EvidenceProf Blog

Your Honor, We Call Your Honor To The Stand: Proseuctors Ask Judge To Recuse Himself In Baby Killing Case

The 1987 courtroom thriller "Suspect," starring Cher and Dennis Quaid is by no means a very good movie, despite the esteemable talents of director Peter Yates and screenwriter Eric Roth.  Nonetheless, it has one of the classic lines in any courtroom movie, with defense counsel at the climax of the movie saying to the judge, "Your honor, we call your Honor to the stand."  Well, in Ohio, Mahoning County prosecutors have asked the judge presiding over the case of an accused baby killer to recuse himself to avoid such a scenario. 

That case is the case of Terrance Tate, who is charged with aggravated murder with a death-penalty specification in connection with the fatal beating of Javonte Covington on his first birthday in April 2006.  The current issue in Tate's case is whether his admission to the subject crime will be admissible at his trial.  At the suppression hearing on the issue, Tate testified that police behaved aggressively toward him, yelled at him, and called him a liar in 45 minutes to an hour of questioning before warning him of his right to remain silent.  Judge John M. Durkin apparently credited Tate's testimony and excluded the confession, and the 7th District Court of Appeals affirmed, finding that police failed to warn Tate of his right to remain silent before questioning him about the victim's injuries while he was in police custody.

Prosecutors have appealed this ruling to the Supreme Court of Ohio, and they are armed with two new pieces of evidence:  letters that Tate wrote to Judge Durkin while in county jail in May 2006 and August 2007.  So, why didn't the prosecution have these letters earlier?  Assistant county prosecutor Martin P. Desmond has claimed that while the letters were faxed to defense lawyers, John B. Juhasz and Lynn Maro, they were not faxed to the prosecution.  So, what was in the letters?  While it's unclear what the letter from 2007 letter stated, in the May 2006 letter, Tate told the judge he gave a false confession to police to keep the baby’s mother, April Ford, from going to jail.  The prosecution now claims that it could have used the May 2006 letter to cross-examine Tate when he testified at Judge Durkin’s suppression hearing concerning the methods police used to obtain the confession.

And the prosecution ostensibly plans to use the letter(s) at a new suppression hearing, which, if it has its way, will not be before Judge Durkin.  That's because, as noted, the prosecution wants Judge Durkin to recuse himself because as the recipient (and alleged withholder) of Tate's letters, Durkin could himself be called as a witness.  Now, I don't have all the facts of the case, but I will address why Judge Durkin should indeed recuse himself if he thinks that it's likely that he will be a (material) witness in the case.

The reason that Judge Durkin should recuse himself in this scenario is because Canon 3 of the Ohio Code of Judicial Conduct states at (E)(1)(d)(v) that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where...[t]he judge...is to the judge's knowledge likely to be a material witness in the proceeding."  Moreover, pursuant to Ohio Rule of Evidence 605, "[t]he judge presiding at the trial may not testify in that trial as a witness.

-CM

Til Disclosure Do Us Part, Take 2: B.C. Supreme Court Finds Spousal Testimonial Privilege Precluded Admission of Wife's Statements To Police

A recent opinion of the B.C. Supreme Court reveals that our neighbors to the north still have the spousal testimonial privilege, at least in criminal cases.  In 2003, David Couture was found guilty of two counts of second degree murder in connection with the 1986 slayings of his then girlfriend and her friend.  Couture's conviction hinged largely upon audiotaped and videotaped statements made by his wife, Darlene, to police in 2003 in which she claimed that he admitted to the murders (at the time David allegedly made these statements, Darlene was David's Christian volunteer counsellor in prison, where he was serving time on unrelated offences).  When Darlene spoke to the police, David and she were recently separated but still married, and they later reconciled and remained married at the time of his trial.

After David was convicted, he appealed to the B.C. Court of Appeal, claiming that the trial court improperly admitted his wife's audiotaped and videotaped statements.  The Court of Appeal agreed, ruled the statements inadmissible, set aside the convictions, and ordered a new trial.  The Crown then appealed from this order, but the B.C. Supreme Court affirmed.  Why?

The B.C. Supreme Court noted that "[a]t common law, in civil cases, the parties and their spouses were incompetent to testify.  The same rule applied in criminal cases to accused persons and their spouses, save in cases that involved the witness spouse’s person, liberty or health."  The Court then noted that while the rule was abolished in civil cases, in criminal cases, it was codified in Section 4 of the Canada Evidence Act, which implicitly preserved the common law, subject to exceptions that were inapplicable in Couture's case.

Technically, speaking, however, Darlene did not testify; instead, her statements to police were admitted.  So, why did the Court find her statements admissible when it acknowledged that "[t]here is no question that the spousal incompetency rule is testimonial in nature."  Well, it found that "[u]nless there is good reason to modify an established common law rule, the modern approach to hearsay should be applied in a manner which preserves and reinforces the integrity of the traditional rules of evidence."  And the Court found no such good reason, rejecting the Crown's argument that Darlene's statements were admissible under Canada's principled exception to the hearsay rule because the circumstances in which they were given rendered them reliable.  The Court rejected this argument "[b]ecause exclusion of evidence under the spousal incompetency rule has nothing to do with the reliability or probative value of the evidence."

The Court did acknowledge that in a previous case -- Hawkins -- it had admitted out-of-court statements made by a spouse under the principled exception, but it agreed with the Court of Appeals that Hawkins was very much limited to its facts because in that case:

     (1) the hearsay admitted was a transcript of evidence given under oath (Darlene's statements were not given under oath);

     (2) the witness had been cross-examined; and

     (3) the marriage took place after the evidence was given.

The Court thus rejected the Crown's argument and concluded that "Hawkins was based on its own particular fact situation and did not create a broad exception that would admit all out-of-court statements made by spouses on the basis of threshold reliability alone."  I agree with the opinion of the B.C. Supreme Court and disagree with the contrary conclusion of Michigan Court of Appeals, which recently strictly construed Michigan's confidential marital communications privilege (which is somehwat similar to the spousal testimonial privilege) and found that a spouse's statements are admissible through other witnesses as long as they meet an applicable hearsay exception (Here is my post on the Michigan opinion).

-CM

Wall Of Silence, Take 3: Judge Doesn't Yet Rule On Character Testimony In Spector Retrial

I've written twice (here and here) about the retrial of Phil Spector and his attorneys' attempt to preclude the prosecution from presenting the testimony of five women who testified at Spector's initial trial that he had a proclivity for threatening women with guns (as well as the proposed testimony of a sixth woman to the same effect).  Today, the judge heard several defense pre-trial motions, including a motion on this issue, but he did not rule on the issue of whether these women could render this character testimony against Spector.  As I previously noted, however, the issue seems clear, with the judge seemingly having no option but to exclude the testimony.

-CM

The Last 48?: District Attorney General Sends Letter To Memphis Police Department Asking That It Not Renew Its Contract With A&E's "The First 48"

The A&E show "The First 48" summarizes its premise in its title voiceover: "For homicide detectives, the clock starts ticking the moment they are called. Their chance of solving a case is cut in half if they don't get a lead in the first 48 [Hours]."  Each episode tracks a homicide or homicides, showing how detectives use forensic evidence, witness interviews, and other advanced detective skills to identify suspects. The way that the show is able to do this is that it was given unprecedented access by several police departments to crime scenes, interrogations, detectives' opinions and and other details that typically are revealed in a courtroom.  The show has followed police departments in many cities, ranging from Miami to Phoenix and has now sparked its first controversy in Memphis, with some claiming that the courtroom is where this information should remain.

Recently, the show did an episode on Jessie Dotson, which was punctuated by his tearful confession to shooting four adults and beating and stabbing five children.  There were, however, problems with this confession.  First, the confession, which was recorded and edited by A&E hasn't yet been ruled admissible in Dotson's pending trial, meaning that the jury pool could easily be tainted by it if it is later ruled inadmissible at trial.  And inadmissibility (and extreme prejudice) seems a real possibility based upon the fact that the video was allegedly edited and taken out of sequence, with A&E destroying whatever video they don't use.

This, however, was not the problem which led District Attorney General Bill Gibbons to send a letter to Memphis Police Director Larry Godwin asking that he not renew the department's contract with the show.  Instead, the letter was the result of the Rules of Professional Conduct promulgated by the Supreme Court of Tennessee.  Pursuant to Rule 3.6(a), "[a] lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding."

