EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, June 15, 2008

There Will Be Blood: Father's Day-Related Case Results in Affirmance of Trial Court's Evidentiary Ruling, But On Different Grounds

The Court of Appeals of Texas' recent opinion in Cooks v. State, 2008 WL 313050 (Tex.App.-Texarkana 2008), deals with a strange set of facts and contains a strange ruling, with the court affirming the trial court's opinion despite finding fault in its reasoning.  The brief facts of Cooks are as follows:

On the night of June 11, 2005 and in the early morning hours of June 12th, it became apparent that Kenneth Cooks might have done something to James Millis.  Cooks was riding ATVs and motorcycles with his brother and another person near the place that Cooks was living, which in turn was close to Millis' residence.  Cooks then disappeared for a while before being found by the other two men, sitting on a trailer at Millis' residence and making claims that Millis had instructed him to wait there for him to return.

In the wee hours of the next morning, Cooks appeared at the Kyle's Quick Stop convenience store three times. The first visit was at about 1:30 a.m., with Cooks acting "excited" and "fidgety" as he related to the attendant at one time that Jethro Bodine (of the Beverly Hillbillies television show) was in his family and at another time that he (Cooks) was either Bodine or that he was Robocop.  The attendant called the sheriff's office, but Cooks left before the deputies arrived. On the second visit, Cooks maintained that it was not he who had previously been at the convenience store, but rather, it had been his identical twin brother. who was Robocop, and whom Cooks killed in self defense.  The attendant again called the sheriff's department, but Cooks again left before the deputies arrived.

On Cooks' third visit, he was dressed in a blue and white striped shirt, which was later identified as either the same one or very similar to the one which Millis' daughter had just recently given him for a Father's Day present.  This time, the attendant called the sheriff's department, and a deputy promptly arrived and noticed a substantial amount of blood in the bed of the old pickup truck Cooks was driving; Cooks, however, indicated that he had hauled the body of a dead dog in the truck earlier and that the blood had come from the dog, an explanation which placated the deputy.

At around 7:00 A.M., two men saw Cooks driving a truck that belonged to Millis.  Then, at about 8:30 A.M. Reggie Lawler saw Cooks driving Millis' truck and followed him to Millis' mobile home, whereupon Cooks rapped on the side of Millis's mobile home and began to call out excitedly, "Hey, man, come here, blood."  This frightened Lawler, who went to a local police station which ended up being closed.  In the end, it was Cooks who called the police and reported that he found blood at Millis' mobile home.  A deputy sheriff subsequently arrived and found blood all over the premises, the mobile home, and the truck

The deputy sheriff read Cooks the Miranda warnings, and Cooks eventually admitted that he choked Millis, although he claimed that he did not kill Millis and that he was acting in self-defenseCooks was then taken to the emergency room of a hospital for a specialist to take samples from under his fingernails and to garner other forensic evidence. While he was waiting there, Cooks fell asleep, and, when he was awakened by the nurse, he inquired, "Did you find the body?"  The body was indeed found; Millis was dead, heaving been stabbed, choked, and beaten.  Cooks was eventually convicted of murdering Millis and sentenced to 70 years' imprisonment after the jury rejected his insanity defense despite evidence that he suffered from advanced schizophrenia.

On appeal, he claimed that the trial court erred by, inter alia, admitting his question to the nurse as an excited utterance.  The Court of Appeals agreed, finding that his question did not meet the requirements of the excited utterance exception to the rule against hearsay contained in Texas Rule of Evidence 803(2), which allows for the admission of "[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."  While the court did not explain its conclusion, it seems clear to me that it (1) could have found that being awoken by the nurse was not a startling event and/or that Cooks was not stressed/excited upon being awoken; and/or (2) must have found that even if being awoken was startling, Cooks' statement did not relate to being awoken by the nurse but instead related to the alleged murder of Millis.

The Court of Appeals, however, noted that even when the trial judge gives the wrong reason for his decision, if the decision is correct on any theory of law applicable to the case, it will be sustained.  The court then implicitly concluded that Cooks' statement was admissible as an admission under Texas Rule of Evidence 801(e)(2)(A) and explicitly found that it was not objectionable under Article 38.22 of the Texas Code of Criminal Procedure because the statement was spontaneously made and not made as the result of a custodial interrogation, which had ended when Cooks dozed off.  I agree with the Court of Appeals' opinion and find that it's consistent with both Texas precedent (see, e.g., Ruth v. State, 167 S.W.3d 560, 571 (Tex.App.-Houston 2005), and precedent from across the country on custodial interrogations.    

-CM 

June 15, 2008 | Permalink | Comments (0) | TrackBack (0)

Saturday, June 14, 2008

Sunshine State Split: Recent Case Reveals Split Among Florida Courts Over "False Reporting Exception" To Impeachment Rule

The recent opinion of the District Court of Appeal of Florida, Fourth District, in Washington v. State, 2008 WL 2356672 (Fla.App. 4 Dist. 2008), reveals some interesting distinctions between impeachment under the Florida Rules of Evidence and the Federal Rules of Evidence.  In Washington,  Aaron Washington was convicted of carjacking with a firearm and aggravated battery with a deadly weapon.  Testimony, including testimony by the alleged victim, revealed that the victim was a drug-dealer who entered into a drug deal with Washington.  During that deal, Washington allegedly took the drugs without paying for them, struck the victim repeatedly with a firearm, and with the help of two accomplices extracted him from his automobile, and stole it.  The alleged victim subsequently reported the crime, but omitted details about the drug deal.  This wasn't the first time that the alleged victim had been less than forthcoming in dealing with the police.  In an unrelated incident, the alleged victim lent his car to a friend, who became involved in a hit-and-run accident, prompting the alleged victim to file a false police report that the car had been stolen.  The jury, however, never heard this evidence because the trial judge granted the prosecution's motion to exclude this evidence, and its exclusion prompted Washington's appeal.

The District Court of Appeal first noted a distinction between the Florida Rules of Evidence and the Federal Rules of Evidence.  While Federal Rule of Evidence 608(b) allows a party to cross-examine a witness about specific acts of untruthfulness (although these acts can't be proven through extrinsic evidence), the Florida Rules of Evidence contain no similar provision.  Instead, Florida merely has Section 90.610 of the Florida Statutes, which is a counterpart to Federal Rule of Evidence 609, and which allows for impeachment of witnesses through evidence of prior convictions (It should be noted, however, that these rules are quite different; for instance, Federal Rule of Evidence 609(d) allows for impeachment of witnesses through evidence of juvenile adjudications in some cases while Section 90.610(1)(b) per se prohibits such impeachment).

Because the alleged victim was not convicted of a crime in connection with the prior false police report, he thus could not be impeached under Section 90.610, which would have seemed to foreclose the appeal.  But, as the District Court of Appeal noted, the District Court of Appeal of Florida, First District created a "false reporting exception" to Section 90.610, under which witnesses can be cross-examined about false reports notwithstanding the plain language of the Florida statutes based upon recognition of a long line of authority from Florida courts allowing for such impeachment.  See, e.g., Jaggers v. State, 536 So.2d 321, 327 (Fla.App. 2 Dist. 1988).  The Fourth Circuit in Washington, however, noted that the First Circuit rejected this exception and then indicated that it would join that court in "respectfully declining" to adopt the Second District's "false reporting exception."

