EvidenceProf Blog

Fight Or Flight?: Mississippi Court Approves Use Of Flight Instruction WIthout Much Analysis

The recent opinion of the Court of Appeals of Mississippi in Mask v. State, 2008 WL 2498236 (Miss.App. 2008), is what I regard as an incomplete decision.  In Mask, on February 29, 2004, Charles Bascomb and his son, Jason Zubke, were parked in a car on County Road 306 in Alcorn County, Mississippi when Mask approached the car and shot Bascomb in the back. Bascomb died five days later, and for twenty days thereafter, Mask evaded numerous attempts for his arrest. Mask was eventually arrested in Alcorn County, whereupon he gave two conflicting accounts of the shooting to Investigator Michael Beckner.  According to Mask's first account, he shot Bascomb when Bascomb and he were fighting over a gun. During a second interrogation, Mask claimed self-defense, alleging that he had to shoot Bascomb or Bascomb would shoot him.

At Mask's murder trial, Mask did not raise the defense of self-defense (indeed, he presented no witnesses), and Beckner testified concerning both of Mask's accountings of the shooting.  The court thereafter accepted the state's jury instruction, which informed the jury that Mask's evasions from the police in the aftermath of the shooting were circumstantial evidence of a guilty state of mind.  After Mask was convicted of murder, he appealed, claiming that the trial court erred in giving this instruction.

Mask correctly noted that a jury instruction on flight is appropriate only where the flight is unexplained and not where there might have been another reason beyond guilt that precipitated a defendant's flight.  He then cited to the Supreme Court of Mississippi's opinion in Tran v. State, 681 So.2d 514, 519 (Miss. 1996), in which the defendant claimed self-defense and that he fled from the scene of the murder for fear of retaliation, and the court held that:

     "where the defendant is arguing self-defense, a flight instruction should be automatically ruled out and found to be of no probative value. A flight instruction will have particular prejudicial effect in a case where self-defense is argued. Where the person against whom self-defense has been exercised...flight seems logical and necessary....To suggest and highlight, through the sanction of a court granted instruction, that the defendant's flight was possibly an indication of guilt suggests that the court does not accept the self-defense argument."

The Court of Appeals, however, found Tran to be distinguishable.  One distinguishing ground was that the defendant in Tran explained that he fled because he was trying to avoid retribution, whereas there was no evidence that Mask fled because he feared retribution.  Based upon the above cited passage from Tran, though, this seems to be an irrelevant distinction because the Court in Tran held that a flight instruction is automatically inadmissible in cases where defendant argues self-defense, without any mention of a need for a fear of retaliation (altough I don't necessarily agree with such a broad holding).

The second ground was that the defendant in Tran actively pursued the defense of self-defense, whereas in Mask, the only evidence of the possibility of self-defense came from Investigator Beckner's testimony regarding what Mask told him during the two interrogations.  To me, this provided a legitimate reason for the court in Mask to depart from Tran, but keep in mind that Tran merely said that the flight instruction is per se inadmissible when the defendant argues self-defense.  To me that leaves open the (strong) possibility that a court should engage in a somewhat rigorous analysis of whether a flight instruction is proper when there is evidence that a defendant acted in self-defense, even when the defendant himself doesn't argue self-defense.  Instead, the court in Mask merely found that Tran was inapplicable and thus curtly concluded that the flight instruction was properly given.

-CM    

I'm So Excited: Court Of Criminal Appeals Of Texas Finally Agrees With My "Subsequent Startling Occurrence" Formulation Of The Excited Utterance Exception

A few years ago, I wrote the article, A Shock to the System:  Analyzing the Conflict Among Courts Over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49 (2005).  The basis for the article was a memorandum I wrote for the Justices of the Supreme Court of Virginia asking them to deny cert in Esser v. Commonwealth, 566 S.E.2d 876 (Va. Ct. App. 2002).  In Esser, a mentally and physically challenged nineteen-year-old was told by her mother that she was being returned to her aunt's house.  The girl began to cry hysterically and told her mother that her aunt's live-in boyfriend raped her and that she feared that she might be pregnant.  The trial court found that the girl's statements were admissible as excited utterances, the Court of Appeals of Virginia affirmed, and the Virginia Supremes denied cert, agreeing with me that the statements constituted excited utterances.

In doing research on the matter, however, I found that several courts came to the opposite conclusion, with the majority of those courts being Texas state courts.  For instance, in Mosely v. State, 960 S.W.2d (Tex. App. 1997), a three-year-old girl lived with her step-grandmother and frequently visited her father.  She was allegedly sexually assaulted by her father on several of these visits.  In the week before a visit with her father, the daughter "became agitated and 'panicky' at the prospect of returning to visit [her father]," crying and claiming that he had hurt her.  The court found that these statements did not constitute excited utterances because "[t]he 'excitement' experienced by the declarant must be continuous between the event itself and the statement describing it."

In my article, I attacked Mosley and similar cases, noting that the the key to excited utterances is that they are made spontaneously while under the stress of some startling occurrence; there is no need that they be contemporaneous with the initial occurrence itself.  Also, unlike some of the other exceptions derived from res gestae, excited utterances do not derive their reliability from the fact that the original startling occurrence is fresh in the memory of the declarant.  I thus argued that a subsequent startling occurrence can form the predicate for an excited utterance about an earlier startling occurrence when the subsequent occurrence rekindles the original stress of the underlying occurrence, such as when an alleged victim is confronted with the prospect of being returned to her abuser.

Well, it looks like on Wednesday, the Court of Criminal Appeals of Texas, Texas' highest court for criminal cases, finally agreed with me in McCarty v. State, 2008 WL 2512818 (Tex.Crim.App. 2008).  In McCarty, Andrew Tyrone McCarty was convicted of two counts of indecency with his five-year-old step-daughter.  One of the witnesses against McCarty was the complainant's grandmother, who testified over McCarty's objection that when the complainant's uncle tickled her, she began to cry and said, "Don't do that. I don't like being touched by boys and men no more. Andrew pulled up my blouse and was tickling my ribs and touched me."  After being convicted, McCarty appealed, with his appeal eventually reaching the Court of Criminal Appeals of Texas.

The court noted that the excited utterance exception contained in Texas Rule of Evidence 803(2) allows for "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." to be admitted as an exception to the rule against hearsay.  The court the found that "under the excited-utterance exception, the startling event may trigger a spontaneous statement that relates to a much earlier incident" and affirmed McCarty's conviction.

So, there you have it.  In any future criminal case, in Texas, a statement triggered by a subsequent startling occurrence should be able to from the predicate for an excited utterance about an earlier crime.

-CM

Unsettling Decision: D.C. Court Finds Resolution Meeting Doesn't Trigger Rule 408 In IDEA Action

The recent opinion of the United States District Court for the District of Columbia in Friendship Edison Public Charter School Chamberlin Campus v. Smith, 2008 WL 2513900 (D.D.C. 2008), seems to me to contain a woefully misguided interpretation of Federal Rule of Evidence 408.  Here were the basic facts of Smith:

Friendship Edison Public Charter School ("FEPCS"), is a D.C. public charter school which elected to be its own Local Education Agency ("LEA") pursuant to the Individuals with Disabilities Education Act ("IDEA"), for special education issues.  Meanwhile, Ebony Smith is the legal guardian of L. S., her ten-year old son, who attended FEPCS during the 2004-05 and 2005-06 school years.  In January 2005, Smith submitted to FEPCS a written request to have L.S. evaluated for eligibility to receive special education services.  On July 15, 2005, Smith filed an Administrative Due Process Complaint alleging that, inter alia, FEPCS failed to timely evaluate L.S., and requested independent evaluations and compensatory education.

On July 28, 2005, FEPCS sent a letter to Smith requesting consent to evaluate L. S., but never received a response, and the parties later convened for a "resolution meeting" on August 2, 2005. It was undisputed that during the resolution meeting, FEPCS informed Smith that if she consented, the requested evaluations would be completed within thirty days and a Multi-disciplinary Team (“MDT”) eligibility meeting for L.S. would be conducted.  FEPCS also informed Defendants that if the evaluations were not completed by September 2, 2005, FEPCS would fund independent evaluations for L.S.  Smith, however, rejected the offer and continued to request independent testing for L.S., leading to a Due Process Hearing, where Smith's counsel moved to exclude documentary evidence regarding the resolution session and FEPCS' offer of settlement from the administrative record.

The Hearing Officer agreed and refused to allow into evidence the notes from the resolution meeting or any testimony regarding the resolution meeting, stating that the resolution session was a settlement discussion. The Hearing Officer thereafter found that FEPCS' "actions, or inactions...impeded the student's right to a [free appropriate public education]" and ordered FEPCS to fund independent evaluations.  Instead, FEPCS appealed to the United States District Court for the District of Columbia.