Prosecutors, however, not only have to keep their own mouths shut, but also must ensure that mum's the word for everyone around them.  Specifically, Rule 3.8(e)(2), states that the prosecutor in a criminal matter shall "discourage investigators, law enforcement personnel, and other persons assisting or associated with the prosecutor in a criminal matter from making an extrajudicial statement that the prosecutor would be prohibited from making under RPC 3.6."  Ostensibly, this Rule is violated by the Memphis Police Department's cooperation with "The First 48," so how are things likely to end?

Well, it initially appeared that they might end amicably, after Godwin decided in May not to renew the contract with "The First 48" because of how disruptive the taping is to the department.  However, he said recently that he is reconsidering the decision because the show casts detectives in a favorable light.  It seems to me, though, that the show violates the Rules promulgated by the Supreme Court of Tennessee and thus shines a negative light on the Memphis Police Department.  Hopefully, then, the Memphis Police Department and other police departments will discontinue their affiliation with the show or at least, as suggested by Gibbons, reach an agreement that "The First 48" will not air its episodes until after cases have been disposed. 

-CM

Sexual Assault By Any Other Name: Wisconsin Court Finds Trial Court Properly Excluded Prior False Sexual Abuse Allegations In Sexual Assault Trial

I'm skeptical of the recent opinion of the Court of Appeals of Wisconsin in State v. Sussman, 2008 WL 2833111 (Wis.App. IV Dist. 2008).  In Sussman, Gordon Sussman appealed a trial court judgment convicting him of two counts of repeated sexual assault of the same child and sixteen counts of possession of child pornography.  One of Sussman's claims on appeal was that he received the ineffective assistance of counsel because his trial attorney failed to file a pre-trial motion under Wis.Stat. Section 971.31(11).  In relevant part, Section 971.31(11) states that "evidence which is admissible under s. 972(11)(2) must be determined by the court upon pretrial motion to be material to a fact at issue in the case and of sufficient probative value to outweigh its inflammatory and prejudicial nature before it may be introduced at trial."

Wis.Stat. 971(11)(2) is Wisconsin's rape shield statute, which generally proscribes the admission of evidence of the alleged victim's prior sexual conduct in a rape or sexual assault case.  Wis.Stat. Section 97(11)(2)(b)3, however, allows for the admission of "[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness," and this was the type of evidence that Sussman sought to introduce at trial:  testimony that the victim had falsely accused his father of sexual abuse in the past.  However, because his trial attorney failed to comply with the procedural requirements of Section 971.31(11), this testimony was inadmissible, prompting Sussman's appeal.

The Court of Appeals of Wisconsin thus had to determine whether the testimony that Sussman sought to admit would have been admissible under Wis.Stat. Section 97(11)(2)(b)3 if Sussman's trial attorney had complied with Section 971.31(11).  In making this determination, the court relied upon the previous opinion of the Supreme Court of Wisconsin in State v. DeSantis, 456 N.W.2d 600 (Wis. 1990), which said that courts faced with proposed "false accusation" evidence must find three elements:

     (1) that there is a sufficient factual basis for allowing the jury to hear the evidence that the complainant has made prior allegations of sexual assault that are untruthful;

     (2) that the evidence is material to a fact in issue; and

     (3) that the evidence of an untruthful allegation is of sufficient probative value to outweigh its inflammatory and prejudicial nature.

The Court of Appeals of Wisconsin then deferred to the trial court's determinations that the first and third elements did not exist.  With regard to the first element, it affirmed the trial court's ruling that:

     "Admissible evidence under Wis.Stat. Section 97(11)(2)(b)3 is specifically limited to '[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness.' This language indicates that the purported allegations must bear at least some resemblance to a relevant definition of sexual assault and not merely be allegations with some sexual aspect. The language of the statute is particularly relevant in this case where defendant has provided material which could support a finding that the complaining witness alleged that his father made contact with his intimate parts. There has, however, been no material submitted which would support a finding that the complaining witness claimed his father had touched him for the purpose of sexual gratification or sexual degradation. There is no indication that the complaining witness alleged that the father was aroused by the contact, that the complaining witness was intentionally humiliated by the contact or that the complaining witness depicted the contact as assaultive. To infer that the complaining witness' allegations were allegations of sexual assault in this instance would, in the Court's opinion, either be entirely speculative and/or render a significant portion [of] the language of [the statute] surplusage." (emphasis added).

And my response to the Court of Appeals of Wisconsin is, "You cannot be serious!"  The "relevant definition of sexual assault" is found in Wis.Stat. Section 940.225, which requires "sexual contact," which it in turn defines as, inter alia, "intentional touching, whether direct of through clothing, if that intentional touching is either for the purposes of sexually degrading; or for the purpose of sexually humiliating the complaining or sexually arousing or gratifying the defendant or if the touching contains the elements of actual or attempted battery."

Unfortunately, the court did not provide the facts of the alleged victim's prior false allegations, but assuming that the son claimed that his father intentionally made contact with his intimate parts, how is it speculative to conclude that the son's allegation was that the purpose of the contact was to sexually humiliate him and/or to sexually arouse/gratify the father?  What other purpose would lead to allegations of sexual abuse?  I can't think of any, and, even if I could, I would imagine that those allegations would still have borne the required resemblance to the definition of sexual assault to allow for application of Wis.Stat. Section 97(11)(2)(b)3.

Furthermore, with regard to the third element, the appellate court affirmed the trial courts; ruling that:

     "the purported evidence would not have been admitted because its probative value is significantly, indeed grossly, outweighed by its prejudicial effect. The alleged false accusation by the complaining witness against his father was of a rather ambiguous nature, was temporally remote from the allegations against the defendant, especially considering the youth of the complaining witness, and contained vastly different surrounding circumstances. Thus, the probative value of the evidence would have been quite low. The potential for improper use and confusion by the jury, however, would have been unacceptably high. Extensive testimony regarding this alleged report of sexual abuse would likely have focused undue attention on the complaining witness' behavior in a situation quite unlike the one actually being tried."

Again, without the facts of the alleged victim's prior false allegations, it's difficult to determine the exact probative value of the evidence.  That said, the false allegations clearly had some probative value.  On the other hand, where is the unfair prejudice?  The unfair prejudice usually connected with prior false sexual assault allegations is that jurors will misuse them to draw the conclusion that the alleged victim likely consented to the earlier sexual act and thus likely consented to the act at issue.

In Sussman, however, as in the Ninth Circuit's opinion in LaJoie v. Thompson, 217 F.3d 663 (9th Cir. 2000), which also dealt with an alleged child victim, this fear of unfair prejudice was non-existent.  Why?  Well, as the court found in Thompson,

     "Admitting the excluded evidence in this case, however, would not create undue prejudice. The evidence is distinguishable from evidence of an adult or sexually-mature minor's sexual history which could be improperly used by the jury in deciding whether she was raped. Rather, the evidence in this case concerned non-consensual sexual abuse of a young child; thus, the jury was unlikely to draw an unfavorable and unwarranted impression of the alleged victim."

In other words, there was no fear that the jury in Sussman would have used the prior false allegation to conclude that the alleged victim consented to the sexual contact with his father.  Therefore, I don't see how the court could have found that the evidence was too prejudicial to be admissible.

-CM

Is Justice (Color)Blind?: Court Of Appeals of Michigan Becomes Latest Court To Finds That Evidence Of Racial Prejudice Can't Support Jury Impeachment

The Court of Appeals of Michigan is the latest court to find that evidence of racial prejudice during deliberations is not a sufficient ground to permit post-trial jury impeachment.  It's a conclusion with which I strongly disagree, and I plan to write my article arguing for application of the doctrine from Chambers v. Mississippi, 410 U.S. 284 (1973) to this fact pattern this fall (research so far is going very well).  So, what was the exact fact pattern prompting the recent opinion of the Court of Appeals of Michigan in People v. Brooks, 2008 WL 2855040 (Mich.App. 2008)?   

Keith Brooks was convicted based upon the allegation that he sexually abused the victim, his niece, in 2004, when she was 15 years old.  Specifically, he was convicted of first-degree criminal sexual conduct (digital penetration), but acquitted of a second count of first-degree criminal sexual conduct (penile penetration).

One of the bases for Brooks' appeal was an affidavit from the jury foreman -- Brooks Maudlin.  The affidavit claimed that some of the jurors had discussed the case during the trial.  It also asserted  that Juror # 1 had twice suggested that Maudlin's position that Brooks was not guilty was a "brotherhood thing" -- (both Brooks and Maudlin are African-American).  According to Maudlin, Juror # 1 said this once in front of Juror # 14, who "immediately introduced race into the discussion." Maudlin "felt that [Juror # 14] was attacking me personally based upon the fact that both Mr. Brooks and I are Black and I was arguing on his behalf."  Maudlin claimed that once he was the last juror voting "not guilty," several jurors personally attacked him and other jurors complained that they needed to get back to work." Maudlin stated that he changed his vote to "guilty" because he felt he "could not stay in that room much longer without exploding," and later realized that he had done so because of the pressure from other jurors, not because he believed that Brooks was guilty.