My take on the situation is that the Florida courts are free to read their state's statutes as they see fit.  However, I see a potential problem for the First and Fourth Districts based upon the United States Supreme Court's opinion in Chambers v. Mississippi, 410 U.S. 284 (1973), which held that a state cannot apply its evidence laws in a manner that denies a criminal defendant a fair trial in accord with traditional and fundamental standards of due process.  In Chambers, one of the evidence laws applied in such a manner was, as in Washington, a law preventing the defendant from impeaching a witness.  Because both the Federal Rules of Evidence and, as far as I know, most if not all state rules of evidence besides Florida's would have allowed Washington to impeach the alleged victim, I can see a solid argument under Chambers that Florida courts must adopt a "false reporting exception" in cases where a criminal defendant seeks to impeach a key prosecution witness through evidence of a false police report by that witness.

-CM   

June 14, 2008 | Permalink | Comments (2) | TrackBack (0)

Friday, June 13, 2008

Age Ain't Nothing But A Number, Take 4: R. Kelly Found Not Guilty Of Child Pornography

The long strange prosecution of R. Kelly finally ended today in a Chicago courtroom, with jurors finding the R&B superstar not guilty of all 14 counts of child pornography in connection with a sex tape he allegedly made of himself and a young girl who might have been as young as 14.  I've written before about the problems with the prosecution's case, ranging from the alleged victim refusing to testify to the prosecution only having a copy of a copy of a copy of the videotape which, while admissible, was likely given little weight by the jury.  As I learn more about the jury's reasoning, I will likely have more to report.

-CM

June 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Former Charger's Trial Will Not Be Supercharged: Judge Find Character Evidence Inadmissible In Steve Foley's Suit Against Officer Who Shot Him

Pursuant to the ruling of Superior Court Judge Richard Strauss, jurors deciding the case between former San Diego Charger linebacker Steve Foley and the police officer who shot him will neither hear about two prior violations of state law by the officer, nor about two prior run-ins with the law by Foley.  The facts of the case are as follows:

On Labor Day weekend, 2006, off-duty Coronado police officer Aaron Mansker trailed Foley's car to his Poway home based upon suspicion that Foley was driving while intoxicated and a threat to others.  Officer Mansker claimed that upon arrival at Foley's home, Foley approached him and reached into his pants in a threatening manner, prompting Mansker to shoot him three times in self-defense.  These gunshots prompted Lisa Maree Gaut, a passenger in Foley's car, to jump into the driver's seat of his Oldsmobile Cutlass and drive the car toward Mansker.  Gaut claimed that she was simply trying to defend Foley, but a jury disagreed last April, convicting her of assault with a deadly weapon (the Oldsmobile) and drunken driving (Foley was acquitted of the more serious charge of assault on a peace officer).

Meanwhile, Foley pleaded guilty to drunk driving in connection with the incident, which ended his NFL career.  At the same time, he claimed that he in no way threatened Mansker and thus sued the officer and the City of Coronado for excessive force and negligence.  Different groups have different takes on the incident, with Mother's Against Drunk Driving honoring Mansker, in part for his actions in pursuing Foley, and the ACLU being outspoken in its criticism of the San Diego District Attorney's handling of the incident.  Pursuant to the pre-trial ruling of Judge Strauss, however, the trial on Foley's allegations will not include evidence about these groups' positions, nor will it include the following evidence:

     -the fact that Mansker's father was killed by a drunken driver when Mansker was a teenager living in Escondido;

     -the fact that Masnker had violated state law and department policy at least twice by pursuing suspected drunken drivers while off duty; and

     -the fact that Foley had at least two prior encounters with the law -- both while allegedly intoxicated (including an incident with Foley's pit bulls).

So, why was this evidence deemed inadmissible?  The answer lies in California Code of Evidence Section 1100, which states that "[e]xcept as otherwise provided by statute, any otherwise admissible evidence (including evidence in the form of an opinion, evidence of reputation, and evidence of specific instances of such person's conduct) is admissible to prove a person's character or a trait of his character."  In other words, evidence of Mansker's past vigilante-style justice is inadmissible to prove that he had a "Temperance Wish," which he acted upon when he pursued and shot Foley.  Meanwhile, evidence of Foley's prior encounters with the law is inadmissible to prove that he had a propensity to cause problems with the law enforcement officials while intoxicated and thus that he threatened Mansker while drunk.

Now, it's possible that both sides tried to admit this evidence under California Code of Evidence 1101(b), which states that "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."

Under this rule, Foley might have claimed, inter alia, that Mansker had a common plan or scheme of meting out vigilante style justice on drunk drivers, and Mansker might have clamed that Foley had a common plan or scheme of getting drunk and instigating the police.  But it seems to me that neither had enough prior acts and that their prior acts were not similar enough to establish a distinctive enough pattern to allow for the admissibility of the evidence.  Thus, I think that the judge's ruling was proper.

-CM

June 13, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 12, 2008

No Compromise In K-Town: 11th Circuit Finds Rule 408 Inapplicable In Katrina Case

The Eleventh Circuit's recent opinion in Preis v. Lexington Ins. Co., 2008 WL 2247140 (11th Cir. 2008), contains a discussion of the most fundamental, and yet sometimes overlooked, element of Federal Rule of Evidence 408.  In Preis, the home of Richard and Victoria Preis on Mobile Bay, in Point Clear, Alabama, was severely damaged by Hurricane Katrina. According to Richard, the house had a replacement value in excess of $1,200,000 and the loss on personal property in the house was in excess of $750,000.  Richard had two sets of insurance policies covering the house and its contents. First, he had a homeowner's policy ("the Lexington policy"), which was an all-risk policy that insured against any direct loss of personal or structural property of the home at issue, with certain exclusions, such as an exclusion for loss caused "directly or indirectly" by "water damage."

The second relevant set of insurance policies was for flood damage; Richard had a primary flood policy with Hartford Insurance Company, and an excess flood insurance policy with WNC Insurance Services. Following Hurricane Katrina, Richard submitted a claim to both Hartford Insurance and to WNC Insurance Services and received a total of $587,659.71 from them, the full policy limits of both policies.  Richard also notified Lexington of the loss in order to recover for wind damage, prompting Lexington to retain an independent adjuster, Reid Jones McRorie & Williams, to investigate the claim. Reid Jones issued a final report several months later, indicating that the majority of the damage to the house was a result of "storm surge," and that the "[moderate] wind damage was primarily limited to the roof." Reid Jones estimated that Pries was due a payment in the amount of $72,155.96 for the damage that had not been caused by flood waters, leading Lexington to make Richard an unconditional tender for $53,135.97, which reflected Reid Jones' estimate less the policy's wind deductible of $19,020.00.

Richard rejected Lexington's tender and notified Lexington of his intent to file a lawsuit, whereupon Lexington retained the engineering services of Project Time & Cost ("PT & C"), which confirmed that the majority of the house was damaged as a result of storm surge, but that some damage was attributable to wind damage. Based on PT & C's report, Reid Jones readjusted Richard's estimated loss, and increased their unconditional tender by $11,031.90 to $64,167.86. Pries again rejected the loss amount and sued Lexington.