And that court relied upon its prior opinion in Davis v. District of Columbia, 2006 WL 3917779 (D.D.C. 2006), in finding that the Hearing Officer erred.  In Davis, the court found that:

Rule 408 does not apply in this case because the resolution meeting was not a settlement negotiation.  Section 1415 of IDEA states that the purpose of a resolution meeting is to resolve the complaint before the hearing; however, no provision of that statute suggests that the information disclosed during the meeting will be kept confidential....The Defendants never held the resolution meeting out as a settlement negotiation, and Plaintiff had no reasonable expectation that believe the resolution meeting would be confidential."

There is, however, a gaping hole in the court's logic.  And that hole is that Federal Rule of Evidence 408 never mentions the word "settlement negotiation."  Here is the entire text of Rule 408:

     "(a) Prohibited uses.—Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

          (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

          (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

     Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution."

In other words, the court should have been focused on whether FEPCS offered or promised to furnish a valuable consideration in attempting to compromise Smith's claim.  And isn't that exactly what FEPCS did?  It offered to complete the requested evaluations by or certain date or fund independent evaluations.  And according to the court and Section 1415 of IDEA, the purpose of the "resolution meeting" was to resolve Smith's complaint. Thus, the court should have found that FEPCS' offer was inadmissible under Federal Rule of Evidence 408.  See, e.g., United States v. Arias, 431 F.3d 1327 (11th Cir. 2005).   

Furthermore, even if the court was correct in finding that Federal Rule of Evidence 408 applies solely to "settlement negotiations," its reasoning for why the "resolution meeting" was not a "settlement negotiation" would be unavailing.  It focused on the fact that there was no expectation of confidentiality in the meeting, but as I have noted, this factor is irrelevant to the Rule 408 calculus.

-CM

Mississippi Burning: Court Of Appeals Of Mississippi Makes Bizarre "Harmless Error" Ruling In Re-Cross-Examination Case

The recent opinion of the Court of Appeals of Mississippi in Ronald "Rudy" Moore a/k/a Ronald Moore v. State of Mississippi, 2008 WL 2498240 (Miss.App. 2008), contains both an interesting discussion about the different Constitutional footings of cross-examination and re-cross-examination and what I conclude as an indefensible "harmless error" ruling.

In Moore, when Julius Heard returned home in his car after getting some food from Sonic, he was approached by an individual who identified himself as "Rudy."  Rudy told Heard that he needed a ride to his house in Presidential Hills because he had just had a fight with his girlfriend, but Heard refused to give him a ride. Heard then exited his vehicle, but Rudy brandished a forty-five-caliber pistol and demanded that Heard take him to Presidential Hills.  Heard complied and drove Rudy to Presidential Hills, whereupon Rudy demanded that Heard turn the car onto James Garfield Circle. After Heard again complied, Rudy shot him in the face, with a portion of Heard's jaw landing in his lap. Heard tried to escape, but Rudy shot him in the "rear." Rudy then straddled Heard's back and rummaged through Heard's pockets. He eventually shot Heard three more times in the head and ran away with five hundred dollars of Heard's money.

Miraculously, Heard survived and dialed 911 on his cell phone, leading to officer Kenny Bryant's arrival at the scene. Bryant testified that Heard repeated the name "Rudy" several times before the paramedics took Heard to the hospital.  Detective Ford Hayman later arrived at the scene of the crime and was approached by an anonymous person, who told him "that the person responsible for the shooting was Rudy."  Detective Hayman thereafter used the police database to determine that "Rudy" was likely Ronald Moore.  He thus created a photo lineup to show to Heard, who identified Moore as his assailant.

Ronald Moore was thus charged with aggravated assault and armed robbery, and the state presented against him: (1) Heard's testimony, (2) Heard's identifications of Moore as his assailant to the detectives, (3) the anonymous person's statement to Hayman, and (4) evidence that a fingerprint lifted from the passenger-side rear fender of Heard's car belonged to Ronald Moore.  After Moore was convicted, he appealed to the Court of Appeals of Mississippi.

The Court correctly noted that the anonymous person's statement to Hayman was hearsay, but deemed its admission harmless error.  What this meant was that the only evidence indicating anything beyond the fact that Moore was in Heard's car were Heard's testimony and his statements to the detectives; in other words, the state's case hinged upon Heard's credibility.

And at trial, defense counsel attacked Heard's credibility, presenting evidence that he was smoking marijuana on the day of the shooting and impeaching him through evidence of a prior grand larceny conviction.  During redirect examination, the prosecutor asked Heard about drug testing, and Heard responded that he had never failed a drug test or violated his probation.  After redirect, defense counsel sought to re-cross-examine and impeach Heard with evidence that his probation was revoked for illegal drug use, but the trial court prevented such re-cross-examination

On appeal, Moore claimed that the trial court erred by denying him his Constitutional right to cross-examine Heard.  The Court of Appeals disagreed, finding that Article 3, Section 26 of the Mississippi Constitution of 1890 guarantees criminal defendants the right to cross-examine witnesses against them, but that re-cross-examination is not allowable as a matter of right, but only a matter of trial court discretion.  The court thus found that it was merely reviewing the trial court's order for abuse of discretion, and, indeed, it did find that the trial court abused its discretion.

Nonetheless, the Court of Appeals found that this was also "harmless error" because:

     "Here, Moore was allowed an extensive opportunity to impeach Heard regarding his drug use and criminal history. The jury also heard evidence that Heard was smoking marijuana on the day of the shooting. The principle of harmless error also applies to Heard's false statements. Moore had already impeached Heard with his prior conviction. Thus, Moore was allowed to present evidence to the jury that Heard's testimony might not be completely reliable. The defense had the opportunity to extensively impeach Heard, and any further impeachment on either issue would merely be cumulative."

Really?  As noted, the state's entire case hinged on Heard's credibility.  Put yourself in the jury's shoes.  You hear that the state's key witness had a prior grand larceny conviction.  You hear that he was smoking marijuana on the day that he was shot.  Undoubtedly, both of these facts are going to cause you to doubt his testimony.  But would either of these facts cause you to doubt his testimony as much as actual evidence that he blatantly lied on the witness stand?  Or, at the very least, would you be able to say that such evidence would add nothing to the table?  The Court of Appeals of Mississippi answered the latter question in the negative, and I see no way to defend its decision.

-CM

Forfeit Victory, Take 9: Ohio Supreme Court Denies McCarley's Appeal

In February, I did a post about the appeal of Willard McCarley, who successfully argued that the forfeiture by wrongdoing doctrine did not apply to statements made by his alleged murder victim.  Despite the fact that McCarley won this argument, he lost his appeal as the Court of Appeals of Ohio found that the trial court's error in admitting the victim's statements was harmless error.  Yesterday, I had the opportunity to revisit the McCarley case as an example of how the Supreme Court's opinion in Giles could be read to allow statements such as the statements of the victim in McCarley's case under the Court's seeming approval of a "transferred intent" theory of the forfeiture by wrongdoing doctrine. 

That post led me to wonder whether McCarley appealed this ruling, and, oddly enough, I found this story from yesterday, indicating that the Supreme Court of Ohio just denied McCarley's appeal, finding that the appeal did not raise any "substantial" points that would have caused a reason for approval of the review.

-CM

Forfeit Victory, Take 8: Interesting Interpretation of Giles Opinion At SCOTUSblog And My Second Take On The Opinion

Over at SCOTUSblog, Lyle Denniston has an interesting analysis of the Giles opinion.  Denniston notes that:

     "Justice Scalia, in comments that appeared to be made at least partly to hold two of the six votes (and thus majority prevailing over three dissents), said that state courts were free now to probe what Giles’ intent was in killing his former girlfriend. If there is proof of an 'abusive relationship' that ends in murder, Scalia said, that might support a finding that the crime represented an intent 'to isolate the victim and to stop her' from reporting the abuse or cooperating with a criminal investigation.

     He added: 'Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify.'  That is the kind of potential evidence of intent that state courts may now examine, the opinion said.

     Justice David H. Souter, in a separate opinion joined by Justice Ruth Bader Ginsburg, gave special emphasis to the situation that might be present if a 'domestic abuser in the classic abusive relationship' sought to keep the victim from seeking help from law enforcement officers.  'If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say in a fit of anger,' Souter wrote.

     Since their votes were essential parts of the majority, the added emphasis on a situation of domestic abuse (an emphasis that the three dissenters embraced, incidentally) could limit the impact on prosecutions that the Court’s decision might otherwise have."

These are all good points, but what I would draw from these statements when viewed of the context of the entirety of the opinions is that "evidence of ongoing criminal proceedings at which the victim would have been expected to testify" appears to be the sine qua non for application of the forfeiture by wrongdoing doctrine in this type of domestic violence case.  As I noted yesterday, Scalia indicated that the "intent" required for application of the doctrine is that it was the specific intent/purpose/design of the defendant to render the witness unavailable to testify against him.  With that being the case, I just don't see how "earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help" could meet that standard because the defendant's behavior wouldn't be specifically directed toward preventing the victim's testimony but instead would be directed toward preventing any type of help, whether it be legal, familial, or spiritual.  I would, however, love to be wrong on this front.