Now, the interesting thing is that Michigan actually doesn't have a rule of evidence covering the admissibility of the affidavit.  Michigan Rule of Evidence 606 merely covers juror testimony during trial, stating that "[a] member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.  No objection need be made in order to preserve the point."  In other words Michigan Rule of Evidence 606 is very similar to Federal Rule of Evidence 606(a), which also proscribes juror testimony during trial.  Michigan, however, does not have a rule of evidence dealing with juror testimony after trial.  Conversely, Federal Rule of Evidence 606(b) precludes jurors from impeaching verdicts except through testimony about "(1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."

However, while Michigan doesn't have a rules-based counterpart to Federal Rule of Evidence 606(b), it has incorporated a similar "rule" in its case law, with the Court of Appeals of Michigan finding in People v. Fletcher, 679 N.W.2d 127 (Mich.App. 2004) that "[o]nly where there is evidence that the jury's verdict was affected by influences external to the trial proceedings may a court considered juror testimony to impeach a verdict."  So, what did this mean in Brooks?  Well, according to the court, it meant that "[a]lthough it was improper for the jurors to discuss the case before the trial court instructed it to so and to allow their need to return to work to motivate their deliberations, these are the sorts of 'internal influences' [deemed inadmissible] by the case law." 

And how about the evidence of racial prejudice?  According to the court, no evidence could be received on this point, either.  According to the court, "The allegation that race entered into the jury's discussions, and the attendant implication that racial bias motivated the verdict, while much more disturbing, is still not an 'extraneous influence.'"  And that's the same finding that most courts currently reach when a defendant seeks to have a juror testify or present evidence that a verdict was tainted by racial/religious/gender prejudice.  These courts slavishly adhere to their rules and precedent in holding that juror impeachment should not be allowed in lieu of crafting an approach that would avoid what they acknowledge to be "disturbing" results. 

So, why do I think their conclusions are wrong?  Well, in Chambers v. Mississippi, the Supreme Court held that "exclusion of reliable evidence under state evidentiary rules may, under certain circumstances, deprive a criminal defendant of the fourteenth amendment right to present evidence critical to his defense." Mark Andrew Stafford, A. State v. Barts, North Carolina Relaxes Foundation Requirements for Mitigating Evidence in Capital Sentencing Hearings, 66 N.C. L. Rev. 1221, 1224 (1988). 

And the thing is that in most of these cases, there is nothing specific about the evidence excluded that brings the Fourteenth Amendment to mind.  For instance, in Chambers v. Mississippi, the Court found that Mississippi erred in applying its "voucher rule" to prevent defense counsel from impeaching a witness he had called.  Now, because the impeachment evidence consisted of statements indicating that the witness and not the defendant committed the subject murder, it is easy to see why the Court ruled in favor of the defendant.  But there was nothing about Mississippi's application of its voucher rule that screamed for application of the Fourteenth Amendment.

Conversely, a case like Brooks falls right in the Fourteenth Amendment's wheelhouse.  A criminal defendant claims that he was convicted based not upon the evidence, but based upon racial bias.  Such an allegation clearly implicates the due process clause and the Sixth Amendment requirement of a trial by an impartial jury, making it, in my mind, the perfect candidate for the Chambers v. Mississippi treatment.

-CM   

Theatre Of The Absurd?: Prosecutors Will Seek To Admit Former Testimony In Retrial After Bizarre Re-Enactment Led To Reversal

The impending murder retrial of Kenneth E. Smith in Illinois has a strange past and what looks to be an interesting future.  Smith, Justin Houghtaling, and Jennifer McMullan were charged with the 2001 slaying of Lakemoor businessman Raul Briseno.  Houghtaling quickly cut a deal with county prosecutors in which he received the minimum 20-year sentence in exchange for his testimony against Smith and McMullan.  While Houghtaling kept his word and testified against McMullan, he clammed up when it came time to take the witness stand against Smith.  This resulted in a theatre of the absurd unprecedented (as far as I am aware) in American legal history:  prosecutors re-enacted Houghtaling's testimony from the McMullan trial, with an assistant McHenry County state's attorney playing the role of Houghtaling for Smith's jury.  The gambit worked, and Smith was convicted, but an appellate court reversed, apparently finding that while all the world's a stage, lawyers shouldn't be players.

This sets the stage for Smith's impending retrial, and it again appears that Houghtaling will refuse to testify despite the threat of a contempt finding hanging over his head.  In a motion scheduled to be heard later this month, the McHenry County state's attorney's office is asking for the judge's permission to question Houghtaling as a hostile witness if he refuses to answer questions.  If the motion is granted, prosecutors believe they can bring in Houghtaling's earlier testimony either through a hearsay exception or as a prior inconsistent statement.  It's likely that Smith's defense, which would rather not hear from Houghtaling at all, will ask the judge to deny the request.

This, of course, begs the question of whether the prosecution could indeed bring in Houghtaling's  testimony from the McMullan trial should he refuse to testify.  Let's look first at the former testimony exception to the hearsay rule.  Illinois recognizes an exception to the hearsay rule for former testimony, provided that the witness is unavailable and that "the matter in issue and the parties are essentially the same in both causes." Kendor v. Department of Correction, 467 N.E.2d 1107, 1110 (Ill.App. 1 Dist. 1984).  Should Houghtaling refuse to testify, he would meet the unavailability requirement.  People v. Ramey, 604 N.E.2d 275, 289 (Ill. 1992).  The problem, though, is that the parties are not "essentially the same" in both trials.  Smith was not a party to the McMullan trial, and thus, using the words of the federal former testimony exception, he neither had an opportunity nor a similar motive to develop  Houghtaling's testimony at that trial.

Let's look next at prior inconsistent statement, which courts deem admissible to contradict a witness' trial testimony.  Illinois courts have consistently held that when a witness refuses to testify, there is no present testimony, meaning that the witness cannot be impeached through a prior inconsistent statement. See People v. Redd, 553 N.E.2d 316 (Ill. 1990); 725 ILCS 5/115-10.1.

So, does that mean that the prosecution is out of luck?  That's the way it looks to me, unless the court finds that Houghtaling's prior testimony is admissible under 725 ILCS 5/115-10.2, Illinois' residual hearsay statute, but I don't have enough facts yet to be able to determine whether this rarely applicable statute would apply.

-CM

And No Religion Too, Take 2: North Carolina Court Finds Trial Court Didn't Err In Admitting Religious Evidence

I previously posted two entries (here and here) that were very critical of the admission of religious evidence in trials.  As I noted in the second of those posts, "any evidence concerning an individual's religious beliefs or lack thereof is highly prejudicial and should only be admissible if it has a direct bearing on a case."  Well, I think that I found such a case.

In State v. Rankin, 2008 WL 2726637 (N.C. App. 2008), John Fitzgerald Rankin appealed from his convictions for first degree murder and robbery with a dangerous weapon.  At trial, the prosecution had presented evidence establishing the following:

     Hawkins spent the weekend of August 13th, 2004 with his cousin, "Junior," and his son, Cedric Hawkins. On August 16th, Hawkins and Rankin told Junior that they were going to "make a lick," which Hawkins explained at trial meant commit a robbery. At 3:15 p.m. on that same day, Kevin Ritchie was found stabbed to death in his home, with approximately twenty to thirty firearms later determined to be missing from his home.  Ritchie and Rankin went to school together and had been in close communication prior to Ritchie's death.  Within a week of Ritchie's death, two of his rifles were pawned by Junior and his friend Timothy Allison, with a third rifle later found in the trunk of Allison's car. Upon questioning by the police, Junior alleged that he received the weapons from Rankin shortly after the Ritchie's death.

One argument that Rankin made on appeal was that the trial court erred by allowing the prosecution to present evidence identifying another witness and him as Muslim.  This evidence consisted of recordings of certain phone calls made by Rankin to Chantay Brown, a woman with whom he had been involved in the past.  While Brown's initial testimony provided Rankin with an alibi for the time of the murder, she later retracted that statement and testified that Rankin asked her via calls and letters to provide him with an alibi for the time of the crime.  Specifically, Brown testified that, per her religious beliefs, when Rankin asked her to provide an alibi for him, she felt obligated to do so, which is why she initially testified that he had been with her at the time of the murder.  More specifically, when the prosecutor asked Brown during voir dire whether her religious beliefs and the fact that Rankin was of the same faith affected the way she reacted to Rankin's request, she testified: "You're supposed to help them, assist them, if you can. You're supposed to help him. That's why I did agree to help him."