At trial, Lexington presented evidence concerning, inter alia, the insurance payments from Hartford and WNC to prove that the majority of damage was caused by flooding.  At the end of the trial, the jury awarded Richard and Victoria $70,000 for damages to the structure attributable to wind, and they appealed to the 11th Circuit, claiming that the trial court erred in allowing the introduction of evidence about the insurance payments from Hartford and WNC.  The Eleventh Circuit noted that Federal Rule of Evidence 408 provides in relevant part that:

"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."

In other words, if Hartford and/or WNC refused to pay the full policy limits on Richard's insurance policy, and the parties eventually reached a settlement regarding how much money would be paid, such as $400,000, the amount of the parties settlement would have been inadmissible to prove that flooding caused $400,000 of damage to the house.  According to the court in Preis, however, the 11th Circuit has "specifically rejected the notion that 'the payment of a claim by an insurance company, where there is no evidence that the insurance company ever disputed the claim, qualifies as a compromise within the meaning of Rule 408.'...Since [Richard] submitted his claim to the flood insurers and received the full policy limits from both of them absent any dispute as to the validity of his claim, the district court did not abuse its discretion in finding that Rule 408 did not bar admissibility of the payments."

In other words, in such cases, there is no "claim that was disputed as to validity or amount, making Rule 408 inapplicable.

-CM 

June 12, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 11, 2008

Dance The Trial Away?: Federal Judge Denies Motion For Mistrial In Recreation Center Case

A federal judge in New York has refused to declare a mistrial despite a defense attorney violating Federal Rule of Evidence 609(b) by claiming in his opening statement that the plaintiff had a "felonious conviction."  The case in which this ruling was rendered involves the lawsuit brought by businessman Ross Catalano against the town of Henrietta, former Supervisor James Breese, and former Fire Marshal Chris Roth for $30 million.  Catalano used to run FunQuest  (or Fun Quest), a recreation center which counted many African American teenagers among its patrons.  After a March 2002 riot-like incident at FunQuest, the Town of Henrietta amended Catalano's special use permit for the center, a move that prohibited dancing at the facility.  According to Catalano, this change in his permit forced him to close the facility and lose millions of dollars.

According to Catalano, the move was also racially motivated.  Catalano claims that before the Henrietta town board told FunQuest it no longer could hold teen dances, town officials said that the reason was that too many "city kids," as opposed to Henrietta teens, came to the club's open dance parties.  Rochester New York is 48.5% Caucasian and 38.5% African American while the neighboring suburb of Henrietta is 84% Caucasian and 7% African American. Meanwhile, Breese has denied these allegations.

The jury, however, almost never got to hear this evidence after defense counsel's inappropriate behavior, but now the case will proceed after potentially inappropriate behavior by the judge.  As noted, defense counsel mentioned in his opening statement that Catalano had a "felonious conviction."  And while defense counsel apparently did not mention the nature of that conviction, the articles on the case make it clear that it was more than 10 years old.  Presumably, defense counsel planned to use this conviction to impeach Catalano's forthcoming testimony at trial, triggering Federal Rule of Evidence 609(b), which states that:

     "Evidence 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. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence."

Catalano's attorney moved for a mistrial, claiming that defense counsel failed to give notice, and U.S. Magistrate Judge Jonathan Feldman found that defense counsel's mention of the conviction was error because he failed to give prior notice of his intent to use the conviction at trial.  Nonetheless, Judge Feldman found that a mistrial was not the appropriate remedy on the ground that "it would be difficult to seat another jury because of media coverage of the trial."  Instead, he told the jury that defense counsel's statement about the felony was inappropriate and not to be considered as evidence.

While it's difficult to second guess Judge Feldman without knowing all of the facts of the case, it seems to me that he made the wrong decision.  Catalano's credibility and whether he made up the racial basis for the permit amendment seems to be a (the?) central issue in the case.  Furthermore, the Federal Rules evince a clear intent to protect individuals from old convictions by requiring not only advanced notice by the party seeking to introduce them but also by requiring specific factual findings that their probative value substantially outweighs their prejudicial effect.  Therefore, it's more likely than not that Catalano's conviction would have been deemed inadmissible even if notice were given. See Federal Rule of Evidence 609, advisory committee's note ("Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness."). 

It would be one thing if Judge Feldman thought that the trial could proceed without worry about the trial being tainted by the evidence, but it appears that he denied a mistrial because of the difficulty of seating a new jury based upon media coverage.  But if that's a burden that Catalano was willing to bear, as is clear from his motion for a mistrial, I don't see how Judge Feldman could have denied the motion.

-CM

June 11, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 10, 2008

"Against The Defendant": Oklahoma Court To Address Whether Defendant's Wife Can Testify About Rejected Plea Deal

The trial of Oklahoma state auditor and inspector Jeff McMahan has raised an interesting issue under Federal Rule of Evidence 410.  McMahan is currently standing trial in an Oklahoma federal district court, facing charges of accepting illegal campaign contributions, trips, and jewelry from a southeast Oklahoma businessman.  Specifically, the federal grand jury indictment accused McMahan and his wife, Lori, of benefiting from trips, jewelry, and more than $100,000 in illegal contributions to the auditor's 2002 campaign from Oklahoma businessman Steve Phipps.  The indictment claimed that Jeff then returned the favor, sometimes at his wife's urging, by giving special favors to Phipps' abstract companies, which the auditor's office regulated.

The prosecution recently rested its case against Jeff, which has raised the question of whether defense counsel can call Lori to testify that she rejected a plea deal with prosecutors under which she ostensibly would have testified against her husband.  Defense counsel wants to use this evidence to establish that Lori had an "innocent state of mind," which obviously would benefit Jeff because it is alleged that Lori also participated in the illegal "you scratch my back, I'll scratch yours" behavior with which her husband is charged.  Prosecutors have claimed that a federal rule of evidence prohibits such testimony while defense counsel has countered that appeals courts have allowed it.  So, who's right?

Well, Federal Rule of Evidence 410 states, inter alia, that

     "Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: * * *

(2) a plea of nolo contendere; * * *

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it." (emphasis added).

As I highlighted above, Rule 410 only prohibits the introduction of statements made during plea discussions against the defendant; it does not explicitly proscribe the introduction of such statements against the prosecution.  Thus, Rule 410 should not, per se, preclude a defendant or defense witness from testifying that he or she rejected a plea bargain to prove an innocent state of mind.  Indeed, this is exactly what the Second Circuit found in United States v. Biaggi, 909 F.2d 662, 690-91 (2nd Cir. 1990). 

Of course, it's important to note that simply finding Rule 410 is inapplicable does not automatically make plea-related statements admissible.  Such statements still have to be relevant under Federal Rule of Evidence 401 and pass the balancing test under Federal Rule of Evidence 403.  And on that front, the court in Biaggi was equivocal.  It noted that a witness rejected an offer of immunity in the case before it and found that rejection of an offer of immunity was clearly admissible as evidence of an innocent state of mind.  The court then proceeded to find that "[r]ejection of an offer to plead guilty to reduced charges could also evidence an innocent state of mind, but the inference is not nearly so strong as rejection of an opportunity to preclude all exposure to a conviction and its consequences. A plea rejection might simply mean that the defendant prefers to take his chances on an acquittal by the jury, rather than accept the certainty of punishment after a guilty plea. We need not decide whether a defendant is entitled to have admitted a rejected plea bargain."