In this sense, Denniston's argument that the Giles opinion might be less harmful to domestic violence prosecutions than it appeared at first blush could be overstating the case.  At the same time, the passages cited by Denniston might signal a different way in which Giles could be less harmful to prosecutions in general than I first thought.  Sticking to my formulation of Scalia's majority opinion as requiring "specific intent," the passages cited by Denniston seem to indicate that Scalia also allows for application of the doctrine based upon "transferred intent."  In other words, if a husband is already facing domestic abuse charges against his wife and then murders her to prevent her from testifying against him in that case, obviously the specific intent/purpose/design of this act was not to prevent his wife from testifying against him at his subsequent murder trial because there could be no such trial under after he murdered his wife.  But according to the way I read the passages cited by Dennistion, the husband's intent to silence the wife in the domestic abuse trial would transfer to the murder trial and allow for application of the doctrine.

For an example of this scenario, let's look at the case of State v. McCarley, which I blogged about in February.  As I noted then: 

     "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."

Again, according to the way I read the passages cited by Dennistion, if Puffenbarger intended to prevent McCarley from testifying against him in the paternity/child support suit, his intent could transfer to the murder trial and allow for application of the doctrine.

-CM   

No Emergency Exit: Florida Prosecutors Dismiss Animal Cruelty Case Based Upon Confrontation Clause

On Tuesday, Florida prosecutors dismissed the animal cruelty case against Josper Sanon, a decision that came two months after the 4th District Court of Appeal reversed his animal cruelty conviction and remanded for a new trial.  In October 2006, Sanon was convicted of animal cruelty after allegedly hurling his son's black Labrador puppy, Nikita, off of a fifth-floor balcony, killing the 8-week old puppy upon impact.  The problem with the conviction was that it was largely based upon the son's claim that Sanon killed the pooch, and the son did not testify at trial.  Instead, a police officer testified that he was driving on the day in question when he saw a boy talking on his cell phone, crying and flailing his arms.  According to the officer, when he asked the boy what had happened, the boy responded that his father had thrown his dog off of the balcony.  Despite receiving a subpoena, the son did not attend his father's trial.

Santon was halfway through serving his three-year prison sentence before the 4th District concluded that the son's failure to testify was fatal to the prosecution's case.    And it was fatal because it violated the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004) and Davis v. Washington, 547 U.S. 813 (2006).  In Crawford, the Court essentially found 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 Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "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."

In Davis, the Court tweaked that analysis, noted that context matters, and seemed to conclude that even statements meeting the above formulation of "testimonial" could be admissible if they were made during an "ongoing emergency."  According to the 4th District, however, the son's statements were not made as part of an "ongoing emergency."  Instead, the son's statements occurred 20 minutes after the incident, with the officer approaching the son rather than vice versa.  And while the state claimed that the son's statements were also admissible as excited utterances, the 4th District noted that excited utterances still must satisfy the Confrontation Clause.

The 4th District thus reversed for a new trial, and, realizing that it no longer had a case, the state finally threw in the towel on Tuesday and dismissed the charges against Sanon.  In my estimation, this is a very upsetting case, but a correctly decided one under the law.

-CM      

Forfeit Victory, Take 7: Supreme Court Vacates Giles, With Key Analysis In a Footnote

The Supreme Court issued its opinion in Giles v. California today.  Justice Scalia wrote the majority opinion, which vacated and remanded the judgment of the Supreme Court of California.  In other words, the Court held that application of the forfeiture by wrongdoing doctrine requires a specific intent on the part of a criminal defendant to render a witness unavailable for trial (e.g., the witness tampering situation) and thus does not apply in a case where, for instance, a husband allegedly murders his wife and then stands trial for her murder. 

In my first pass through the opinion, it strikes me that the key holding in the majority opinion is buried in a footnote.  According to the majority opinion, the only way that it could have accepted the Supreme Court of California's non-specific intent formulation of the forfeiture by wrongdoing doctrine was if its formulation was a founding-era exception to the confrontation right.  Fair enough.  So, what was the founding-era exception?  According to the majority, it was the common law doctrine of "forfeiture by wrongdoing" derived from Lord Morley's Case, which allowed for the "introduction of statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant."  The majority opinion then notes that "[c]ases and treatises of the time indicate that a purpose-based definition of these terms governed" and cites two treatises and one case in alleged support.  The two treatises stated that the doctrine required that the defendant kept the witness away by the defendant's "means and contrivance" while the case required that the witness was "kept away by the contrivance of the opposite party."

There is, however, a large problem with this argument.  And that is that the case said nothing of the sort.  The case -- Drayton v. Wells, 10 S. C. L. 409, 411 (S.C. 1819) -- stated that there are "four cases only, in which the testimony of a witness who has been examined in a former trial, between the same parties, and where the point in issue was the same, may be given in evidence, on a second trial, from the mouths of other witnesses, who heard him give evidence:

1st. Where the witness was dead.

2nd. Where he was insane.

3rd. Where he was beyond seas; and

4th. Where the Court was satisfied that the witness had been kept away by the contrivance of the opposite party."

In other words, as far as I can tell, Drayton was at best tangentially related to the forfeiture by wrongdoing doctrine and, in fact, held that in some cases, the simple fact that the witness was dead allowed for the admission of his former testimony (case 1).  As for the treatises, I don't have access to them, so I can't tell you exactly what they state.

What I do know is that Morley itself said that the defendant merely needed to detain or keep away a witness by "means or procurement" and that, in the dissenting opinion, Justice Breyer cites to authorities such as Williams v. State, 19 Ga. 403 (Ga. 1856), in which courts/authors retained this "means or procurement" language.  According to the dissenting opinion, then, because the term "means" does not necessarily require a finding of specific intent and because Morley merely required "means or procurement[/contrivance]" and not "means and procurement[/contrivance]," the Supreme Court of California acted properly.

And you know what?  The majority opinion failed to disagree with this argument, at least in the body of the opinion.  In the body of its opinion, the majority acknowledges that "the term 'means' could sweep in all cases in which a defendant causes a witness to fail to appear," although "it can also connote that a defendant forfeits confrontation rights when he uses an intermediary for the purpose of making a witness absent."  So, where does the majority address the dissent's argument?  The answer can be found in footnote 1, where the majority notes the dissent's argument about the "means or procurement" language and states that "the authorities we cited resolve this ambiguity in favor of purpose by substituting for the 'means or procurement' of Lord Morley's Case either 'contrivance' or 'means and contrivance.'"

As I noted, though, the case cited by the majority certainly doesn't say this (does anyone have access to the other authorities?).  And I know from reading this article by my colleagues that many cases of the time also did not mean what Scalia thought they meant.  I'm sure that I will have more to say about this opinion in the coming days, but at this point, I firmly disagree with the majority's opinion.

-CM

For The Dogs: 11th Circuit Approves Circumscription Of Lay Witness Testimony On Dog Kennel Operation in Workers' Comp Case

Although the opinion itself is a bit elliptical, the 11th Circuit's recent decision in United States v. Lavigne, 2008 WL 2487917 (11th Cir. 2008), provides a nice opportunity to review what I regard as the completely ineffectual 2000 amendment to Federal Rule of Evidence 701.  While the opinion is not a model of clarity, here's what I believe transpired in Lavigne:

Barbara Lavigne applied for federal workers' compensation benefits on the ground that she was unable to work.  The feds, however, discovered that she was operating a dog kennel and thus charged her with using fraud to obtain federal workers' compensation benefits.  At trial, Lavigne called Vida Ellis and Deborah Howington, who presumably also owned or worked at dog kennels, to testify that her dog kennel operation constituted a hobby and not a business.  While the district court allowed these witness to provide some testimony, it also circumscribed their testimony in some manner.  I can't say in exactly what manner because the 11th Circuit did not describe their testimony to any degree in finding that the district court acted in within its discretion.  But you know what?  It really doesn't matter based upon the 2000 amendment to Federal Rule of Evidence 701, under which courts can basically do as they please.

Why do I say this?  Well let's look at Federal Rule of Evidence 701.  Before 2000, it read:

"If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue."

The problem with this iteration of the rule was that it allowed parties to sneak in expert witness testimony under this rule without the need to establish the witness as an expert witness.  So, the decision was made to amend the rule so that lay witness testimony under Federal Rule of Evidence 701 cannot be "based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 

That certainly sounds like an admirable goal, but let's look at the Advisory Committee's Note to the rule to see why trial courts can now basically do what they want without abusing their discretion.  According to the Note, "[t]he amendment is not intended to affect the ''prototypical example(s) of the type of evidence contemplated by the adoption of Rule 701 relat(ing) to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences."

