatory, Dennis claims that when viewed in light of social constraints and artistic conventions, it is evident that rap music lyrics may falsely or inaccurately depict the occurrence of events.  She contends that rap music lyricists are not in the category of non-fiction writers but instead are akin to fiction writers, such as novelists and screenwriters.  Next, while courts treat such lyrics as permissible "other act" evidence under Federal Rule of Evidence 404(b), Dennis claims that prosecutors are impermissibly using them as propensity evidence and cites a passage from Prosecuting Gang Cases:  What Local Prosecutors Need to Know, which is inculpatory.  It exhorts prosecutors to show that "the real defendant is a criminal wearing a do-rag and throwing a gang sign.  Gang evidence can take a prosecutor a long way toward introducing that jury to that person.  Through photographs, letters, notes, and even music lyrics, prosecutors can invade and exploit the defendant's true personality." (my emphasis added).  Dennis closes Part III by contending that defendant-authored rap music lyrics are unfairly prejudicial because they play on the biases of jurors against rap music.

In Part IV, Dennis concludes by presenting a two pronged approach.  First, rather than reflexively admitting  defendant-authored rap music lyrics as literal confessions, judges should begin their analysis from one or more viewpoints:  (1) from the point-of-view that rap music lyrics are metaphorical rather than lyrical; (2) from the point-of-view that rap music lyrics are fictional, abstract, and entertaining representations of life rather than truthful or accurate, and/or (3) that the information revealed or events depicted in rap music lyrics are not self-referential.  Dennis then advocates judges holding evidentiary hearings outside the presence of the jury where they determine whether such lyrics are relevant and admissible by resolving seven questions, ranging from whether the lyrics were written before or after the charged offense to whether the lyrics are internally consistent and coherent.  The second prong involves allowing defendants to offer expert witness testimony on the composition of and societal response to rap music lyrics, which Dennis thinks is consistent with Federal Rule of Evidence 702 and state counterparts.

I highly recommend the article for both its readability and the nuanced manner in which it comprehensively addresses an interesting issue which judges to this point have failed to give due consideration.  I asked Professor Dennis a couple of questions in response to the article, and she graciously provided the following responses:

What led you to write the article?

Broadly speaking, I am curious about the ways in which hip hop culture – including music, fashion, language, and persona – impact the criminal justice process.  Why hip hop culture?  Primarily because hip hop artists frequently reflect their experiences and perceptions of the criminal justice system in their music.  Many hip hop artists – whether prominent or aspiring – come from over-policed communities ravaged by crime, violence, and mass incarceration.  As well, a fair number of artists have experienced the criminal justice system themselves or through family, friends, and neighbors.  Thus, I believe hip hop provides a contemporary cultural text allowing for examination of the authority, efficacy, and equality of the criminal justice process by those communities significantly affected by the criminal justice process.

Having been a trial attorney in an earlier life, I particularly focused my attention on the impact of hip hop culture on the prosecution of criminal cases.  When I began researching, I hypothesized that I would find that prosecutors were using a defendant’s consumption or appreciation of rap music lyrics as criminal evidence.  Such use would be akin to cases admitting evidence that a defendant watched the popular movie Natural Born Killers or listened to heavy metal music before engaging in violent crime, or that a defendant consumed child pornography before engaging in child sex crimes. 

My research did reveal cases in which evidence of consumption of rap lyrics was used.  What I also found unexpectedly, however, were cases in which defendant-authored rap music lyrics were used.  As I indicate in the article, I did not find this use with other musical genres.  Additionally, I did not unearth cases utilizing other defendant created art forms.  The most closely related scenarios involved political speech or diary entries authored by defendants, and even those cases were rare.

By now, I felt like I was on to something.

Meanwhile, two rather serendipitous events occurred.  First, when talking with a colleague, I learned of the then on-going Kentucky capital prosecution of Taquan Neblett in which the Commonwealth had sought to admit the defendant’s rap lyric writings.  Second, I came across the federal capital prosecution in New York of Ronnell Wilson in which the prosecution also admitted defendant’s rap lyric writings.  I talk about both prosecutions in the article. 