Since the Biaggi case, most courts have applied its analysis when confronted with rejected plea deals, but have come to different conclusions as to the ultimate question of admissibility, with many cases turning on their facts.  At the same time, some courts, usually relying on the 8th Circuit's opinion in United States v. Verdoon, 528 F.2d 103 (8th Cir. 1976), have found that evidence of statements made during plea discussions are per se inadmissible, regardless of whether they are offered against the defendant or against the prosecution.

In my mind, these courts are reaching a nonsensical result.  Why?  Well, reconsider the exception  from Rule 410 listed above, which allows for, inter alia, statements made during plea discussions to be admissible "against the defendant" if "another statement made in the course of the same plea or plea discussions has been introduced..." Clearly, this exception indicates that statements made during plea discussions are not per se inadmissible, and the Advisory Committee's Note to the 1979 amendment to Federal Rule of Criminal Procedure 11(e)(6) [which is now Rule 11(f) and has been "merged" with Federal Rule of Evidence 410] explains the reason for this exception thusly:  "This change is necessary so that, when evidence of statements made in the course of or as a consequence of a certain plea or plea discussions are introduced under circumstances not prohibited by this rule (e.g., not 'against' the person who made the plea), other statements relating to the same plea or plea discussions may also be admitted when relevant to the matter at issue." (emphasis added).  In other words, the Advisory Committee's Note clearly indicates that defendants are not categorically proscribed from presenting plea related statements against the prosecution.

My disagreement with this line of case notwithstanding, this still leaves the question of how federal courts in Oklahoma and the Tenth Circuit (which covers federal courts in Oklahoma) have dealt with the issue.  Unfortunately, I found no cases where these courts dealt with this precise issue.  What I do know, however, is that the Tenth Circuit construes the phrase "against the defendant" in Federal Rule of Evidence 410 in a (too) restructive manner in the context of nolo contendere pleas.  A criminal defendant who pleads guilty in a criminal case can have his plea used against him in a subsequent civil or criminal case, and thus criminal defendants typically use nolo contendere pleas (or "no contest" pleas) so that their pleas can't be used against them in subsequent proceedings pursuant to Rule 410.  Obviously, Rule 410 protects such criminal defendants when they remain defendants in subsequent criminal or civil trials, but what happens when a pleading criminal defendant becomes a civil plaintiff in a related proceeding?  For example, what happens to a criminal defendant who pleads nolo contendere to arson and then brings a civil action against his insurance company for refusing to pay on his insurance policy covering the burned property?

In my mind, the answer is clearly that the plea should be inadmissible, an argument I made in my article, The Best Offense is a Good Defense.  The Tenth Circuit, however, is among those courts coming to an opposite conclusion, and the way it achieved this result is through what I have dubbed "semantic gymnastics."  According to the Tenth Circuit in Rose v. Uniroyal Goodrich Tire Co., 219 F.3d 1216, 1220 (10th Cir. 2000):

     "This case does not present the kind of situation contemplated by Rule 410: the use of a nolo contendere plea against the pleader in a subsequent civil or criminal action in which he is the defendant. In this case,...the persons who entered prior no-contest pleas are now plaintiffs in a civil action. Accordingly, use of the no-contest plea...is not 'against the defendant' within the meaning of Fed.R.Evid. 410. This use would be more accurately characterized as 'for' the benefit of the 'new' civil defendants...." (qutoing Walker v. Schaeffer, 854 F.2d 138, 143 (6th Cir. 1988).

As I argued in my article, this alleged dichotomy is nonsensical, but that's a fight for a different day.  What the Tenth Circuit's opinion tells us is that it only precludes pleas and plea related statements under Rule 410 in the one scenario where a criminal defendant makes a plea or a plea related statement and is now a defendant in a subsequent proceeding having the plea offered against him.  Thus, the court in McMahan's trial should find the wife's rejection of the plea deal admissible.

-CM

June 10, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, June 9, 2008

Dr. Giggles?: California Appellate Court Finds Testimony About Prior Child Dental Abuse Was Improperly Admitted Character Evidence

One of my least favorite days of the year is my trip to the dentist's office, which is probably fueled by the fact that I had about 12 baby teeth pulled when I was a kid because those suckers just didn't want to come out.  Well, according to a recent lawsuit in California, the child patients of Dr. Donald Ryan had a more legitimate reason to fear entering his dentist's chair, but according to the ruling of the Court of Appeal of California in Bowen v. Ryan, jurors on re-trial will not hear their testimony.

In Ryan, Dr. Ryan was a dentist in practice for about 28 years who had treated around 45,000 patients, with the vast majority of his patients being children, some of whom had been referred by other dentists because they were difficult to treat.  One of those patients was 8 year-old D'Michael Bowen.  In 2002, Bowen developed an infected tooth but refused to open his mouth when his mother took him to a first dentist.  When Bowen's condition worsened, his mother took him to Dr. Ryan, who planned to do a pulpectomy (a procedure similar to a root canal) and applied a topical anesthetic prepatory to Bowen. It is at this point that Bowen's version of events and Dr. Ryan's version of events diverged.

According to Bowen, he began to cry when he saw Dr. Ryan take a syringe from the counter, said that he did not want a shot, and cried “no, no, no” over and over.  Bowen began kicking his feet and he put his arms above his stomach, whereupon Dr. Ryan placed his arm on the right side of Bowen's neck and pushed hard, making it impossible for him to breathe. Bowen, however inconsistently described the amount of time that Dr. Ryan placed his arm on his neck, with his estimate ranging from 3 to 4 to 60 seconds.  Bowen was consistent in alleging that Dr. Ryan finally let go when his assistant told him to stop.  Bowen then used the bathroom, and when he returned, Dr. Ryan slammed him against a wall and held him there, angrily asking if there was going to be a problem and if Bowen would let him work on his teeth.  Although Bowen was scared, he said he would cooperate, and Dr. Ryan completed the planned treatment.  Bowen thus brought  causes of action against Dr. Ryan sounding in assault, battery, and professional negligence.

Bowen's version of events was contradicted by Dr. Ryan (and his dental assistant).  Dr. Ryan claimed that after applying the topical anesthetic, he approached the injection site with an unsheathed syringe, whereupon Bowen began kicking and grabbed Dr. Ryan's wrist with both of his hands.  Concerned that the needle would hurt Bowen, his dental assistant, or himself, Dr. Ryan put his forearm on Bowen's chest to stabilize the syringe and repeatedly told Bowen to let go of his arm.  Bowen then asked to go the bathroom, and Dr. Ryan allowed him to do so after he let go of his arm.  Before Bowen left the room, however, Dr. Ryan put his hand on Bowen's chest; he did not push him, but instead explained that his job was to fix Bowen's teeth, and that they could either be fixed here or at the hospital.  When Bowen later returned from the bathroom, Dr. Ryan continued the procedure without further incident

At trial, Bowen presented testimony relating to 9 other incidents of alleged dental abuse of child patients by Dr. Ryan, which involved, inter alia, slapping children, placing a hand over a child's mouth so the child couldn't breathe, strapping down and hitting a child, and lifting a child by the arms.  The jury ultimately returned a nine-to-three verdict in favor of plaintiff, awarding him $10,000 for negligent treatment, $10,000 for dental battery, and $70,000 for battery.