Okay, that sounds reasonable enough, so how did the Committee apply it to some specific factual scenarios?  Well, here are the two situations where the Committee drew permissible/impermissible dichotomies:

     -(1) "[C]ourts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established....Such testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson's personal knowledge. If, however, that witness were to describe how a narcotic was manufactured, or to describe the intricate workings of a narcotic distribution network, then the witness would have to qualify as an expert under Rule 702."

     -(2) "The court in Brown noted that a lay witness with experience could testify that a substance appeared to be blood, but that a witness would have to qualify as an expert before he could testify that bruising around the eyes is indicative of skull trauma. That is the kind of distinction made by the amendment to this Rule."

Is anyone else confused by what exactly is meant by "the kind of distinction made by the amendment to the rule?"  I sure am, and my sense is that courts are as well, which has basically resulted in courts doing as they please.  To wit, readers might recall another 11th Circuit case, where I posted that the court approved the district court's admission of a DEA agent's testimony that the defendant was conducting a "heat run" as lay witness testimony even though other circuits had found that such testimony could only be rendered by an expert witness.  I tend to side with the courts seeking expert qualification in a broader range of scenarios, but with the way that the rules are currently written, it's tough to assign fault to anyone.

-CM 

Georgia Rule: Supreme Court of Goergia Hears Oral Arguments On Alleged "Secret Rule" By Magistrate Judges

As an Atlanta Journal and Constitution story correctly notes, courts don't often hear cases pitting a district attorney against a lower court, but that is exactly the scenario with which the Supreme Court of Georgia was presented yesterday in Magistrate Court DeKalb County et al. v. Fleming.  So, what led to the showdown?

Last year, a man stood accused of shooting at two police officers.  The man was unable to make bond and thus secure his release, but he was able to secure a preliminary hearing in the Magistrate Court of DeKalb County to determine whether there was probable cause to continue holding him.  At that hearing, which was held last May, DeKalb District Attorney Gwen Keyes Fleming called only the investigating detective to testify about what he had been told, rendering his testimony hearsay.  Presiding Magistrate Judge Kathy Dorough found that this "testimonial" hearsay was insufficient to continue holding the defendant but did offer to continue the hearing to a later time so that the prosecution could produce the testimony of the two officers who were shot at.  Fleming refused, claiming that she thought that the hearsay testimony was sufficient, and Dorough responded by dismissing the charges and freeing the defendant.

In response, Fleming sued the judges of the Magistrate Court of DeKalb County, claiming that Judge Dorough refused to give proper weight to the officer's testimony and that the judges as a whole have an improper policy prohibiting them from binding over a case on a finding of probable cause based solely on hearsay.  Fleming thereafter got the case transferred to a court in Rockdale County, which agreed with her.  This ruling then prompted the magistrate judges to appeal to the Georgia Supremes.  Here are the arguments of both sides:

According to Fleming, the "case is about power," with the judges' "self-created hearsay evidentiary rule" flying in the face of, inter alia, the Supreme Court of Georgia's opinion in Gresham v. Edwards, 644 S.E.2d 122 (Ga. 2007).  Fleming claimed that this self-created rule can be adduced from an interoffice memorandum from th e court and that it has a detrimental effect "on valid criminal charges, on victims, and on the community." 

Meanwhile, the judges denied that they had crafted a "self-created hearsay evidentiary rule."  Moreover, they claimed that the Rockdale court was wrong to rule that they lacked the discretion to require some non-hearsay evidence before binding the case over to superior court for trial.  They claimed that such a finding would prohibit them from doing their job, under which they have "not only the right, but the duty" to dismiss charges at the preliminary stage if in their "discretion and judgment, the burden of proof necessary to establish probable cause has not been met by admissible and credible evidence."

During oral arguments yesterday, it seemed that the Supreme Court Justices were weighing 3 options (in addition to the possibility that they would dismiss because Fleming lacked the authority to sue he judges).  They could:

     -order the magistrate judges to treat hearsay as legal evidence, which can be sufficient to continue holding a defendant unless the truthfulness of the testimony is in doubt;

     -tell Keyes Fleming the magistrate judges have the authority to treat hearsay testimony as they see fit; or

     -go further, as suggested in a friend-of-the-court brief from the DeKalb public defender's office, and prohibit all hearsay testimony in preliminary hearings (which is unlikely because DeKalb's magistrate court is the only one in Georgia to insist on more than hearsay testimony).

And my response is that whatever the justices decide will not be that big of a deal (unless they select the 3rd option, which seems very unlikely based upon no other Georgia court applying it).  Is Fleming right that Gresham v. Edwards held that the state can present "testimonial" hearsay at preliminary hearings?  Yes, but Judge Dorough allowed the police officer to render such "testimonial" hearsay, making this a non-issue.  Do the judges of the Magistrate Court of DeKalb County have a secret, improper policy prohibiting them from binding over a case on a finding of probable cause based solely on hearsay?  Maybe and maybe not, but if they do, it would seemingly express the belief by those judges that such evidence is indeed insufficient.  And if that's the case, and even if the Georgia Supremes strike down that policy, there's still nothing stopping those individual judges from applying that same "secret rule" to the facts of any specific case.   In other words, the justices could rule every which way but loose, and I think that things would still look pretty much the same as the status quo.

-CM

Call The Doctor: Arizona Court Finds Medical Malpractice Expert Witness Statute Violates Separation Of Powers

In Seisinger v. Siebel, 2008 WL 2426811 (Ariz.App. Div. 1 2008), the Court of Appeals of Arizona found that a state statute requiring an expert witness in a medical malpractice action to meet certain criteria was in direct conflict with a rule of evidence and was thus unconstitutional.  It's a decision with which I agree, but I also think that Arizona might have been on the right track with the statute.

In Siebel, Laura Seisinger filed a complaint against Scott Siebel, M.D., alleging that he committed medical malpractice when he administered a spinal epidural to her.  Seisinger thereafter disclosed Dr. J. Antonio Aldrete, M.D., as an expert witness, but Dr. Siebel moved in limine to preclude Dr. Aldrete's testimony because he did not meet the requirements of Arizona Revised Statute Section 12-2604, governing the qualifications necessary for expert witnesses in medical malpractice actions. Seisinger did not dispute that Dr. Aldrete could not satisfy the requirements set forth in Section 12-2604; instead, she argued that the statute was an unconstitutional violation of the separation of powers doctrine because it is in direct conflict with Arizona Rule of Evidence 702 and asked the trial court to declare it unconstitutional. The trial court, however, granted Dr. Siebel's motion and ultimately dismissed Seisinger's complaint, prompting her appeal to the Court of Appeals of Arizona.

The Court of Appeals first noted that the Arizona Constitution confers on the Arizona Supreme Court the exclusive power to make rules relative to all procedural matters in any court.  The court thus noted that the judiciary will recognize legislatively enacted procedural rules only if they are "reasonable and workable" and do not conflict with, or tend to engulf, the Arizona Rules of Evidence promulgated by the Arizona Supreme Court.

It then proceed to compare Arizona Rule of Evidence 702 with Section 12-2604.  Under Rule 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Under Section 12-2604(A):

     "A.  In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria:

          1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.

          2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to either or both of the following:

               (a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.

               (b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty.

          3. If the defendant is a general practitioner, the witness has devoted a majority of the witness's professional time in the year preceding the occurrence giving rise to the lawsuit to either or both of the following:

               (a) Active clinical practice as a general practitioner.

               (b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant."

The Court of Appeals found that while Rule 702 authorizes expert testimony on the basis of "knowledge, skill, experience, training, or education," Section 12-2604(A) precludes a witness who is otherwise qualified under Rule 702 from testifying in a medical malpractice case unless he or she meets the additional strict practicing and teaching requirements set forth in the statute.  The court thus rejected Dr. Siebel's argument that the statute merely supplemented the rule and instead found that it was in "direct conflict" with the rule and was unconstitutional as an infringement on the exclusive rule-making authority of the Arizona Supreme Court.  The court finally noted that while the legislature does have the power to enact statutes that establish substantive rights, Section 12-2604(A) was procedural and was thus not constitutional.

I agree with the court's ruling and find it to be consistent with similar cases across the country, including one cited by the court.  See McDougall v. Schanz, 597 N.W.2d 148, 153-54 (Mich. 1999).  But does the judiciary have something to learn from the legislature in these cases?  I've noted before that most courts are exceedingly liberal in finding witnesses to be qualified as experts under both Federal Rule of Evidence 702 and state counterparts.  That leaves the question of whether judges are properly acting as matadors in many of these cases.  With regard to the medical malpractice context, the question would be whether most or all physicians in a particular specialty such as podiatry, are qualified to render expert opinions on specialty-specific conditions, such as plantar fascitis ("flip-flop disease" or "dog's heel") or whether only those physicians with sufficient (continuing) qualifications can render such testimony.  I think that the Arizona legislature might have taken things too far with Section 12-2604(A), but I also think that Rule 702 is too toothless.  Maybe judiciaries and legislatures can meet somewhere in between.