On appeal, Rankin claimed that the admission of this religious evidence "unfairly prejudiced the jury against him, as the jury could well have anti-Muslim beliefs, and that any probative value of the evidence was outweighed by its prejudicial effect.  As I did in my previous posts, I will start by noting that the evidence at issue was not excluded by North Carolina Rule of Evidence 610, which states that "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature his credibility is impaired or enhanced; provided, however, such evidence may be admitted for the purpose of showing interest or bias."  This Rule did not make the evidence inadmissible because the prosecution was not using evidence of the shared faith of Brown and Rankin to argue that Muslims are liars and that their testimony thus can't be trusted. 

Instead, the prosecution used evidence of their shared faith to establish, essentially, bias:  that Rankin improperly used, and Brown was influenced by, their shared faith, leading to her initially providing him with a false alibi.  I think that the Advisory Committee's Note to Federal Rule of Evidence 610 puts it best when it says that "[w]hile the rule forecloses inquiry into the religious beliefs or opinions of a witness for the purpose of showing that his character for truthfulness is affected by their nature, an inquiry for the purpose of showing interest or bias because of them is not within the prohibition."

So, this explains why Rule 610 was not an issue, and I also think that it explains why the probative value of the religious evidence was not substantially outweighed by dangers such as the dangers of unfair prejudice under North Carolina Rule of Evidence 403.  This was a situation where religion had a direct bearing on the case.  It gave jurors a specific reason to discount Brown's initial alibi and a specific reason to discount Rankin's innocence.

(Here is the Volokh Conspiracy post on the case)

-CM

Til Disclosure Do Us Part: Michigan Case Reveals State's Toothless Forumlation Of The Confidential Marital Communications Privilege

The recent opinion of the Michigan Court of Appeals in People v. Lutz, 2008 WL 2812134 (Mich.App. 2008), reveals that Michigan has a toothless confidential marital communications privilege.  In Lutz, Jeffrey Shannon Lutz was convicted of false report of a felony, discharging a firearm at an emergency vehicle, reckless use of a firearm, and making a false report to a police radio station.  Evidence presented at trial indicated that one day a detective recovered a gun from the crime scene that likely implicated Lutz and contacted Lutz, who was a sheriff's sergeant.  During opening statements, the prosecutor indicated that there would also be evidence presented that soon after receiving this call, Lutz left "suicide messages" on his estranged wife's cell phone, which he argued would prove that Lutz knew that he was guilty of the subject crimes.  At trial, the prosecution subsequently called the same detective who had called Lutz; the plan was that the detective would testify that soon after retrieving the "suicide messages," Lutz's wife called him and discussed the content of the messages.

Defense counsel objected, however, and the trial judge found such testimony inadmissible under Michigan 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."

After Lutz was convicted, he appealed, claiming, inter alia, that the state committed prosecutorial misconduct by mentioning the "suicide messages" during opening statements when evidence relating to those messages was later found inadmissible at trial.  The appellate court disagreed, noting that the decision to exclude under Michigan Rule of Evidence 403 is a discretionary decision which the prosecution could not have anticipated at the commencement of trial.

I agree with this part of the decision, but I think that things fall apart when we consider how this part of the decision was reached.  And such consideration starts with why the question of why the detective's testimony concerning the "suicide messages" was potentially admissible.  He was testifying about what Lutz's wife told him, which in turn was based upon statements made by Lutz.  So, there was "hearsay within hearsay" under Michigan Rule of Evidence 805, and each layer had to be admissible under some Rule for the detective to have been able to testify.  And the court found that this was indeed the case, with: (1) Lutz's statement being admissible as the admission of a party opponent under Michigan Rule of Evidence 801(D)(2)(A), and (2) the wife's statement being admissible as a present sense impression under Michigan Rule of Evidence 803(1).  Again, I have no problems with these findings.

But that leaves the question of why Lutz's messages to his wife weren't deemed inadmissible under the confidential marital communications privilege, which, under Michigan law, allows an individual to prevent his spouse from testifying concerning any confidential communications they shared with each other.  As I have noted before,  the purpose of the privilege is the same as the purpose behind the attorney-client privilege, the psychotherapist-patient privilege, and the clergy-penitent privilege:  to preserve a relationship that there is a societal interest in preserving by promoting the flee flow of information through alleviating any worries that the individuals might have that the secrets they share could later be aired out in a courtroom.

And this makes Michigan's reading of the privilege baffling.  According to the court in Lutz,

     "Our Supreme Court has held that the marital communications privilege provides protection only against a spouse being questioned as a sworn witness about a marital communication and, accordingly, does not preclude introduction of the marital communication through other means....Indeed, the Court specifically held that the marital communications privilege was inapplicable to hearsay statements from a police detective about statements made by a defendant's spouse....Thus, the marital communications privilege would not have precluded the prosecution from eliciting testimony from Detective Declerq relating what defendant's wife told him about a statement made by defendant. Similarly, the distinct spousal privilege generally protects a person from being compelled to testify against his or her spouse."

Really?  Doesn't this destroy the entire point of the privilege?  If the purpose of the privilege is to alleviate any worries that spouses might have that the secrets they share could later be aired out in a courtroom, how is that purpose effectuated if either spouse can vitiate the privilege by disclosing the communication to a third party?  This would be akin to a detective being able to testify that a defendant's attorney called and told him that his client admitted to him that he committed murder because it would be the detective and not the attorney testifying at trial, thus alleviating any privilege problem.  Moreover, while there would again be "hearsay within hearsay" in this hypo, the defendant's statement would be an admission, and the attorney's statement would be admissible as a statement against interest because it would expose him to sanctions, and he would be "unavailable" to testify based upon the attorney-client privilege.

I thus don't see any way that Michigan can defend its formulation of the confidential marital communications privilege.

-CM

Just A Little Harmless Bolstering?: Ninth Circuit Finds Improper Bolstering To Be Harmless Error In Cop's Appeal

I strongly disagree with the reasoning applied by the Ninth Circuit in its recent opinion in United States v. Gonzalez, 2008 WL 2778926 (9th Cir. 2008).  In Gonzalez, Gabriel Gonzalez was charged with acting under color of law to deprive three women of their bodily integrity in violation of 18 U.S.C. Section 242.  One of those women was Cecilia Tirado, who claimed that during the early morning in summer 2002, she was pulled over by an officer, who performed sobriety tests on her and ordered her into his patrol car.  She alleged that he then drove her by her home without letting her out and asked her whether she had a husband or boyfriend.  She finally claimed that after a long drive, the officer drove into a desolate parking lot, commanded her to undress, and penetrated her vagina.

The principal issue at Gonzalez's trial was the identity of the perpetrator, with Tirado testifying through an interpreter that she responded to a telephone survey by the Southgate police asking about citizen satisfaction with police activities and told her story.  While Tirado initially had identified the perpetrator as a Southgate police officer, when she was shown a photo-six-pack, she at once identified Gonzalez, a Los Angeles County sheriff's deputy, as the perpetrator.  At trial, Gonzalez testified that she was "100 percent sure" that Gonzalez had raped her.  However, despite this certainty, there were apparently "discrepancies in the dates to which she testified," which defense counsel probed on cross-examination (the Ninth Circuit's opinion doesn't make clear the nature of those discrepancies).  The prosecution thereafter gave Tirado's testimony the "official stamp of acceptance" by calling Sergeant Enrique Garza, the police officer who interviewed her, and who at trial retold the story of the assault as she had told it to him.

After he was convicted, Tirado appealed, claiming, inter alia, that the trial court erred in admitting Garza's testimony.  The Ninth Circuit agreed, finding that Tirado's prior statements were not admissible through Garza's testimony as prior consistent statements under Federal Rule of Evidence 801(d)(1)(B), which allows for the admission of a statement if:

      "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."

The Ninth Circuit properly found that while defense counsel questioned Tirado about the date discrepancies in her testimony, he never expressly or impliedly charged that her allegations were recent fabrications or the product of an improper influence or motive; instead, the defense merely claimed that she was mistaken.  That still left the issue, however, of whether this error necessitated a new trial or whether it was merely harmless error.  The Ninth Circuit chose the latter option, finding that:

     "A jury that believed that Tirado had had the awful experience-and no one doubted that she had-would very probably have believed that she could remember her assailant, even without the hearsay from Garza. Tirado stated at the time of her identification that she was “100 percent sure” that Gonzalez had raped her. Given this testimony, it is unlikely that any generalized vouching regarding Tirado's credibility altered the jury's verdict."