On Dr. Ryan's appeal, the Court of Appeal of California noted that the testimony relating to the 9 other incidents would be inadmissible under California Code of Evidence Section 1101(a) if it were simply introduced to prove that Dr. Ryan had a propensity to commit dental abuse against children and thus likely committed dental abuse against Bowen.  It noted, however, that the testimony could have been admissible to prove common plan or design under California Evidence Code Section 1101(b).

The problem that the appellate court found with this latter rationale, though, was that the testimony

     "did not demonstrate the existence of a common plan.  Defendant was accused of putting his arm against plaintiff's throat when giving him an injection and then later shoving plaintiff against a wall. None of the witnesses described similar treatment. Some said they were hit, some said they were restrained, some said that defendant employed a hand-over-mouth technique. Neither the context of these other incidents nor the acts complained of shared the requisite common features with the incident plaintiff alleged to have happened."

Moreover, the court found that testimony about nine incidents was highly selective and could not be considered representative of Dr. Ryan's 28 year/45,000 patient career.  The court thus reversed and remanded the case with instructions that this testimony be deemed inadmissible on re-trial

I agree with the court's decision.  The Bowen incident and the 9 similar incidents weren't that similar at all, and while 9 events would normally seem like a lot of prior incidents, decreasing the amount of similarity needed (i.e., in the case of a serial killer), in the case of a dentist with 45,000 patients, 9 events over 28 years seems, as the court noted, unrepresentative of Dr. Ryan's career.

-CM

June 9, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 8, 2008

Recalculating, Take 2: New York Appellate Court Finds Warrant Isn't Needed Before GPS Device Is Affixed To A Suspect's Vehicle

Last month, I wrote about a Tennessee case where police had, without a warrant, affixed a GPS tracking device on the Jeep of a man they suspected of being a serial rapist, whom they referred to as the "Wooded Rapist."  In that post, I noted that there was a split of authority across the country as to whether police officers have to obtain warrants before attaching such devices to vehicles.  The case I cited in support of the proposition that a warrant is not required was a case from a New York trial court:  People v. Gant, 802 N.Y.S.2d 839, 846 (N.Y.Co.Ct. 2005).  At that point in time, however, no appellate court in New York had ever addressed the issue of whether police can so affix a GPS tracking device without a warrant, but that all changed with the opinion of the New York Supreme Court, Appellate Division, Third Department in People v. Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), on Thursday.

In Weaver, a police officer, in the course of investigating a series of burglaries and acting without a warrant, attached a GPS device under the bumper of Scott Weaver's van while it was parked on a public street. Based upon the data retrieved from this device and other evidence, Weaver and a codefendant were arrested and charged with burglary in the third degree and grand larceny in the second degree in relation to a theft from a K-Mart Store, as well as burglary in the third degree and petit larceny in relation to a theft from a meat market six months earlier. After he was convicted of these crimes, Weaver appealed to the appellate division, claiming, inter alia, that the trial court erred in denying his motion to suppress all of the evidence obtained against him as a result of the warrantless placement of the GPS device on his van.

The Third Department began by noting that only two New York trial courts had addressed the issue and that they had come to different conclusions (In the aforementioned Gant case, the court found that no warrant was required; in People v. Lacey, 3 Misc.3d 1103(a) (County Ct Nassau County 2004), the court found that a warrant was required absent exigent circumstances).  It then noted, however, that "[n]o appellate court in New York...has yet considered whether such electronic surveillance constitutes a violation of the vehicle owner's constitutionally protected reasonable expectation of privacy."

In addressing this issue, the Third Department indicated that it was guided by the well-settled principle that "where there is no legitimate expectation of privacy, there is no search or seizure" under the Fourth Amendment.  It then found that pursuant to federal precedent, a defendant can neither reasonably expect privacy in the publicly accessible exterior of his or her vehicle, nor in the location of his or her vehicle on public streets.  It thus found that the warrantless attachment of the GPS to Weaver's vehicle was legal because collecting information about the movement of a vehicle on public thoroughfares by means of an electronic device attached to a vehicle's undercarriage, which does not damage the vehicle or invade its interior, does not constitute a search or seizure in violation of the Fourth Amendment.

Moreover, the Third Department found that nothing in the Fourth Amendment prohibits the police from using science and technology to enhance or augment their ability to surveil that which is already public.  Furthermore, the court concluded that "[i]nasmuch as constant visual surveillance by police officers of defendant's vehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant's Fourth Amendment protections.

I still disagree with this final conclusion and refer readers back to my previous post, where I quoted the Supreme Court of Washington's opinion in State v. Jackson, 76 P.3d 217 (Wash. 2003), which found that a warrant was required, noting, inter alia, that it perceived "a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses...[T]he intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life."

And apparently, Justice Stein, who dissented in Weaver, agreed, citing liberally to the Jackson opinion in concluding that a warrant was required before the GPS device was affixed.  Now, Justice Stein actually found that the Fourth Amendment to the U.S. Constitution did not require a warrant, but he found that the New York Constitution did require a warrant because it affords a broader scope of protection than that accorded by the Federal Constitution in cases concerning individual rights and liberties.  And, like the court in the Jackson case, Justice Stein defended his position with what I regard as quite elegant language:

     "Specifically, I would reject the 'premise...that information legitimately available through one means may be obtained through any other means without engaging in a search....'  Instead, I would adopt the principle that 'a privacy interest...is an interest in freedom from particular forms of scrutiny'...and would find that '[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny'...and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause."

Do readers have an opinion on this issue?  Do drivers shed their constitutional rights against warrantless searches at the garage door?  Is affixing a GPS device to a vehicle the same level of intrusion as police surveillance?  Are readers comfortable with the Third Department's ruling, or are there concerns about the level of surveillance that can take place with today's (and tomorrow's) technology?

-CM

June 8, 2008 | Permalink | Comments (1) | TrackBack (0)

Saturday, June 7, 2008

Creating The Vermonster? Murder Case Reveals That Vermont Allows For Broader Post-Trial Jury Impeachment Than Do The Federal Rules Of Evidence

A Vermont court's refusal to allow a convicted defendant's attorney reveals an interesting wrinkle in Vermont Rule of Evidence 606(b).  Brian L. Rooney was convicted of murdering University of Vermont student Michelle Gardner-Quinn.  Specifically, the prosecution was able to prove that Rooney raped and killed the college senior after a chance meeting with her in which she asked to use his cell phone.  After Rooney was convicted, he moved to have his attorney question juror Randy Chadurjian, with the goal of having Chadurjian ultimately testify that Judge Michael Kupersmith's instructions to jurors in the case were deficient.  Judge Kupersmith denied the motion, finding that while Rooney could appeal based upon the allegedly deficient jury instruction, he could not prove that the jury instructions were deficient through the testimony of jurors.

This ruling ostensibly was premised upon Vermont Rule of Evidence 606(b), which states that "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received; but a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether any juror discussed matters pertaining to the trial with persons other than his fellow jurors."

Vermont Rule of Evidence 606(b) is thus similar to Federal Rule of Evidence 606(b) in that it prevents jurors from impeaching their verdicts post-trial through testimony about anything "internal" in the jury deliberation process (such as ignoring/misconstruing jury instructions or failing to consider a particular issue/claim/defense) but allows testimony about extraneous prejudicial information (such as inadmissible evidence finding its way into the jury room) and/or improper outside influences (such as threats from the friends of a party).  The "wrinkle" added by Vermont Rule of Evidence 606(b) is the last clause, which also allows for post-trial juror impeachment when "any juror discussed matters pertaining to the trial with persons other than his fellow jurors."  There is no similar exception in Federal Rule of Evidence 606(b).  What is the purpose of this clause?