-CM

Masked And Anonymous: U.K. Law Lords Rule That Defendants Have A Right To Know The Identity Of Witnesses Testifying Against Them

On Wednesday, in a ruling which applies to criminal cases in England, Wales, and Northern Ireland, the Law Lords decided that have a defendants have a right to know the identity of witnesses testifying against them when they quashed a double murder conviction against Iain Davis.  According to a senior police officer, this was a "potentially disastrous" ruling which could result in "[a] lot of good work being undone" and up to 40 appeals by inmates convicted in trials in which anonymous testimony was rendered against them.  My response is that I can't believe such a ruling hadn't been rendered previously.

Davis was convicted of the New Year's Day 2002 killing of two men in flat in Hackney, east London, with seven witnesses against him being granted anonymity after claiming to be in fear for their lives if it became known that they had given evidence against Davis.  The terms of this anonymity were that the trial judge directed that:

     -(1) the witnesses would give evidence under pseudonyms;

     -(2) their personal identifying details would be withheld from the defendant and his advisers;

     -(3) Davis' counsel would not be permitted to ask any question from which they might be identified;

     -(4) they would give evidence screened from Davis; and

     -(5) their voices would be distorted to prevent him recognizing them.

In other words, it's sort of like the technique that the United States Supreme Court found violated the Confrontation Clause in Coy v. Iowa, 487 U.S. 1012 (1988), but taken to the nth degree.  The "across the pond" differences can be explained by the son surpassing the father.  In the wake of the abuses of the Star Chamber, an expeditious way for the Tudors and Stuarts to exorcize political and religious dissenters of the monarchy masquerading as a court conducting treason trials, England developed a common law tradition that, subject to certain exceptions and statutory qualifications, the defendant in a criminal trial should be confronted by his accusers in order that he might cross-examine them and challenge their evidence.  While us Yanks took the torch from this tradition and Constitutionally codified the right to confront witnesses under the Sixth Amendment, the English tradition remains just that, a tradition, subject to extreme exceptions such as those applied in Davis' trial.

That is, until the Law Lords ruled that the anonymity of the witnesses against Davis did not comport with his right to confront the witnesses against him and that a new trial was required because his conviction was dependent upon the testimony of three of these witnesses.  According to the Lords, the protective measures imposed hampered the conduct of the defense in a manner and to an extent which was unlawful and rendered the trial unfair.  I couldn't agree more. But what do readers think?  Are there cases where witness fear trumps the right of confrontation and justifies anonymity? 

-CM

Sentence Falls, Idaho: Supreme Court of Idaho Vacates Death Sentence After Religious And Character Attacks Against Defendant During Victim Impact Statements

In State v. Payne, 2008 WL 2447447 (Idaho 2008), Darrell Payne was convicted of first-degree murder, first-degree kidnapping, robbery and rape, and sentenced to death, all in connection with acts that he allegedly committed against Samantha Maher.  His appeal of his convictions eventually reached the Supreme Court of Idaho, which affirmed Payne's convictions but vacated his sentence in an opinion that nicely details what can't be included in victim impact statements in capital cases.

Let's skip the evidence of Payne's guilt and move right to the substance of the victim impact statements presented at Payne's sentencing hearing.  The prosecution introduced into evidence "an excessive number of letters from family members and friends, many of which stated the author's opinions about Payne, his character and the crime."  Many of these individuals also testified at the hearing "and gave their opinions about Payne, his character and the crime."  Specifically, witnesses described Payne as "evil, a waste of aspirin, a sociopath, a cold-blooded killer, unremorseful, a predator, cold and calculating, not a man, not even human, selfish, a coward, a pathetic monster, a wimp and a man without a conscience."

Some witnesses also expressed their wishes that Payne "rot in hell," "burn in hell" or "be tortured.". One witness noted Bible passages he wished the court to consider, with each passage calling for death for a certain crime.  This witness testified that:

     -Numbers 35:16 states, "'If a man strikes someone with an iron object so that he dies, he is a murderer; the murderer shall be put to death;"

     -Deuteronomy 24:7 states, "If a man is caught kidnapping one of his brother Israelites and treats him as a slave or sells him, the kidnapper must die. You must purge the evil from among you;" and 

     -Deuteronomy 22:25 states, "But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die."

The Idaho Supreme Court found that all of these letters and testimony were improperly admitted.  As support for this conclusion, the court noted that pursuant to precedent from both the United States and Idaho Supreme Courts, while "evidence relating to the victim's personal characteristics and the impact of the crime on the murder victim's family is admissible, characterizations and opinions about the crime, the defendant and the appropriate sentence are not admissible." See Payne v. Tennessee, 501 U.S. 808, 830 n.2 (1991); State v. Lovelace, 90 P.3d 298, 305 (Idaho 2004).  The Court further found that "references to or arguments using religious authority as the basis for punishment is improper and have been condemned by virtually every court to consider their use." See Sandoval v. Calderon, 241 F.3d 765, 766-67 (9th Cir. 2000).  The court found this to be he case "because the death penalty may only be imposed when the fact finder carefully focuses on the specific statutory factors and because reference to religious authority undermines the fact finder's role and sense of responsibility in sentencing a defendant to death."

The court then concluded that the admission of this evidence was not harmless error and accordingly vacated Payne's death sentence and remanded for resentencing before a different judge.  It is a decision with which I agree in that it seems in line with precedent from across the country and also seems to cohere with the notion that justice should be based upon the facts rather than emotional or spiritual appeals.

-CM

Article of Interest: Professor Philip K. Hamilton's Should Statements Made by Patients During Psychotherapy Fall Within the Medical Treatment Hearsay Exception? An Interdisciplinary Critique

New England School of Law Professor Philip K. Hamilton recently published the fascinating article, Should Statements Made By Patients During Psychotherapy Fall Within the Medical Treatment Hearsay Exception? An Interdisciplinary Critique, in The John Marshall Law Review.  The article is concerned with Federal Rule of Evidence 803(4), the medical treatment exception to the rule against hearsay, which allows for the admission of "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."  Hamilton concludes that courts should discontinue the use of this exception to admit statements made by patients in mental health treatment or in contemplation of such treatment and that the exception should never be used to admit statements made to a mental health professional consulted for diagnosis only.

After the article's introduction, Hamilton begins by arguing in Part II that application of the medical treatment exception to patients in psychotherapy is unfair compared to its application to patients seeking diagnosis or treatment of physical problems.  Ordinarily, the statements admitted under the exception against a patient seeking physical treatment are statements of medical history -- the same facts that were most important to the diagnosis and treatment of the physical condition, (e.g., nature and severity of pain, its location, time of onset, apparent causes).  Conversely, the statements admitted under the exception against patients in psychotherapy (e.g., details of assault, relationship to defendant, acts of co-workers, etc.), are generally much less central to the diagnosis of the patient's mental condition, and thus precisely those facts that are least likely to have been explored in the treatment, and certainly much less explored than the patient's statments about his feelings and other symptoms.  Hamilton notes that judges nonetheless have made matador-style rulings in psychotherapy cases, typically approving the admission of psychotherapy patients' statements by equating psychological treatment with medical treatment and showing little understanding of the differences between the two types of treatment even when they ostensibly apply a more exacting analysis.

In Part III, Hamilton argues that such decisions are problematic because the rationale behind the medical treatment exception is that patient's statements have "guarantees of trustworthiness."  This trustworthiness is primarily based upon patients' "selfish treatment interest," the perceived need to speak accurately in order to receive appropriate treatment (and relief from their presenting symptoms)."  According to Hamilton, however, patients who receive or who will receive psychological treatment do not have the same kind of selfish treatment motivation as patients seeking treatment of physical injuries and don't similraly have their statements vetted for truthfulness by the person treating them.

Hamilton first considers statements made during mental health treatment and comes to the following conclusions:

     -in the typical medical interview, the doctor takes the patient's information and challenges and clarifies it to ensure efficacious treatment whereas the typical mental health professional is most concerned with fostering a warm, personable, and confiding relationship and is less concerned with, and in fact, dissuaded from, challenging the trustworthiness of his patient's statements;

     -psychiatric patients are more likely than other medical patients to misreport through distortion, incomplete disclosure, or deliberate deception based upon, inter alia, their illnesses, fear, and/or the desire to avoid responsibility or humiliation;

     -while the efficacy of mental health treatment does depend on accurate information about symptoms, unlike with other medical patients, it does not depend substantially on the accuracy of the patient's statements about the events leading to the patient's distress;

     -(patients treated for trauma are especially likely to have memory distortion, a desire to conceal the truth based upon feelings of shame and responsibility, and impairments in thinking and decision-making); and

     -the facts that are recited by the patient in mental health treatment are ordinarily much less susceptible to verification by the clinician.