I see errors aplenty with this passage.  First, was Garza's testimony really generalized vouching?  I would say, "No."  If the prosecution called someone to testify that they knew Tirado and found her to be a truthful person, I would label that testimony generalized vouching.  Conversely, Garza retold the story of the assault as Tirado had told it to him.  In my mind, it's difficult to conceive of more specific vouching.

Second, the Ninth Circuit relied at least partially on the fact that Tirado testified that she was "100 percent sure" that Gonzalez had raped her.  I guess its point was that such certainty meant that Garza's testimony was unnecessary to make the jury believe her identification of Gonzalez.  I'm not sure that I would buy this reasoning in a regular case, but this was not a regular case.  Tirado initially thought that the person who raped her was a Southgate police officer, but she was wrong.  There were apparently date discrepancies in her testimony.  If I were a juror, these discrepancies would give me pause in believing her testimony, with Garza's bolstering testimony giving me a significant reason to press play and give her identification more weight.

Third, how could the Ninth Circuit possibly know that the jurors very probably believed that Tirado would have remembered her assailant based upon her indisputably awful experience?  I'm not a big fan of appellate review by mind reading, and even if the Ninth Circuit is correct, there are reams of research indicating that a stressful event, such as being raped, actually decreases the accuracy of identifications. See, e.g., Edward J. Imwinkelried, A Comparativist Critique of the Interface Between Hearsay and Expert Opinion in American Evidence Law, 33 B.C. L. Rev. 1 (1991).

In conclusion, I strongly disagree with the reasoning applied by the Ninth Circuit.  Its conclusion might very well still have been correct based upon other evidence and allegations in the case, but the reasons it proffered did not support a finding of harmless error.

When You Ride Alone, You Ride With Bin Laden: Judge Bars Some Interrogation Evidence In Trial Of bin Laden's Driver

The first American war crimes trial since World War II has already produced an interesting ruling.  The trial of Salim Hamdan, the former driver for Osama bin Laden, who has been accused of conspiracy and supporting terrorism, began yesterday at Guantanamo Bay, Cuba.  Hamdan met bin Laden in 1996 and began working on his farm before being promoted to a position as his driver.  Defense attorneys claim that Hamdan thereafter only kept the position because of its high salary, but prosecutors allege that Hamdan transported weapons for the Taliban and helped bin Laden escape U.S. retribution following the September 11th attacks.  Yesterday, his trial began before a jury of six officers, whom were selected from a pool of 13 flown in from other U.S. bases over the weekend.

Hamdan's trial is expected to serve as a litmus test of sorts for the justice or injustice that will be meted out by the oft-criticized military tribunal system, and if we're sticking with the litmus test metaphor, the results were not red on the first day.  Instead, Judge Keith Allred, a Navy Captain, ruled that the prosecution cannot use a series of interrogations of Hamdan conducted at the Bagram air base and in Panshir, Afghanistan, because of the "highly coercive environments and conditions under which they were made."  Specifically, Judge Allred found that at Bagram, Hamdan was kept in isolation 24 hours a day with his hands and feet restrained, with armed soldiers prompting him to talk by kneeing him in the back.  Meanwhile, he found that at Panshir, Hamdan's captors repeatedly tied him up, put a bag over his head and knocked him to the ground.  Judge Allred also indicated that he would throw out statements whenever a government witness is unavailable to vouch for the questioners' tactics.  Prosecutors are currently considering whether to appeal Allred's ruling, with the tribunals' chief prosecutor, Army Col Lawreence Morris, stating, "We need to evaluate...to what extent it has an impact on our ability to fully portray his criminality in this case, but also what it might set out for future cases."

The defense, however, was less successful in another regard, with Allred rejecting allegations of a coercive culture at Guantanamo, despite Hamdan's claim that interrogators were gatekeepers for medical treatment.  Allred instead found that the apparent link between medical care and Hamdan's cooperation with interrogators was "the natural consequence of agents seeking to help detainees in order to build rapport."  This ruling thus leaves the door open, at least for the moment, for the prosecution to use statements Hamdan made at Guantanamo, despite defense claims that all his statements were tainted by alleged abuse including sleep deprivation and solitary confinement.

Here at Evidenceprof, I've refrained from commenting much on these military tribunals because their legitimacy seems more a matter of Constitutional law than evidence law, and what they are doing doesn't really resemble the rules of evidence.  Nonetheless, I will likely provide some commentary here and there as interesting development arise throughout these trials.

-CM

DUN DUN!: Law & Order: UK To Begin Production This August With BSG's Jamie Bamber As One Of The Cops

It looks like Law & Order, the second longest running drama in American TV history, behind only Gunsmoke, will be opening shop across the pond this fall.  According to E! Online, Law & Order: U.K. will begin production this August and focus on the London judiciary and London cops.  And it looks like Jamie Bamber, who plays Lee Adama on one of Evidenceprof's favorite shows -- Battlestar Galactica -- will be playing one of the cops (I still remember being shocked when hearing Bamber talk on DVD special features with a thick British accent, which he hides nicely on the show).  I've had the chance to post on U.K. law a few times (see here and here), but I am definitely interested in learning more, and so I hope that BBC America or some other network shows it here a la Torchwood and that it's at least somewhat accurate.

-CM

Dead Man's Drop: North Carolina Case Reveals That It Still Has a Dead Man's Statute

The recent opinion of the Court of Appeals of North Carolina in Smith v. Mauldin, 2008 WL 2736416 (N.C. App. 2008), provides a nice illustration of why most states have repealed their Dead Man's Statutes.  In Mauldin, Thomas Smith executed and delivered to his sister, Sue Page, a $50,000 promissory note secured by a deed of trust on real estate located in Holden Beach.  Following the death of Page, the two documents were discovered by her daughter, Melisa Page Mauldin, who notified Smith that she was executrix of her mother's estate and that, as sole heir, she was also the successor beneficiary to the note.  Smith responded by demanding the return of the documents on the ground that the loan had never been funded.  Smith thereafter filed a complaint seeking damages and possession of the documents.  At the close of Smith's evidence, however, the trial court granted Mauldin's motion to dismiss, finding that Smith failed to present any written or competent oral evidence that there was a failure of consideration for the note and deed of trust, and the Court of Appeals of North Carolina affirmed.

The reason that Smith failed to present any such evidence was not, however, because he lacked it; instead, North Carolina Rule of Evidence 601(c), its Dead Man's Statute, disqualified him from testifying on the matter.  Pursuant to North Carolina Rule of Evidence 601(c),

     "[u]pon the trial of an action, or the hearing upon the merits of a special proceeding, a party or a person interested in the event, or a person from, through or under whom such a party or interested person derives his interest or title by assignment or otherwise, shall not be examined as a witness in his own behalf or interest, or in behalf of the party succeeding to his title or interest, against the executor, administrator or survivor of a deceased person, or the committee of a lunatic, or a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning any oral communication between the witness and the deceased person or lunatic."

In other words, the Rule bars testimony by an interested party in court proceedings concerning any oral communication between the witness and the deceased person. As I have noted before, 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.  As I have also noted, however, most states have abolished their Dead Man's Statutes. See Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007).  And the reasons that they have done so are directly applicable to Mauldin, assuming that Smith was being honest.  According to Page,

     "The main problems with the Dead Man's Statute are that it runs contrary to the philosophy underlying the general rule of witness competency and that it stifles potentially valid claims where an honest claimant has only his own testimony upon which to rely. The Statute operates to level the playing field by 'sealing the lips' of an interested survivor who wishes to testify about a transaction with a person whose 'lips have been sealed' by death.  The problem arises, then, when the claimant is honest, yet has only his own testimony on which to rely. Without his own testimony to prove his claim, the honest claimant is left without a remedy."

Under the common law, courts did the same to categories of individuals through a patchwork of rules deeming certain groups of individuals incompetent to testify at trial, including:  felons (and those convicted of crimes of crimen falsi) under the doctrine of infamy; spouses under the doctrine of coverture; and atheists on the grounds of irreligion.  These rules were meant to ensure that juries would base their verdicts on truthful evidence and to protect the souls of those who might otherwise be tempted to commit the mortal sin of perjury.