Well, according to the Reporter's Notes to the Rule, "[t]he provision of the rule allowing juror testimony as to statements to outsiders reflects the requirement of the juror's oath, 12 V.S.A. Section 5803, forbidding such statements. Violation of the oath may invalidate the verdict."  12 V.S.A. Section 5803 lists the oath that jurors must take: "You solemnly swear that you will well and truly try each and every issue which may be given you in charge during the present term of this court, agreeably to the evidence given you in court, and the laws of this state, and true verdicts give; your own counsel and that of your fellows you will duly observe and keep; you will say nothing to any person about the business and matters you may at any time have in charge, but to your fellow jurors, nor will you suffer any one to speak to you about the same but in court; and when you have agreed on a verdict, you will keep it secret until you deliver it in court. So help you God."

I see a clear problem with Vermont's reasoning.  Let's take the classic case where Rule 606(b) is generally thought to apply:  jurors ignoring jury instructions/issues.  So, for instance, let's say a defendant is on trial for first degree murder, which requires a jury finding of premeditation.  But let's say that the jurors ignore or misunderstand the jury instructions and fail to consider the issue of premeditation before finding the defendant guilty.  Typically, this would be considered "internal" to the jury deliberation process, rendering jurors unable to testify about the omission pursuant to Rule 606(b).  But, according to Vermont's jury oath, "You solemnly swear that you will well and truly try each and every issue which may be given you...."  Wouldn't the juror behavior in this case violate the jury oath, meaning that Vermont Rule of Evidence 606(b) should allow for post-trial juror impeachment?

It seems to me that it should, and yet the Rule clearly does not.  And yet the Rule does allow for post-trial juror impeachment in a case where a juror went home and discussed the details of the case with his wife, even if the wife did not influence his decision.  I admire Vermont's attempt to allow for juror impeachment in a broader range of cases, but it seems to me that the logic behind its unique exception justifies post-trial jury impeachment in a broader range of cases than the Rule actually allows.

-CM 

June 7, 2008 | Permalink | Comments (3) | TrackBack (0)

Friday, June 6, 2008

Prejudice And Prejudice: New Jersey Court Finds White Supremacist Evidence Admissible In Murder Case

Walter Dille Jr. is on trial in new Jersey for the murder of Cindy Cade, and African-American woman and mother of two.  Now, pursuant to rulings by Superior Court Judge Albert Garofolo, jurors will be able to hear evidence about Dille's white supremacist views and his alleged confession to the crime

The prosecution alleges that Dille walked up to Cade the morning of Dec. 16, 2005, as she was getting out of her car outside the Regal Cinema in the Hamilton Commons shopping center in Hamilton Township.  They contend that Dille told Cade to get back in the car and shot her in the head, with Cade dying from a single bullet wound.

While Dille was being booked for the crime, and being asked "routine" questions by Atlantic County Corrections Officer Sean McNally, he allegedly replied, "I just shot a black woman that I don’t even know."  Ostensibly, Dille was not given his Miranda warnings before making this confession, but Judge Garofolo nonetheless found the confession admissible because he found that Dille's statement was voluntary did not come during custodial interrogation. See State v. O'Neal, 921 A.2d 1079, 1094-95 (N.J. 2007).

Judge Garofolo also found that several jail letters and drawings Dille composed while in jail which detail his white supremacist views will be admissible at his trial, and the same goes for testimony from his ex-girlfriend, who will allegedly testify to derogatory racial remarks made by Dille.  None of this evidence is objectionable on hearsay grounds because the letters, drawings, and statements by Dille are all admissions of a party-opponent (the criminal defendant) under New Jersey Rule of Evidence 803(b)(1).  Furthermore, while Dille might have claimed that the probative value of such evidence was substantially outweighed by the risk of unfair prejudice under New Jersey Rule of Evidence 403, most courts have held that evidence of racial animus passes the 403 balancing test when a defendant is charged with an allegedly racially motivated crime. See, e.g., United States v. Allen, 341 F.3d 870, 886-87 (9th Cir. 2003) (finding admissible "skinhead and white supremacist evidence includ[ing] color photographs of defendants' tattoos (e.g., swastikas and other symbols of white supremacy), Nazi-related literature, group photographs including some of the defendants (e.g., in “Heil Hitler” poses and standing before a large swastika that they later set on fire), and skinhead paraphernalia (e.g., combat boots, and arm-bands with swastikas)).

-CM

June 6, 2008 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 5, 2008

Dexter In The Dark, Take 2: Is Dr. Hayne Qualified To Render Expert Testimony?

On Saturday, I wrote a post about a Mississippi case, where the Court of Appeals of Mississippi found that forensic pathologist Dr. Hayne properly rendered expert testimony on blood spatter evidence.  The issue I raised in that post was whether we would usually expect a forensic pathologist to be able to interpret blood spatter evidence or whether the situation would be more analogous to a dermatologist testifying about HIV?  Well, apparently, there is a much more troubling issue raised by that case.  Earlier, this week, I was sent an e-mail by Radley Balko, who lives in my old stomping grounds of Alexandria, Virginia, and is a senior editor at Reason magazine and bloger at the Agitator.  According to the e-mail:

     -"I can't speak for what other courts have said, but I can tell you that the doctor in the case you mention -- Mississippi's Dr. Steven Hayne -- frequently testifies to matters he has no business testifying to.  Moreover, the guy really shouldn't even be testifying as a forensic pathologist.  I've been trying to draw attention to Hayne for months now.  I wrote about him initially in a long piece for Reason magazine (my employer), along with shorter pieces in the Wall Street Journal and Slate.  Thus far, it seems that Mississippi's courts have no interest in reining him in."

Balko then directed me to the following writings he's done on Hayne:

     -CSI Mississippi;

     -a series of blog posts about Hayne under the forensics category of his blog; and    

     -The Bite-Marks Men (which details the plights of two recently exonerated men who were convicted in part based upon Dr. Hayne's testimony and indicates that Hayne isn't board-certified in forensic pathology).

In a later e-mail, Balko wrote me, "It would be difficult to exaggerate how much damage this guy has done, both in the criminal courts and in Mississippi's tort and medical malpractice cases."  Looking through his writings on Dr. Hayne, I am convinced that Dr. Hayne is not qualified to be rendering expert testimony, and I direct readers to his compelling writings on the matter.  Unlike with blood spatters, in this case, I would say that the evidence speaks for itself.

-CM

June 5, 2008 | Permalink | Comments (0) | TrackBack (0)

Follow My Voice: New York Missing Child Case Raises Questions About Admissibility Of Digital Voice Analyses

The Jaliek Rainwalker case in Guilderland, New York, provides a nice opportunity to discuss digital voice analyses.  Rainwalker has been missing since last November, and police consider his father, Stephen Kerr, a "person of interest" in the child's disappearance.  T.J. Ward from Georgia and Tom Winscher from Wisconsin donated their services in the case.  Specifically, Winscher listened to a 28-minute interview of Kerr and his wife, Jocelyn McDonald, in early December and used a digital voice analysis that he says can be applied to recordings and uses changes in the subject's voice to gauge truthfulness.  An article on the case, however, notes that "Like the results of a lie detector test, findings are not admissible in court."