Hamilton thus concludes that the medical treatment exception should not apply to statements made during mental health treatment.  He then identifies an even more pernicious application of the exception:  its application to patients, most frequently trauma patients, being treated by a non-mental health medical professional who was also evaluating the patient for referral to mental health treatment for the trauma.  Hamilton identifies a line of cases where courts admitted statements made by patients in this context and identifies at least two problems with their decisions:

     -first, the situations in which such statements arise raise serious concerns about the accuracy of the victim's perception and memory and his need to conceal the truth; and

     -second, there is no evidence in these cases that the victims themselves were aware that their statements were related to their mental health treatment or even that such treatment was contemplated, meaning that there could have been no "selfish treatment interest" ensuring accuracy.

Finally, in Part IV, Hamilton argues that, whether in the medical or mental health treatment context, the medical treatment exception should not apply to statements made for the sole purpose of diagnosis, with no eye toward treatment.  Hamilton notes that such statements were deemed inadmissible before the passage of the Federal Rules of Evidence and that, while those Federal Rules overruled that line of authority, its rationale for doing so was undermined by the 2000 amendment to Federal Rule of Evidence 703.  He then notes that the cases dealing with statements made to mental health professionals have been strikingly inconsistent, perhaps reflecting discomfort with the anomalous state of the rule.  Hamilton argues that all courts should side with the courts that have rejected the admission of statements made for the sole purpose of diagnosis, and thus concludes based upon the entirety of his article that Federal Rule of Evidence 803(4) should be amended to read:

     -"The following are not excluded by the hearsay rule, even though the declarant is available as a witness.

. . .

Statements for the purposes of medical diagnosis or treatment. Statements made for the purposes of medical diagnosis or treatment of a physical illness or injury and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment." 

I found the article to be very convincing, agree to the amendment suggested by Hamilton, and highly recommend the article to anyone with an interest in this area of the law.  I wrote Professor Hamilton and asked him about what led him to write the article and about plans for future scholarship, and he responded:

     "I was motivated to write it after a conversation with a defense attorney several years ago.  He was representing a man in a case involving a sexual offense.  The complaining witness was a woman with a history of mental illness and she had committed suicide.   The lawyer told me that he had suggested to the prosecutor that the case would have to be dismissed because of a lack of evidence, now that the complainant couldn't testify.  The prosecutor replied that he would prove the case through the decedent's psychiatrist, who would testify to what the decedent had told the psychiatrist about what the defendant had done to her.  The prosecutor said that the testimony would be permitted under the medical treatment hearsay exception.  As a longtime Evidence teacher who knew something about psychotherapy, I didn't think that was right, but when I did some research I found that some courts actually used that exception to allow exactly that kind of hearsay into evidence. So I wrote the article.

     I am beginning research on whether there should still be an exceptionfor an excited utterance, given what we now know about the brain."

-CM
   

AFI Issues List of the 10 Greatest Courtroom Dramas

The AFI has come out with its 10 Greatest Films in 10 Classic Genres, including the Top 10 Courtroom Dramas (I'm guessing that the word "Drama" is why the classic "My Cousin Vinny" didn't make the cut).  And it looks like a pretty solid list:

10. “Judgment at Nuremberg” (1961)

9. “A Cry in the Dark” (1988)

8. “In Cold Blood” (1967)

7. “Anatomy of a Murder” (1959)

6. “Witness for the Prosecution” (1957)

5.  “A Few Good Men” (1992)

4. “The Verdict” (1982)

3. “Kramer vs. Kramer” (1979)

2. “12 Angry Men” (1957)

1. “To Kill a Mockingbird” (1962)

It's tough to argue with anyf these selections, save possibly "A Cry in the Dark," which seems like an obscure choice better known for spawning the phrase "The dingo's got my baby" more than anything else.  I'll have to see that one, though, before passing judgment.  Besides that one, though, you have a series of amazing films made by amazing directors (2 by Sidney Lumet, and 1 by Richard Brooks, Otto Preminger, and Billy WIlder) and/or from terrific source material ("To Kill a Mockingbird" and "In Cold Blood").

So, what other options might the AFI have chosen?  Off the top of my head, here are a few thoughts: "The Accused," "A Soldier's Story," "The Insider," "...And Justice for All," "Inherit the Wind," and "Primal Fear."  Some might want to include "Philadelphia," but I didn't care for it that much.  So, what do readers think?  Are there any movies missing?

-CM

Trawl Fishing?: Supreme Court of California Affirms Use of Product Rule To Match Defendant's DNA In Cold Case

Earlier, this week, the Supreme Court of California affirmed the first degree felony murder conviction of Dennis Louis Nelson in People v. Nelson, 2008 WL 2404949 (Cal. 2008), in the process affirming the use of the "product rule" in Nelson's "cold hit" case.  But was the ruling correct?

In Nelson, on February 25, 1976, 19 year-old college student Ollie George was found dead, raped and drowned in mud in Sacramento County, California.  George had disappeared two days earlier, shortly after witnesses saw her inside a car at a shopping center.  A couple of weeks after George's death, one of these witnesses saw what he believed to be that same car and contacted police, who traced the car to Nelson and questioned him.  The witness' tip, however, was merely one of hundreds of tips and did not lead to any charges being brought, making the George murder a cold case.

It remained that way until October 2000, when California allocated funds to enable local law enforcement agencies to utilize DNA to solve sexual assault cases that lacked suspects.  In July 2001, a review of Ollie George's death determined that the case had biological evidence that warranted analysis.  An analyst conducted a vaginal swab on George to develop a DNA profile and then compared it with the state's convicted offender databank, resulted in a match with Nelson (Cases like Nelson's are sometimes called "trawl cases" because the match was discovered by searching a database of previously obtained DNA samples).

A criminalist then applied the "product rule," which is a statistical method to calculate the rarity of a given DNA sample in the relevant population, expressed as the probability of a single random person possessing the same DNA profile as the person whose DNA was found at the crime scene.  Comparing 15 loci, the criminalist determined, inter alia, that the DNA profile on the vaginal swab would occur at random among unrelated individuals in about one in 950 sextillion African-Americans (Nelson is African-American, and there are 21 zeros in a sextillion).  The prosecution admitted this evidence over Nelson's objection, and he appealed this ruling and others on his appeal, which eventually reached the California Supremes.

Now, first, let's look at what the appeal did not concern.  Nelson did not claim that there was any problem with the "product rule" as applied to a single suspect.  As the court noted, Nelson agreed with the state "that using the product rule to calculate the random match probability makes sense when comparing one suspect's profile with the crime scene evidence because, as he explains, the random match probability 'estimates the chance that any single, random person drawn from the relevant population would have the same DNA profile as that of the unknown person whose DNA was found at the crime scene.'"  Indeed, such a challenge would be difficult because, "[a]t present, courts across the nation have accepted the results of DNA typing into evidence and ruled the product rule, and the frequency tables underlying it, an acceptable way to represent the significance of a match." Erin Murphy, The New Forensics:  Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 781 (2007).

Instead, Nelson's argument was that while the product rule makes sense in a single suspect case, there is a problem with applying the product method to a trawl/cold case because, when a suspect is found by a search of a large DNA database, the chance of a coincidental match is increased because "a single genetic profile (from the crime scene evidence) is compared to the very large number of profiles in these databases."  He therefore claimed that application of the product rule to a trawl/cold case was a new scientific technique, meaning that it had to pass California's Kelly test, which requires that the technique must have gained general acceptance in the field to which it belongs.  The Supreme Court of California, however, rejected this argument, finding that "[t]he Court of Appeal in this case and other courts that have considered this question have concluded that use of the product rule in a cold hit case is not the application of a new scientific technique;" it also rejected Nelson's argument that evidence obtained from application of the product rule to a trawl/cold case was irrelevant.

Reviewing these cases and Erin Murphy's aformentioned article, it's tough to argue with the court's opinion, but the Murphy article reveals that it's possible that the times they are a-changin'.  First, with regard to the product rule in general, Murphy notes that "recent evidence calls into question the accuracy of using the product rule to convey match probabilities."  She specifically cites to, inter alia, some eye opening research conducted by an alert analyst and emerging independent research indicating that an assumption underpinning the product rule - that of independence at the various loci - may not hold true for all populations.

And what about Nelson's argument about the difference between single suspect and trawl/cold cases?  Well, according to Murphy, there is considerable disagreement on the issue.  Some suggest that the results of a “trawl” are more reliable than in a simple confirmation case, because the analyst has compared the genetic profile to a database and excluded a large number of persons whereas some contend that the likelihood of a "false positive" increases as the analyst looks in a database for a match, and thus the statistical probability should be accordingly discounted by this risk.  All of which leads me to concur with Murphy's conclusion that "[r]ather than render admission of a methodology a one-time question that, once answered, is rarely asked again, the law should affirmatively require the government to provide evidence verifying the technique's continued viability."