Of course, these competency rules have all been taken off the books, with courts and legislatures now generally allowing everyone to testify and then be impeached by opposing counsel.  The only Rules still around which deem certain groups of individuals incompetent to testify at trial are those which deal with the truly incompetent (Federal Rule of Evidence 601), lay witnesses who lack personal knowledge (Federal Rule of Evidence 602), those who refuse to take the oath or a nonreligious alternative (Federal Rule of Evidence 603), presiding judges (Federal Rule of Evidence 605) and seated jurors (Federal Rule of Evidence 606).  In light of these facts, I think that the time has come for North Carolina and the few states which still have Dead Man's Statutes to take them off the books.

-CM

Illinois...Oh, Illinois: Murder Case Reveals Confusing Status Of Statement Against Interest Exception In Illinois

The upcoming trial of Kenneth E. Smith reveals that Illinois courts apply a confusing version of the statement against interest exception to the rule against hearsay that is a hodgepodge of Supreme Court precedent and the Federal Rules of Evidence.  Smith has been charged with the 2002 murder of Lakemoor businessman Raul Briseno.  Allegedly, however, a McHenry woman told the police and others that she and two others were responsible for the murder, but police ultimately rejected her story as incredible.  Smith, however, wants jurors to hear her statements in his forthcoming trial, and McHenry County Judge Sharon Prather seemed receptive to such testimony although she noted that she would not be able to decide which of the woman's many statements to police, friends, and relatives would be permitted until she learns what exactly she said and the circumstances under which she said it.  And such a final determination likely will not come until the midst of Smith's trial.

Looking at Illinois precedent, I can't see the reason for the delay.  Pursuant to Federal Rule of Evidence 804(b)(3) and most counterparts, "[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" is admissible as an exception to the rule against hearsay if it was made by an "unavailable" declarant.  However, "[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

So, if we take a case where a defendant is on trial for murder and someone else confessed to the murder, the confession would tend to subject the declarant to criminal liability for the murder and would thus be admissible under Rule 804(b)(3) if (1) the declarant were "unavailable" to testify at trial (likely based upon claiming her Fifth Amendment right against self-incrimination); and (2) there were sufficient corroborating circumstances.  And while the second part of this analysis is less clear than the first, courts have laid out relatively clear tests for making the determination, with my favorite being the five part test laid out by the Fourth Circuit in United States v. Lowe, 65 F.3d 1137, 1146 (4th Cir. 1995), which considers:

     -(1) whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement;

     -(2) the declarant's motive in making the statement and whether there was a reason for the declarant to lie;

     -(3) whether the declarant repeated the statement and did so consistently;

     -(4) the party or parties to whom the statement was made;

     -(5) the relationship of the declarant with the accused; and

     -(6) the nature and strength of independent evidence relevant to the conduct in question

In Illinois, however, which does not have a evidentiary code, the analysis is much more complicated.  Basically, it starts with the United States Court's opinion in Chambers v. Mississippi, 410 U.S. 284 (1973).  In Chambers, the Supreme Court held, inter alia, that a Mississippi court erred by precluding the defendant from introducing a statement indicating that the declarant and not the defendant was guilty of the subject murder because there were four factor supporting its admissibility:

     (1) the statement was made spontaneously to a close acquaintance shortly after the crime occurred;

     (2) the statement was corroborated by other evidence;

     (3) the statement was self-incriminating and against the declarant's interest; and

     (4) there was adequate opportunity for cross-examination of the declarant.

So, in the years following Chambers, "Illinois courts used a mechanistic approach, holding that all four factors, as listed in Chambers, had to exist before" a statement against interest could be admitted. People v. Rutherford, 653 N.E.2d 794, 799 (Ill. App. 1 Dist. 1995).  This view persisted until the opinion of the Supreme Court of Illinois in People v. Bowel, 488 N.E.2d  995, 999 (Ill. 1986), in which it found that:

     "The four factors which the court enumerated in Chambers v. Mississippi are to be regarded simply as indicia of trustworthiness and not as requirements of admissibility. The question to be considered in judging the admissibility of a declaration of this character is whether the declaration was made under circumstances that provide 'considerable assurance' of its reliability by objective indicia of trustworthiness."

Instead, it found that Federal Rule of Evidence 804(b)(3) "codified the admissibility of a statement made against penal interest." Rutherford, 653 N.E.2d at 800.  So, did that mean that Federal Rule of Evidence 804(b)(3) was the law of the land in Illinois?  Some courts thought so. See, e.g., People v. Rice, 617 N.E.2d 360 (Ill. App. 1 Dist. 1993).  However, they were soon rebuffed by the Supreme Court of Illinois, which in People v. Rice, 651 N.E.2d 1085 (Ill. 1995), which "collapsed Chambers and Rule 804(b)(3), selecting parts of each to reach its decision." Rutherford, 653 N.E.2d at 800.

In other words, the state of the law is so unsettled that litigants can't really know what to expect in cases where they seek to admit or exclude statements against interest.  All of which makes incoming Illinois Supreme Court Chief Justice Thomas R. Fitzgerald's claim that he is going to "try to do something with possibly codifying the law of evidence in Illinois" of supreme importance.  As the above indicates, the state of evidence law in Illinois is currently unacceptable. 

-CM       

Blood On The Tracks: Fifth Circuit Makes Seemingly Erroneous Subsequent Remedial Measure Ruling In Railroad Accident Appeal

The recent opinion of the Fifth Circuit in Baker v. Canadian National/Illinois Central R.R., 2008 WL 2747464 (5th Cir. 2008), contains what seems to me to be an incorrect application of Federal Rule of Evidence 407, which deals with the (in)admissibility of evidence of subsequent remedial measures.

In Baker, Illinois Central hired a contractor to remove vegetation, dirt, and other obstructions from the railroad's right of way at a public railroad crossing, and Charles Baker worked for the contractor as a dump truck driver.  While performing this excavation work in his dump truck, Baker was struck by one of Illinois Central's trains, causing him to be injured.  Baker thereafter sued Illinois Central and alleged that it was negligent for failing to provide flagmen or other protections and for not installing lights or gates at the crossing.  Instead, at the time, Illinois Central merely had stop signs and crossbucks at the site of the accident.  This would soon change, however, with Illinois Central installing lights and gates two years after Baker's accident.  The trial court, however, precluded Baker from presenting the evidence of these subsequent remedial measures, and the jury eventually entered a verdict in Illinois Central's favor.

Baker appealed, claiming, inter alia, that the trial court erred by precluding him from presenting the evidence of Illinois Central's subsequent remedial measures, and the Fifth Circuit noted that the issue was governed by Federal Rule of Evidence 407, which states that:

     "When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."

Thus, if Baker were merely using the evidence concerning the installation of lights and gates to prove that Illinois Central was negligent, the evidence would have been inadmissible under the Rule.  And the twin reasons for that Rule are that: (1) someone making something safer doesn't mean that it was unsafe before, and (2) we don't want to discourage people or companies from making instrumentalities safer after an accident.

However, the Rule cannot be used as a shield and a sword, meaning that a defendant can't prevent the introduction of evidence that it enacted a subsequent remedial measure while at the same time presenting testimony that such a measure was not feasible.  Instead, when a party controverts feasibility, the opposing party can present evidence of a subsequent remedial measure both as substantive evidence of feasibility and as impeachment evidence, i.e., evidence that the jury has a reason to distrust the testimony who controverted feasibility.

And indeed, this was Baker's argument for the admissibility of the evidence.  He noted that Illinois Central called the locomotive engineer on the train that struck Baker's truck and that he testified that "gates are probably not as safe as just a stop sign and crossbuck" and that any crossing design expert who believed otherwise "could come ride that train with me and they will see I'm right."  This seems like a compelling argument to me, but the Fifth Circuit was not convinced.  Why?

Well, it cited to its previous opinion in Muzyka v. Remington Arms, 774 F.2d 1309 (5th Cir. 1985), in which it found that a plaintiff suing a rifle manufacturer for the injuries she sustained when a magazine-fed bolt-action rifle discharged while her stepfather was attempting to unload it was allowed to present evidence of subsequent remedial measures after several of the defendant's expert witnesses testified that the rifle was the safest in the world.  The Fifth Circuit then concluded:  "We decline to analogize the analysis of Remington's numerous experts to the lone opinion of Illinois Central's locomotive engineer, a lay witness."  Instead, it found that "when the decision to admit or exclude evidence of a design change is a close call, a district court's decision to exclude the evidence is within its discretion."

To me, this argument seems akin to calling someone "a little pregnant."  Sure, having several witnesses call a rifle the safest in the world controverts feasibility more than one lay witness saying that stop signs and crossbucks were safer than gates.  But that's not the issue.  As long as the locomotive engineer's testimony could be construed as controverting feasibility, Baker should have been able to introduce the light and gate testimony.  So, what does prior Fifth Circuit precedent tell us about whether the trial court's decision to exclude the evidence was a "close call?"