My research reveals, however, that such a sweeping statement is unwarranted.  Let's start with the opinion of a New York trial court in 1982 in People v. Bein, 114 Misc.2d 1021 (N.Y. Sup. 1982), which provides a nice description of digital voice analyses.  According to the court in Bein,

     -"[v]oice analysis rests on the unlikeliness that any two individuals could have the same voice pattern, vocal cavities or articulators.  [This analysis is done with a spectograph.]  Briefly, a sound spectrograph is a device which converts sound waves into electrical signals. These signals are transduced into mechanical energy which operates a stylus. The stylus ‘burns' a visual pattern onto a paper. This pattern is known as a sound spectrogram.  This spectrogram is commonly called a ‘voiceprint’.  The visual pattern displayed on the spectrogram is an analogue of the frequency, intensity, and duration of the sound waves introduced into the spectrograph.  Spectrographic voice analysis consists of using these visual arrays to compare two exemplars of voices to see whether or not the same person spoke on each exemplar."

In Bein, the court found that the results of a spectograph voice analysis were reliable and admissible into evidence.  In 1992, the Court of Appeals of New York (the equivalent of most states' supreme courts), reviewed a trial court's decision to admit voice spectrographic evidence without a preliminary inquiry into its validity in People v. Jeter, 600 N.E.2d 214 (N.Y. 1992).  The Court reviewed New York precedent and found that "New York courts are split on the issue of admissibility." Id. at 216.  The Court of Appeals then neither approved or disapproved of either line of precedent, but it did find that the trial court erred in admitting the voice spectrographic evidence without a preliminary inquiry into its validity.  Thus, unless I am missing a subsequent Court of Appeals case or statute precluding the admissibility of digital voice analyses (or if the specific type of voice analysis used by Winscher is inadmissible), the article's sweeping statement was unwarranted.

-CM    

June 5, 2008 | Permalink | Comments (3) | TrackBack (0)

Wednesday, June 4, 2008

Age Ain't Nothing But A Number, Take 4: Impeachment of Prosecution Witness Through Prior Consistent Statements Allowed In R. Kelly Trial

The R. Kelly child pornography case continues to be the source of numerous interesting evidentiary rulings.  The latest relates to the testimony of the final prosecution witness:  Lisa Van Allen.  Like 14 previous prosecution witnesses, Van Allen identified Kelly and his then-minor goddaughter as the participants in the 27 minute-video.  She further testified that the Grammy Award winner made a similar sex tape with herself and the alleged victim in late 1998. Van Allen testified that this video, which she said was filmed in the same location as the one at the center of the trial, could not be entered into evidence because she sold it to the singer's business manager for $20,000 last year.

This testimony, of course, is extremely damaging to R. Kelly's defense, but shortly before Van Allen's testimony, Kelly's team was able to get a favorable ruling from Judge Vincent Gaughan, which will allow them to impeach Van Allen's testimony through a surprise witness:  Van Allen's ex-beau Damon Pryor.  According to defense counsel, Pryor will testify that Van Allen told him that the video at the center of the case is a fake created by two gentlemen from Kansas City named Chuck and Keith as a scheme to extort money from Kelly.  The prosecution objected that testimony concerning Van Allen's alleged statements would constitute hearsay, but Judge Gaughan overruled the objection.  Why?

Well, Van Allen testified that she never told Pryor that the video was a fake and denied knowing that two men called "Chuck and Keith" had staged the tape at the center of the case to get money from Kelly.  Thus, her alleged prior statements to Pryor are admissible as prior inconsistent statements. See, e.g., People v. Newbill, 873 N.E.2d 408, 416 (Ill.App. 4 Dist. 2007).  Now, what's important to note is that Van Allen's alleged prior statements to Pryor are only admissible to impeach her testimony, i.e., to show that the jury that it has reason to doubt her veracity; they are not admissible to prove that the video is in fact a fake or that it was made by "Chuck and Keith" as part of an extortion scheme.  Under Illinois Law (Section 115-10.1 of the Illinois Code of Criminal Procedure), the only way that Van Allen's alleged prior statements to Pryor would have been admissible as prior inconsistent statements to prove the truth of the matter asserted in those statements would have been if Van Allen made those prior statements "under oath at a trial, hearing, or other proceeding."

So, Pryor's testimony will not be as damaging to the prosecution's case as it might have appeared.  Also militating against potential damage to the prosecutin's case is that fact that defense lawyer Sam Adams Jr. has already stipulated that Pryor is a "con man."

-CM

June 4, 2008 | Permalink | Comments (0) | TrackBack (1)

Tuesday, June 3, 2008

Diminishing Returns?: Double Homicide Case Reveals That Tennessee Does Not Have A Diminished Capacity Defense

The last minute plea deal accepted by Antonio Diaz reveals that Tennessee does not allow the defense of "diminished capacity" and does not allow expert testimony on "capacity" unless a two factor test is satisfied.  The facts of Diaz's case can be found in State v. Idellfonso-Diaz, 2006 WL 3093207 (Tenn.Crim. App. 2006).  Briefly put, in January 2004, the then seventeen-year-old Diaz was a passenger in a pickup truck being driven by Eliseo Quintero, when the two men mistakenly thought that the truck struck Tracy Owen, who had been walking or standing on the side of the road.  Diaz subsequently shot Owen, who was pregnant, several times, causing her death.  The State charged Diaz with the first degree premeditated murder of Owen and the first degree premeditated and felony murders of her unborn child.

Diaz filed written notice of his intent to call a psychiatric expert to testify at trial, and the State filed a motion in limine.  In a hearing on the State's motion, Dr. William Bernet testified that he was a full-time faculty member in the Department of Psychiatry at Vanderbilt University School of Medicine and conducted a pretrial psychiatric evaluation of Diaz.  Dr. Bernet testified, inter alia, that Diaz suffered from post-traumatic stress disorder and dysthymic disorder.  Dr. Bernet, however, also testified, that “I cannot say that [Diaz] totally lacked the capacity [to premeditate]. I am saying, simply, that his capacity was impaired to some extent."  Furthermore, he later acknowledged that he was not concluding that Diaz did not premeditate the crimes but was concluding that all of the factors he had discussed "contribute[d] to this reduced ability to premeditate."

At the close of Dr. Bernet's testimony, the State argued that the jury should not be able to hear his testimony, but the trial court disagreed, leading to the State appealing to the Tennessee Court of Criminal Appeals.  That court noted that under Tennessee precedent:

     -"[D]iminished capacity is not considered a justification or excuse for a crime, but rather an attempt to prove that the defendant, incapable of the requisite intent of the crime charged, is innocent of that crime but most likely guilty of a lesser included offense. Thus, a defendant claiming diminished capacity contemplates full responsibility, but only for the crime actually committed. In other words, 'diminished capacity' is actually a defendant's presentation of expert, psychiatric evidence aimed at negating the requisite culpable mental state...However, 'such evidence should not be proffered as proof of ‘diminished capacity.’ Instead, such evidence should be presented to the trial court as relevant to negate the existence of the culpable mental state required to establish the criminal offense for which the defendant is being tried.'"