Oddly enough, my research was foreshadowed years earlier.  In the early 2000s, while working in the Maryland Federal Public Defender Office, I first became aware of this litigation tactic.  Another attorney in the Office was representing a client charged with capital crimes.  In discovery, the prosecution produced a CD that included rap songs that the client had written and produced.  The CD could readily be labeled as gangsta’ rap.  My expectation was that the government would use the evidence in the sentencing phase, if the case got that far.  At the time, the strategy of using this type of evidence seemed isolated and legally tenuous.

At this point in my research, it was clear to me that the strategy was not isolated and was often successful.  I was particularly concerned about this issue because it is linked to another area of research interest. That is, the way in which law enforcement officers are routinely permitted to opine in suppression hearings and trials about such topics as drug culture and terminology, life in high-crime communities, and gang culture.  As with those topics, law enforcement officers often testify about what rap music lyrics mean and how they evidence criminal acts.  Shouldn’t such testimony be closely regulated and, if admitted, how best can defendants rebut such evidence?

What are your plans for future scholarship?

In footnotes 3 and 11 of the article, I do raise a number of issues I think worthy of future exploration.  As well, as I stated, I am interested in the issue of law enforcement “expert” testimony.   At present I am researching the law enforcement and prosecution practice of using children as criminal informants (i.e., “snitches”).  I expect to come back to the issue of hip hop culture and the criminal justice process, although I am not decided on the particular issue.

-CM

I Drink Your Milkshake!: Milkshake Murderer's Attorney Argues Hong Kong Court Improperly Allowed Hearsay Testimony

A strange case from Hong Kong reveals that the region is dealing with the same evidentiary issue set to be heard soon by the United States Supreme Court.  In 2003, American housewife Nancy Kissel allegedly fixed her husband a strawberry milkshake laced with the "date-rape drug" Rohypnol in their luxury Hong Kong apartment.  She then allegedly bashed in his head with a metal ornament, wrapped his dead body in a carpet, and ordered a maintenance crew to haul it away to a storage space.  At her 2005 trial, Kissel claimed that she acted in self-defense, but the court disbelieved her, and she was convicted of murder and sentenced to life imprisonment.  Part of the evidence used to convict Kissel consisted of the testimony of a witness who claimed that the husband told him soon before his death that he thought his wife was trying to kill him.  Now, Kissel's attorney, Gerald McCoy, has claimed, inter alia, that the husband's statements were inadmissible hearsay and that the trial court thus erred in allowing the witness to testify about them, necessitating a reversal.

If all of this sounds somewhat familiar to some of you, it might be because you watched 48 Hours Mystery last night, which dealt with the Mark Jensen case, which I have blogged about before (here, here, and here).  That case involved the death of Mark Jensen's wife and the question of whether a note that the wife gave to a neighbor indicating that Mark should be the first suspect if she died was admissible in his murder trial pursuant to the forfeiture by wrongdoing doctrine, an exception to the rule against hearsay.  The Wisconsin court held that the letter was admissible, but other courts have construed the forfeiture by wrongdoing doctrine more narrowly, finding it inapplicable to the statements of a murder victim in the defendant's trial for that victim's murder.  The United States Supreme Court is set to soon decide whether the doctrine can be given the broader reading when it hears Giles v. California.

It will be interesting to see whether the Hong Kong court finds that the husband's statements were inadmissible hearsay or whether they met an exception similar to the forfeiture by wrongdoing doctrine.  I don't have much familiarity with Hong Kong law, but according to Anthony Upham, Hong Kong Evidence Casebook, 35 Hong Kong L.J. 529, 530 (2005), Hong Kong does have a rule against hearsay which, like the American rule against hearsay, is subject to several exceptions.

-CM