Well, in Reese v. Mercury Marine Div. of Brunswick Corp., 793 F.2d 1416 (5th Cir. 1986), the defendant had one witness, who was not identified as an expert witness, testify that direct manufacturer warnings to consumers concerning a kill switch on an outboard motor were not likely to be successful.  The trial court found that the testimony meant that the defendant controverted feasibility, meaning that the plaintiff could present evidence that the defendant subsequently included direct manufacturer warnings in its operations manual.  The Fifth Circuit affirmed, holding that "[w]hether something is feasible relates not only to physical possibility, cost and convenience, but also to ultimate utility and success in intended performance....[The defendant]'s suggestion during trial that only the retailer could properly instruct the ultimate consumer regarding kill switch use clearly controverts the utility and likelihood of success of direct manufacturer warnings."

It seems clear to me that the locomotive engineer's testimony controverted the utility and likelihood of success of installing gates at the crossing, meaning that Illinois Central controverted feasibility and that Baker should have been able to present evidence of subsequent remedial measures.  What do readers think?

-CM

Wall Of Silence, Take 2: Spontaneous Nature Of Spector's Alleged Past Violence Makes Common Plan Doctrine Inapplicable

On Wednesday, I posted about the Phil Spector retrial for the alleged shooting murder of Lana Clarkson.  In the post, I noted that testimony concerning occasions on which  Spector allegedly threatened other women with guns but did not shoot or murder any of them was likely inadmissible under a common plan or scheme/modus operandi/signature crime theory.  As I noted, the theory behind such evidence is that it is being used, not to prove propensity.conformity, but to prove that nobody else besides the defendant could have committed the crime at issue.  I then noted that "even courts taking a more liberal approach would require substantial similarity among each of the crimes sought to be admitted."

Well, a reader e-mailed me and informed me that California courts are among those taking a more liberal approach.  Essentially, the Supreme Court of California adopted this approach in People v. Ewoldt, 867 P.2d 757, 770 (Cal. 1994), where it held that:

     "[t]o establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense."

This liberal approach had drawn the ire of many commentators, including UC Davis School of Law Professor Edward Imwinkelried, who referred to it as an "unlinked" plan theory of the common plan doctrine.  Personally, I agree and think that in such cases, courts are allowing for the admission of propensity/conformity evidence under the guise of using the common plan or scheme doctrine.

So, does this change my analysis at all?  I don't think so.  Even though California seemingly requires minimal similarity instead of substantial similarity, I still don't see how the court can find that alleged acts in which Spector threatened violence can be found similar enough to an alleged act in which he actually committed violence by shooting and killing Clarkson to form a common plan or scheme.  Moreover, my research reveals an even more fatal flaw in the prosecution's argument.

According to the prosecutor, the testimony from other women who were allegedly threatened by him with guns is admissible because it establishes that "when Spector is confronted with a certain set of stimuli, he reacts in the same way — he reaches for his gun."  Now, let's look at the opinion of a California appellate court in People v. Scheer, 68 Cal.App.4th 1009 (Cal.App. 2 Dist. 1998).  In Scheer, the defendant allegedly fled from the scene of a car accident, and the trial court allowed for the admission of evidence that he had previously fled from police after a traffic violation as evidence of a common plan.

The appellate court found that this was error because:

     "Although the prior flight offense and charged crime were committed in a similar manner, i.e., appellant drove through residential areas recklessly with flagrant disregard for the safety of others, and shared the same general purpose of avoiding capture and accountability for his misdeeds, such characteristics are insufficiently probative to constitute evidence of a common plan or design. Instead, the only reasonable inference is that the prior flight and the charged crime were spontaneous events....Neither flight was a planned event. Instead, each was a spur of the moment response to an unexpected event, i.e., the sudden appearance of the police in the prior instance and the attempt by volunteer bystanders to detain him after the accidental collision in the other."

As support, the court cited to a previous opinion by the Supreme Court of California in which it found in a defendant's murder trial in which he allegedly stomped the victim in the stomach that evidence of two prior spontaneous acts were inadmissible to prove common plan:  (1) evidence that he kicked a former girlfriend in the ribs, and (2) evidence that he kicked another person during a separate altercation. See People v. Sam, 454 P.2d 700 (Cal. 1969).

Here, by the prosecutor's own admission, Spector's threatened gun violence is a reaction to a certain set of stimuli, i.e., it is a spontaneous reaction rather than something he had planned ahead of time.  Spector thus seems to be in the exact same position as the man accused of stomping another man to death, and his alleged prior misdeeds should be held inadmissible for the same reason.

-CM   

The Dark (Of) Night: Tennessee Court Finds Attorney Did Not Err In Failing To Object To Testimony About Defendant's Lack Of Church Attendance In Batman Related Case

In honor of the opening of Christopher Nolan's "The Dark Knight," (currently 92% fresh on Rotten Tomatoes), I thought I would do a Batman-related post (after all, they did a "Harvey Dent for District Attorney" demonstration outside of my law school).

In Webb v. State, 2007 WL 2570201 (Tenn.Crim.App. 2007), the Court of Criminal Appeals for Tennessee granted portions of Floyd "Butch" Webb's petition for post-trial relief and denied other portions.  Webb had been convicted of child sexual abuse and sexual assault charges in connection with alleged acts he committed against his stepdaughter.  The acts which the court gave details about consisted of:

     -Webb coming into his stepdaughter's room one night (ostensibly at 1:00 a.m.) after he got home from work, getting into her bed, and touching her breasts and vagina;

     -Webb again arriving home at 1:00 a.m., coming into his stepdaughter's bedroom, getting under her covers, and touching her breasts and vagina;

     -Webb coming into the victim's room wearing a Batman mask around Thanksgiving 2005, scaring her, coming back to apologize after she was consoled by her mom and aunt, and rubbing the victim's breasts and vagina; and

     -Webb getting his stepdaughter in a headlock around Christmas, 2005, acting like he was tickling her, and then rubbing her breasts and vagina.

After Webb was convicted, he petition for post-trial relief, claiming, inter alia, that he was not given the effective assistance of counsel.  Specifically, he claimed that his trial attorney was ineffective in failing to prevent the admission of testimony regarding the Webb's lack of church attendance and failure to work.  Webb argued on appeal that this evidence was unfairly prejudicial to him because it created the risk that the jury would infer that he was lazy and irreverent toward religion.  He thus contended that the testimony was inadmissible under Tennessee Rule of Evidence 403, which provides 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."

His trial attorney countered that the testimony was admissible because it was relevant to show opportunity, i.e., that Webb had opportunities to be alone with his stepdaughter at home.  The Court of Criminal Appeals for Tennessee detemined that "[b]ecause this evidence was arguably admissible at trial, it was properly a matter of trial strategy for Counsel to refrain from objecting." Really?

Looking at the first two acts, they allegedly occurred after Webb returned home from work at 1:00 a.m.  I thus don't see how evidence that Webb had periods of time where he allegedly failed to work was relevant to prove opportunity in these instances because it was averred that he was working.  Furthermore, I'm not sure how lack of church attendance was relevant to prove opportunity when these acts allegedly occurred at 1:00 a.m.

Looking at the third act, it allegedly occurred when the stepdaughter's mom and aunt were home, so clearly testimony about Webb's lack of employment church attendance was not admissible to prove that he was he had the opportunity to be with his stepdaughter at home.  Also, based upon the proximity of the act to Thanksgiving, it's likely that Webb's lack of employment was irrelevant because he wouldn't have been working anyway.

Looking finally at the fourth act, the opinion doesn't reveal whether anyone else was home at the time of the alleged act, but again, based upon the proximity of the act to Christmas, it's likely that Webb's lack of employment was irrelevant because he wouldn't have been working anyway (and it's quite probable that other people were home).

Thus, I'm not sure that the testimony at issue had any probative value on the issue of opportunity, and I would contend that any such probative value was substantially outweighed by its unfairly prejudicial effect.  Tennessee Rule of Evidence 610 proscribes the introduction of "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced."  And while this Rule does not strictly prevent the type of testimony presented against Webb, I've noted before that any evidence concerning an individual's religious beliefs or lack thereof is highly prejudicial and should only be admissible if it has a direct bearing on a case.  Thus, while the court properly granted part of Webb's petition on other grounds, it should have also done so on the ground that his trial attorney improperly failed to object to this testimony.