In other words, Tennessee allows a "lack of capacity" defense, but it does not allow a "diminished capacity" defense.  Accordingly, experts in Tennessee courts may only render "capacity" testimony when that testimony shows (1) that the defendant “lacked the capacity” to form the culpable mental state and (2) that he lacked the capacity due to a mental disease or defect."  The Tennessee Court of Criminal Appeals noted that Dr. Bernet repeatedly stated that he could not say that Diaz lacked the capacity to form the culpable mental states, and thus found his testimony irrelevant and inadmissible.  The eventual result of this ruling was Diaz deciding to avoid trial and accept a plea deal under which he pleaded guilty to two counts of second degree murder and received two 40-year concurrent sentences.

So, what do readers think?  Should states have "diminished capacity" defenses?  It's a question that hasn't received much ink recently, but that might all change with the impending release of Gus Van Sant's movie, "Milk," about Harvey Milk.  Those familiar with the Milk assassination may recall that defendant Dan White's defense was diminished capacity (the infamous "twinkie defense"), and that he was found guilty of voluntary manslaughter rather than murder, which led to public outrage and California repealing the diminished capacity defense.

-CM

June 3, 2008 | Permalink | Comments (1) | TrackBack (0)

Monday, June 2, 2008

Imbalanced Opinion: Eleventh Circuit Approves Of Rule 609(a)(1) Impeachment Without Mention of Balancing Test

The Eleventh Circuit's recent opinion in United States v. Pedron, 2008 WL 2222038 (11th Cir. 2008), is the latest example of a court engaging in an improperly curt consideration of whether a trial court properly allowed for the prosecution to impeach a criminal defendant through a felony conviction under Federal Rule of Evidence 609(a)(1).  In Pedron, Jose Pedron appealed from his convictions and 175-month sentence for possession with intent to distribute cocaine, possession with intent to distribute amphetamines on July 14, 2006, possession with intent to distribute amphetamines on July 17, 2006, and possession of cocaine.  On appeal, Pedrom claimed, inter alia, that the district court abused its discretion by allowing the prosecution to impeach him with a prior conviction for conspiracy to distribute controlled substances

The Eleventh Circuit then noted that under Federal Rule of Evidence 609(a)(1), for purposes of attacking a testifying criminal defendant's character for truthfulness, a prior conviction "shall be admitted if the court determines that the probative value ... outweighs its prejudicial effect to the accused...."  Without any further explication, the Eleventh Circuit concluded:  "At trial, Pedron put his credibility at issue by testifying, and the district court limited the government to one question about the conviction and later admonished the jury that a prior conviction could not be considered in determining Pedron's guilt in this case. In so doing, the district court did not abuse its discretion in admitting Pedron's prior conviction."

My response is that the court left out the most important part of the analysis:  the balancing of probative value and prejudicial effect.  The Eleventh Circuit's opinion contains no indication that the district court found that the probative value of Pedron's prior conviction outweighed its prejudicial effect (and, of course, no indication that the Eleventh Circuit reviewed the district court's balancing).  Furthermore, without knowing more about the prior conviction based upon the Eleventh Circuit's curt conclusion, I would guess that the impeachment was improper  Why?

Well, according to the Advisory Committee's Note to the 1990 amendment to Rule 609, "the rule recognizes that, in virtually every case in which prior convictions are used to impeach the testifying defendant, the defendant faces a unique risk of prejudice--i.e., the danger that convictions that would be excluded under Fed. R. Evid. 404 will be misused by a jury as propensity evidence despite their introduction solely for impeachment purposes."  This danger is at its highest when, as in Pedron's case, the criminal defendant's prior convictions are similar to the charged crime(s).  How do I know this?

Well, courts in several cases apply a five factor test before deciding whether a criminal defendant can be impeached by a prior felony conviction.  These factors are:

     -1. The impeachment value of the prior crime;

     -2. The point in time of the conviction and the witness' subsequent history;

     -3. The similarity between the past crime and the charged crime;

     -4. The importance of the defendant's testimony;

     -5. The centrality of the credibility issue.

Under factor 3, the more similar the past crime and the charged crime(s), the more prejudicial the proposed impeachment because of the fear that jurors will use the conviction not as impeachment evidence but as propensity evidence.  So, why didn't the Eleventh Circuit apply the five factor test?  Well, like the eternal question of how many licks it takes to get to the center of a Tootsie Roll Pop, the world may never know.  In some cases, the Eleventh Circuit has applied the five factor test.  See, e.g., United States v. Pritchard, 973 F.2d 905, 909 (11th Cir. 1992).  In other cases, like the Pedron case, it hasn't applied it.  I don't see any justification for not applying the five factor test or at least weighing probative value and prejudicial effect in some manner, and, in cases like the Pedron case, the likely result is felony convictions being admitted against criminal defendants despite their high prejudicial effect.

-CM 

June 2, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 1, 2008

Seattle's Best?: Seattle Judges Rule That Breath Test Results Will Be Inadmissible Until Accuracy Problems Are Fixed

Last week, I wrote about the ruling by a Tucson judge questioning the reliability of the alcohol breath test used in Arizona since December 1, 2006 and thus jeopardizing countless DUI prosecutions.  Well, that's nothing compared to the problems that Seattle has had with alcohol breath tests for over a half decade.  Specifically, "in a ruling that could affect hundreds of Seattle cases, a panel of Seattle Municipal Court judges said [last] Monday that the results of breath tests would not be admissible in court until reputed problems with the machines' accuracy are fixed." 

These problems were first reported last year when former lab manager Ann Marie Gordon was accused of signing sworn statements that she had personally checked that breath-test machines were working properly, when other toxicologists had in fact conducted the checks.  Worse, an audit of Gordon's toxicology lab by the American Society of Crime Lab Directors last fall uncovered numerous problems, and earlier this year a panel of King County District Court judges blasted the lab, saying leaders had created a "culture of compromise" with so many "ethical lapses, systemic inaccuracy, negligence and violations of scientific principles" that the breath tests should not be used as evidence in pending cases of driving under the influence.  These judges noted at least 150 errors at the lab, including machine-calibration errors, the recording of incorrect data, and a failure to test an ethanol-water solution used to ensure correct readings by the breath-test machine.

Last Monday, the panel of Seattle Municipal Court judges added unchecked software problems to the list of grievances with the breath tests.  Apparently, these Seattle Municipal Court judges are not alone as their ruling is similar to several others in Washington state.  Meanwhile, Seattle City Attorney Tom Carr noted that the ruling was nothing new as "the issue has been ongoing since 2002...when the local courts first banned breath-test evidence."

Unaware of this history, I decided to look into the case law and found the issue addressed in State v. MacKenzie, 60 P.3d 607 (Wash.App. Div. 1 2002), where the Court of Appeals of Washington found that the state toxicologist was justified in promulgating temporary emergency regulations when no quality assurance procedures were performed to ensure the reliability of breath test equipment after the legal breath alcohol concentration limit in Washington was lowered from .10 to .08.  What this means is that there are serious questions about the reliability of breath test evidence, at the very least in Washington, Arizona, and New Jersey.  When we add to this the questions about the reliability and admissibility of HGN test results, we see that things are very uncertain in DUI cases.

-CM

June 1, 2008 | Permalink | Comments (0) | TrackBack (0)