-CM

Three Strikes And They're Out: Ninth Circuit Finds That Rule 609(b) Applies To Old Convictions Used To Enhance A Subsequent Sentence

The Ninth Circuit's recent opinion in Simpson v. Thomas, 2008 WL 2357376 (9th Cir. 2008), dealt with an issue of first impression: whether prior convictions more than ten years old may be used for impeachment purposes under Federal Rule of Evidence 609(b) if those prior convictions were used to enhance a sentence for a separate conviction that falls within the ten-year time limit of Rule 609(b).  The Ninth Circuit answered, "No," and I agree with its decision.

In Thomas, inmate Gary Simpson filed suit under 42 U.S.C. Section 1983 alleging that Sergeant Jeffrey Thomas, a corrections officer at a state prison, used excessive force after Simpson did not comply with Thomas' orders.  The allegations stemmed from an altercation between the two men; Simpson claimed that Thomas wantonly attacked him while Thomas claimed that he was merely attempting to restrain the aggressive Simpson. 

In deciding whose story to believe, the jury was, over defense counsel's objection, able to consider the impeachment value of three of Simpson's prior conviction:

     -a 1986 felony conviction for burglary;

     -a 1989 felony conviction for illegal possession of narcotics; and

     -a 1993 felony conviction for possession of marijuana with intent to distribute.

Simpson was release from incarceration for all three of these convictions more than ten years prior to trial, arguably triggering Federal Rule of Evidence 609(b), which states in relevant part 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 district court, however, admitted the prior convictions in spite of Rule 609(b)'s ten-year time limit because under California's Three Strikes Law, the prior convictions were subsequently utilized by a sentencing court in sentencing Simpson for a subsequent conviction for second degree armed robbery in 1996.  Specifically, according to the district court, the prior convictions were "utilized by the sentencing court when they made the determination to give him [the sentence being served at the time of trial]" and thus "those prior strikes were not and do not wash out...regardless of the fact that they may be older than ten years."  Moreover, the district court found that "one of the things that's utilized by the institution to determine the level of security, classification, location...is all based on the plaintiff's prior felony convictions."  In other words, according to the district court, the Three Strikes law made it so that 10 years had not elapsed since Simpson had been released from the confinement imposed from his 1986, 1989, and 1993 convictions; instead, he was still confined in part due to those convictions.

On appeal, however, the Ninth Circuit reversed.  It noted that it had previously concluded that the Federal Three Strikes Provision did not violate the Double Jeopardy Clause because, under the Provision, "the enhanced punishment imposed for the later offense is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest offense."  The Ninth Circuit then found that the same reasoning applied to California's Three Strikes Provision.  In other words, Simpson was not still confined due to his 1986, 1989, and 1993 convictions; instead, he was released from his confinement for those convictions more than 10 years before trial, and he was now serving a stiffened penalty based on the 1996 conviction.  The Ninth Circuit thus found that Federal Rule of Evidence 609(b) applied to the earlier convictions, that the District Court failed to find that the probative value of these convictions substantially outweighed their prejudicial effect, and that the erroneous admission of these convictions more likely affected the verdict.  The court thus reversed and remanded, a decision with which I agree based upon the plain language of Federal Rule of Evidence 609(b) and the Double Jeopardy-avoiding interpretation of the Three Strikes Provision.

-CM

Dead Man's Chest, Take 2: New York Court Of Appeals (Incorrectly) Reverses Dead Man's Statute Ruling In Lawyer Discipline Case

Last October, I wrote about the opinion of the New York Supreme Court, Appellate Division, First Department in In re Zalk, (N.Y.A.D. 1 Dept. 2007), in which Manhattan attorney Richard A. Zalk was alleged to have stolen $172,151 from his clients, Arthur and Ruth Gellman.  Zalk began representing the Gellmans in 1979, and, according to Zalk, after Arthur died in 1990, he continued to represent Ruth over the next 10 years, without billing her, in connection with her ownership of an apartment. In 2000, Ruth sold the apartment for $2 million, $200,000 of which was paid into Zalk's escrow account as a down payment. After closing, Ruth died, and Zalk kept $172,151 in the escrow account for himself.  He claimed that Ruth told him to keep this amount in the account as payment for his 10 years of unpaid legal services.  The First Department, however, found that Ruth's alleged statement to Zalk about keeping this money as payment was inadmissible during the guilt phase of his trial under New York Dead Man's Statute (NY CPLR 4519).

Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate (For instance, the New York Dead Man's Statute prevents testimony "against the executor, administrator or survivor of a deceased person.").  The theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.  Or, an attorney charged with taking money from his now deceased client could not testify that his client told him he could take the money as payment for his previous pro bono representation.

As I noted in my previous post, the First Department found that Zalk's testimony was "against" Ruth's estate even though her daughters were not parties to the hearing because (1) it went against their competing claim to the money, and (2) the court could have ordered that Zalk make monetary restitution to Ruth's daughters.  I agreed with this reasoning and concluded:

     "I don't see how the New York Court of Appeals could change the evidentiary ruling.  Zalk was clearly an interested party as he stood to acquire $172,151 if Ruth's alleged promise was true.  Furthermore, Ruth was clearly deceased at the time that Zalk wanted to testify.  The reasoning behind the statute, protecting the deceased's estate from "plundering," was clearly at play in the case.  And the court's argument about why Zalk's testimony went "against" Ruth's estate seems pretty persuasive."

And guess what?  Last week, the Court of Appeals of New York (the quivalent of most states' supreme courts) reversed the First Department's ruling in In re Zalk, 2008 WL 2367490 (N.Y. 2008).  But guess what else?  I stand by my earlier decision and think that the Court of Appeals' opinion engages in the same type of semantic gymnastics and insouciance to the purpose behind a statute/rule that has plagued courts in the nolo contendere/Rule 410 context as identified in my post last week and my article, The Best Offense is a Good Defense.  So, where did the Court of Appeals go wrong?  Let's look at its opinion.

According to the Court of Appeals, "although Zalk 'testified 'as a witness in his own behalf or interest,' ... he did not testify 'against the executor, administrator or survivor' of Mrs. Gellman. Rather, he testified against the Disciplinary Committee, which is none of these latter....'  In essence, the [Disciplinary] Committee takes the position that, although the Gellman daughters are not parties to the disciplinary proceeding, the rules of the Fund and the doctrine of collateral estoppel endow them with a vital interest in a finding that Zalk converted estate monies. But the Dead Man's Statute only applies to testimony 'against the executor, administrator or survivor' of the deceased. It does not foreclose testimony that potentially cuts against these parties' interests in a contingent future proceeding."

And my response is:  How did Zalk not testify against Ruth's estate?  The Court of Appeals appears to be adding words to the Dead Man's Statute, making it applicable only when there is proposed testimony "against the executor, administrator or survivor of a deceased person [and the executor, administrator or survivor is also a party to the action.]"  Yet, if we compare other rules of evidence, we see that there is no reason to construe the statute in this manner.

The best example is the statement against interest exception to the rule against hearsay contained in Federal Rule of Evidence 804(b)(3) (and state counterparts), which states that when you have an "unavailable" witness, and that witness made "[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," the statement is admissible as an exception to the rule against hearsay.  Now, what is the import of this rule?  Does it mean that the statement must be against the declarant's interest in the present action or that the declarant be a party in the present action?

The answer to both questions is "No," and, indeed, Federal Rule of Evidence 804(b)(3) (almost) always applies to a non-part witness, not a party.  Instead, we deem such a statement a statement "against interest" because it will potentially cut against the declarant's interests in a contingent future proceeding.  In other words, it is a statement "against interest" in precisely the same way that the Disciplinary Committee argued that Zalk's testimony was a statement "against the executor, administrator or survivor" of the deceased. 

But we can take it even a step further because Federal Rule of Evidence 804(b)(3) can, again, (almost) never be used to harm the declarant's interests in the action in which it used because the declarant is (almost) always a non-party witness.  In contrast, as the First Department noted, the court hearing Zalk's case could have ordered that Zalk make monetary restitution to Ruth's daughters, meaning that the admission of Zalk's testimony could clearly harm their interests.  Unfortunately, the Court of Appeals failed to address this point.

At best, I will grant that the language of the New York Dead Man's Statute is ambiguous, which should have forced the Court of Appeals to consider the purpose of the Statute, which, as I noted above, is to protect a deceased's estate from plundering through false statements.  And yet, the Court of Appeals rejected out of hand the proposition that the Dead Man's Statute "foreclose[s] testimony that potentially cuts against these parties' interests in a contingent future proceeding."  In other words, it rejected an interpretation of the Dead Man's Statute which effectuated the purpose behind the Statute, which is to protect the deceased's estate.       