-CM

Wall of Silence?: Defense Counsel In Phil Spector Retrial Moves To Exclude Testimony From Women About His Proclivity To Threaten Women With Guns

Six was apparently one too many for defense counsel in the upcoming retrial of Phil Spector for the murder of actress Lana Clarkson.  The first trial of Spector, who invented the Wall of Sound, worked with artists as varied as Ike and Tina Turner and the Ramones, and was married to one of my mom's favortes, Ronnie Spector, ended in a hung jury last year.  The reason for the indecision was apparently that jurors couldn't decide whether Spector shot Clarkson or whether the gunshot wound causing her death was self-inflicted.  This was despite the fact that Spector appeared in court with hair that would make Art Garfunkel blush and the testimony of five women who testified that Spector had a proclivity for threatening women with guns.

During the retrial, the prosecution might not have the benefit of either.  That's because earlier this week, prosecutors disclosed their intention to call a sixth woman to testify about Spector's alleged proclivity, prompting defense counsel the next day to move to exclude the testimony of all six women.  And, without having followed the specifics of the first trial too closely, my immediate reaction was to wonder why they didn't make a similar motion in the first trial.

Pursuant to California Code of Evidence Section 1101(a), "[e]xcept as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion."  In other words, evidence that Spector threatened other women with guns would be inadmissible to prove that he had a propensity to threaten women with guns and that he likely acted in conformity with that propensity by threatening Clarkson with a gun.  Because the probative value of such evidence relies on the aphorism, "Once a criminal, always a criminal," California, like other states, proscribes its introduction into evidence.

California Code of Evidence Section 1101(b), however, indicates 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 section and the similar Federal Rule of Evidence 404(b) and state counterparts, courts allow for the admission of a pattern of prior crimes to prove modus operandi, common plan or scheme, or signature crime.  The theory behind such evidence is that it is being used, not to prove propensity.conformity, but to prove that nobody else besides the defendant could have committed the crime at issue. See, e.g., United States v. Powers, 59 F.3d 1460, 1474 n.2 (4th Cir. 1995).  So, for instance, evidence might indicate that two defendants had a pattern of crimes in which they stuffed towels in sinks and left them running after committing burglaries.  Or, a defendant might have a pattern of killing homeless individuals and tying red ribbons around the wrists.  Or, a defendant might have a pattern of killing victims, draining their bodies of blood, and neatly chopping their bodies into pieces.

All three of these examples would be the types of distinctive "patterns" that would allow for application of a modus operandi theory of admissibility, and even courts taking a more liberal approach would require substantial similarity among each of the crimes sought to be admitted.  And it seems to me that defense counsel has a compelling argument against admissibility beyond the fact that, unfortunately, threatening violence against women is not especially unique or distinctive.  And that is that with regard to the earlier incidents with other women, "None involved an act similar to the one that the state was attempting to prove here, i.e. that Spector fired a gun."

I simply don't see how the prosecution can argue that the allegations of the other women prove a modus operandi on the part of Spector when none of their allegations claimed that Spector committed the act at issue in his case:  shooting a gun and committing murder.  And, precedent from across the country also wouldn't seem to support admissibility either. See, e.g., Commonwealth v. Vedam, 502 A.2d 1383 (Pa. Super. 1985).

-CM

Evidence Laws Turned Upside Down Down Under?: Victorian Government Finally Introduces Evidence Bill, 2008

It's taken 4 years, but the Victorian government has finally introduced the Evidence Bill, 2008, which, if passed, would make Victoria the 4th Australian jurisdiction (after the Commonwealth, NSW, ACT, and Tasmania) to adopt the uniform evidence legislation.  The entire enterprise seems to me to be fairly significant and somewhat akin to when the Federal Rules of Evidence took effect here in 1975.  That's not to say that Australia previously lacked an evidence code, but that code -- Evidence Act, 1958 -- has been the subject of much derision, with an Australian Supreme Court judge lecturing on evidence to a Bar Readers Course saying that the rules within it are so ridiculous that only especially irritating middle class unrepresented litigants ever dare to raise them.

One of the main problems with the earlier code, as indicated by the Media Release accompanying the bill, was its rigid approach to hearsay evidence.  Indeed, my research on the matter led me to a law review article indicating that while "leading judges in Australia attempted to introduce a more flexible approach to hearsay," their efforts were met "with only modest success." Marc Rosenberg, The Contribution of Chief Justice Lamer to the Development of the Law of Hearsay, 5 Can. Crim. L. Rev. 115, 176 (2000).  The same isn't true for Evidence Bill, 2008, which has profligate hearsay exceptions built into its Chapter 3, which covers hearsay.

Speaking of the Media Release, the most interesting thing about it is that it touts with much ballyhoo that the "[n]ew evidence laws will cut red tape and potentially save Victorian businesses about $10 million a year."  I'm not sure that I've ever seen an evidentiary change linked to the economy before, and in looking at the reason cited by the Media Release, I'm troubled.  According to the Release, the reason for the financial savings is that:

     “The legislation removes the original document rule which, when combined with current statute law, is complex and unwieldy.  The rule has resulted in businesses, Government and not-for-profit organisations retaining documents in their original form as part of a prudent risk-management strategy for potential litigation. This places an unnecessary record-keeping burden on businesses.  The abolition of the original document rule will bring much-needed clarity to this area of the law....In fact we predict that we can save business $154 million per year by July 2009 and $256 million per year by July 2011 – just by cutting red tape."

Now, I know that many people feel that the Original Document Rule, or Best Evidence Rule, is archaic and no longer necessary in modern society.  I, however, feel the opposite, as I express in my forthcoming article, Even Better than the Real Thing.  I believe that because now nearly anyone can create a fairly convincing forgery fairly quickly, and because originals may possess physical characteristics of the highest importance which no copying process can produce, the Rule has continuing vitality and that the proposed change could cause acute damage.

There are, however, some more positive changes that Evidence Bill, 2008 would make such as:

    -Creating a specific exception to the hearsay rule to allow for evidence to be given of the existence or content of traditional laws and customs of an Aboriginal or Torres Strait Islander Group.

This seems to me to be similar to Federal Rule of Evidence 803(20), which allows for the admission, as an exception to the rule against hearsay, of "[r]eputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

     -Extending the courts' discretion to excuse a married person from testifying against their partner to de facto partners, including same sex partners.

This seems to be a very positive development and in line with what I recommended California adopt in the wake of the recent ruling of its Supreme Court.

     -Promoting uniformity in the evidentiary rules in Australia.

I will note, however, that some have claimed that there won't be complete uniformity, even if Evidence Bill, 2008 takes effect.

(Hat Tip to my colleague, Mark Wojcik, for sending me this story).

[EDIT:  Stephen Warne, whose post I hyperlinked in my post sent my an e-mail concerning some errors I made In my post.  Warne points out that:

     First, the Evidence Act, 1958 (Vic.) is a Victoria-specific statute, and so is not 'Australian'. There are other somewhat similar but nevertheless very different statutes in other statues which have not adopted the uniform evidence legislation. And it is just an Act which modifies the common law and so is certainly not a 'code' as we understand that term in relation to statutes in Victoria.  Secondly, our highest court is the High Court and the states each have an inferior Supreme Court at the top of their tree. The judge was a judge of the Supreme Court of Victoria. Thirdly, he did not say 'the rules within it' are so ridiculous, but rather that a couple of them were.]

-CM 

Northwestern Colloquy Publishes Final Version of My Essay, Ordeal By Innocence

Today, the Northwestern Colloquy published my essay, Ordeal by Innocence: Why There Should Be a Wrongdul Incarceration/Execution Exception to Attorney-Client Confidentiality.  The editors at Northwestern did a great job of editing the piece, resulting in some very positive changes and additions to it since the version I previously posted on SSRN.  What I really like about the Colloquy format is that, like a blog, it allows for comments to the essay so that a dialogue about the essay can be continued beyond my initial thoughts.  So, if you have anything you would like to write about the essay after reading it, you can post a comment here, and I will be sure to respond promptly.

Once again, here is the abstract for the essay:

"In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession. Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

How does such an injustice occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted. And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent reasonably certain death or substantial bodily harm, the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example. Conversely, Massachusetts Rule of Professional Responsibility 1.6(b)(1) permits attorneys to disclose client information to, inter alia, prevent the wrongful execution or incarceration of another. This article argues that the 25 states which have adopted some form of amended Model Rule 1.6(b)(1) can and should read a similar wrongful incarceration/execution exception into their existing Rules while the remaining 24 states (and the District of Columbia) which have not adopted some form of amended Model Rule 1.6(b)(1) should create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions."

-CM