So, what do readers think?  Am I way off base, or did the Court of Appeals commit serious error?

-CM

Rhode Island Reversal: Witness Murder Trial Raises Fascinating Issue Which Begs Us To Put Ourselves In The Jury's Shoes

The Supreme Court of Rhode Island's recent opinion in State v. Pona, 2008 WL 2369223 (R.I. 2008), raises a fascinating evidentiary issue:  If a defendant is on trial for murdering a witness against him in a murder trial, is evidence that he committed the murder that was the subject of the first trial admissible in his subsequent trial to prove his motive to kill the witness?  Here is a (very) brief summary of the facts of the case:

Jennifer Rivera, an eighth-grade student at Roger Williams Middle School, was murdered by Dennard Walker, the half brother of Charles "Manny" Pona.  Before her murder, Jennifer had testified at a bail hearing at which she had identified Pona as the murderer of Hector Feliciano, and she was scheduled to testify as the principal prosecution witness at Pona's imminent murder trial, which nonetheless concluded with a jury finding Pona guilty of murder.  There was no question that Walker, who pled guilty to killing Jennifer, murdered her to prevent her from testifying against Pona; the only question was whether Pona conspired with Walker to commit the murder.  The prosecution believed that he did and charged him with murder, conspiracy to murder, carrying a firearm without a license, committing a crime of violence while carrying a firearm, and obstruction of justice.  A jury convicted Pona on all counts, prompting his appeal, which eventually reached the Supreme Court of Rhode Island; the Court vacated the judgments of conviction and remanded to the Superior Court for a new trial.

On appeal, Pona raised three evidentiary issues, with one being that the Superior Court erred by allowing the state to present evidence indicating that he was guilty of Feliciano's murder.  So, how was this evidence admitted?  Well, first of all, at a pretrial hearing, Pona successfully moved to have any reference to his conviction for Feliciano's murder deemed inadmissible and replaced with a stipulation that he "was charged with a felony, and the principal witness and the only witness was Jennifer Rivera."  This ruling makes sense to me because Rhode Island Rule of Evidence 404(a) provides that "[e]vidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion."  Because the probative value of Pona's conviction relied on the aphorism "once a killer, always a killer," it was inadmissible under this Rule. See United States v. Rubio-Estrada, 857 F.2d 845, 852 (R.I. 1988).  (Indeed, the state agreed that a reference to Pona's conviction for Feliciano's murder would be unfairly prejudicial). 

Furthermore, while Rhode Island Rule of Evidence 404(b) does allow evidence about other crimes, wrongs, or acts "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable," I don't think that any of these "other purposes" were applicable to the conviction.  For instance, the fact that Pona was convicted after Jennifer was murdered could not have given him a motive to murder her.  So, Pona's conviction was out, but what about evidence tending to indicate that Pona murdered Feliciano?  Would evidence that Pona was actually guilty of murdering Feliciano tend to prove that he had a motive for murdering Jennifer?  This was the argument successfully presented by the state for admitting evidence that, inter alia, Pona's pager was found at the scene of Feliciano's murder and that his fingerprints were recovered from the car that was used to flee the area where that the homicide occurred.

And I think that most readers would agree that this ruling makes sense on at least an intuitive level.  If asked whether a person who was actually guilty of murder was more likely to murder the principal witness against him than a person who was actually innocent, I think that most people would answer, "Yes."  Thus, evidence that Pona actually killed Feliciano would be probative on the issue of whether he conspired to kill Jennifer.  But look yourself in the mirror and ask yourself this question:  Did you answer yes primarily because the actual murderer would have a greater motive to kill the witness or primarily because of the aphorism "once a killer, always a killer?"

On appeal, Pona successfully argued the latter, and here is why the Rhode Island Supremes accepted his argument.  They first noted that "[i]n deciding whether to admit evidence pursuant to Rule 404(b), a trial justice must carefully weigh the possibility that this evidence will unfairly prejudice the accused."  They next noted that even if this hurdle is leaped, the evidence still must be deemed admissible under Rhode Island Rule of Evidence 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."  Based upon these "twin analyses," the Court found that Pona was denied his right to a fair trial based upon the unfairly prejudicial nature of the evidence and vacated the judgments of conviction.

So, did the Court get it right on this issue?  I've been playing it through my mind all weekend, and my humble guess would be that it did not.  As noted above, it seems clear that the pager and fingerprint evidence had some probative value on the issue of motive, and I'm not convinced that this probative value was substantially outweighed by the unfair prejudice that jurors might use that evidence as propensity evidence (and the unfairness of that prejudice is mitigated by the fact that a jury actually found Pona guilty of the Feliciano murder).  In the abstract sense, though, I lack any conviction in my disagreement with the Court because I have this nagging sense in the back of my head that, removing the "once a murderer, always a murderer" rationale for the evidence, a defendant with significant evidence of his guilt (such as the pager and fingerprints) might actually have less motive to kill a prosecution witness than a defendant with minimal evidence of his guilt because the witness' testimony would be that much more important.

But there's one fact I've withheld to this point which tips the scales to the point where I feel that I'm not taking a complete shot in the dark with my disagreement.  And that fact is this:  The state presented the testimony of Dennis Fullen, a Pona family friend, who shared a cell with Pona as he awaited release on bail after he was indicted for Feliciano's murder.  And Fullen testified at trial that Pona discussed with him the evidence that the state had against him in that case and that Pona said he would have to “dump” Jennifer to defend the case successfully, which Fullen understood to mean that Pona believed that he had to kill her.  To me this ratchets up the probative value of the pager and fingerprint evidence and provides specific evidence that Pona had a motive to murder Jennifer.  Thus, in my mind, the Superior Court did not err in admitting the evidence.

So, let's return to the question that opened this post:  If a defendant is on trial for murdering a witness against him in a murder trial, is evidence that he committed the murder that was the subject of the first trial admissible in his subsequent trial to prove his motive to kill the witness?  My answer in a typical case would be a very tentative "Yes," with the answer in the Pona case being a slightly more firm "Yes."  So, what do readers think?

(I should note that simply because I disagree with the Rhode Island Supreme Court on this issue does not mean I disagree with their disposition of the case.  As I noted, Pona raised three evidentiary issues.  The second issue was that the Superior Court admitted the entire audio-tape recording of Jennifer's bail-hearing testimony, permitting the jury to hear the young victim's “voice from the grave” (as described by the prosecutor in closing) for hours on end.  The third issue was that Fullen unexpectedly provided irrelevant testimony that he frequently engaged in the illegal drug trade with Pona, and the Superior Court failed to declare a mistrial and instead issued a woefully inadequate instruction to jurors to ignore the testimony.  I agree with the Rhode Island Supreme Court that both of these decisions were erroneous, and I think that either could have independently formed the basis for a new trial.).

-CM

Age Ain't Nothing But A Number, Take 5: Why The Jurors Found R. Kelly Not Guilty

In the end, according to the Chicago Tribune, the jury acquitted R. Kelly not because they thought that the videotape was a fake, not because of the appearing/disappearing mole on the back of the man in the video, and not because of defense counsel's claim that R. Kelly's head may have been superimposed on another man's body a la the Wayans' Brothers movie, "Little Man."  Instead, the jury acquitted the R&B superstar based upon the simple fact that, like prosecution witnesses in the case, they were divided on the issue of whether the girl in the tape was in fact Kelly's then 13 year-old goddaughter.  According to the Trib article, "[m]ost jurors said they discounted all of the testimony from members of the alleged victim's family. Two aunts, an uncle and a cousin of the girl testified for the state that their relative was in the video. An aunt, uncle and a cousin testified for the defense that she was not."  According to one juror, "The family was divided. We couldn't go by that."  Instead, the jurors likely needed testimony by the alleged victim.

As I noted in my first post on the case back in November, such testimony was not to be.  As I noted back then:

     "A significant obstacle faced by the Illinois prosecutors is that the girl they claim is in the video, who is now in her early 20s, claims and has provided grand jury testimony that she is not the girl in the tape.  Prosecutors sought to rebut this denial through the testimony of Sharon Cooper, a developmental and forensic pediatrician, who was to testify that the girls' denial is behavior typical of victims of child pornography

     Now, if the alleged victim claimed that she was the girl in the video, Cooper could have testified that her behavior and symptoms were consistent with the behavior and symptoms of sexually abused children, and she has done so in several cases.  See, e.g. State v. Hess, 632 S.E.2d599 (N.C.App. 2006).  The problem in this case, however, is that the alleged victim is claiming she was not in fact the victim in the video, and the judge thus found that Cooper's testimony was inadmissible because it would have constituted an improper comment on the alleged victim's grand jury testimony."

While many evidentiary rulings and interesting twists in the case followed, it appears that the prosecution's fate was thus sealed last November.

-CM