EvidenceProf Blog

Punch-Drunk Love: Case Reveals 3 Differences Between Hawai'i And Federal Rule Of Evidence 404(b)

The recent opinion of the Supreme Court of Hawai'i in State v. Pond, 2008 WL 4381673 (Hawai'i 2008), reveals that there are three key differences between Hawai'i Rule of Evidence 404(b) and Federal Rule of Evidence 404(b).  In Pond, Kevin Pond appealed from a judgment convicting him of the offense of abuse of family or household member and interference with reporting an emergency or crime.  That household member was Pond's girlfriend, Miae Russell, and Pond sought to prove at trial, inter alia, that Russell had previously assaulted him to help establish his claim of self-defense, in which he asserted that Russell was drunk and punched him before he responded in kind.  The problem for Pond was that he did not notify the court or the prosecution of this alleged assault until minutes before his trial was scheduled to begin, at which time he moved for a continuance.  The court rejected this motion, finding that Pond had failed to comply with the pre-trial notice provisions of Hawai'i Rule of Evidence 404(b).

Hawai'i Rule of Evidence 404(b) states that:

     "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.  It may, however, be admissible where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.  In criminal cases, the proponent of evidence to be offered under this subsection shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the date, location, and general nature of any such evidence it intends to introduce at trial."

Meanwhile, Federal Rule of Evidence 404(b) indicates that:

     "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."

As the Supreme Court of Hawai'i noted, the pre-trial notice requirement of Hawai'i Rule of Evidence 404(b) thus differs from the pre-trial notice requirement of its federal counterpart in three regards:

     (1) the Federal Rule merely requires prosecutors to provide pre-trial notice while the Hawaii Rule requires any proponent of Rule 404(b) evidence to provide pre-trial notice;

     (2) the Federal Rule requires "a request by the accused" while there is no request requirement in the Hawaii Rule; and

     (3) the Hawaii Rule requires a more detailed form of notice.

Thus, if Pond's case were governed by the Federal Rules of Evidence, he would not have needed to provide pre-trial notice of his intention to introduce evidence concerning Russell's alleged assault of him, but he was required to do so under Hawai'i Rule of Evidence 404(b), and his failure to do so foreclosed the introduction of this evidence.

Pond did try to argue that the pre-trial notice requirement of Hawai'i Rule of Evidence 404(b) violated his rights under the Confrontation Clause (and, seemingly, the Compulsory Process Clause), but the Hawai'i Supremes rejected the argument, concluding that the Rule's policy of reducing surprise and promoting early resolution on the issue of admissibility justified the limitations of the defendant's right to present the evidence.

-CM

Suicidal Tendencies?: Ninth Circuit Finds Court's Decision To Exlcude Expert Testimony Didn't Violate His Right To Present A Defense

In it recent opinion in Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008), the Ninth Circuit addressed an issue which I don't think has ever been raised before:  Can a court's discretionary decision to preclude a criminal defendant from present expert evidence deny him his right to presenting relevant evidence in his own defense?

In Payne, a Washington state jury convicted Jeffrey Moses of second degree murder for the shooting death of his wife, Jennifer.  Payne's defense at his trial was that Jennifer, who was suffering from depression and substance abuse, shot and killed herself.  The trial court, however, precluded him from proving this defense through certain testimony by Dr. Lawrence Wilson, an expert on depression.

In a preliminary evidentiary hearing, Dr. Wilson explained that he was prepared to testify regarding the nature of Jennifer's depression and substance abuse, the unlikelihood that her depression would have resolved itself before the date she died, and the ability of a person who was severely depressed to appear normal to friends and co-workers (which would have rebutted the government's lay testimony that Jennifer was not visibly depressed in the final months of her life).

Dr. Wilson was also prepared to testify that several risk factors, such as depression, substance abuse, and access to firearms, heighten the risk of suicide.  Additionally, he was prepared to testify that lay persons do not fully understand the implications of major depression and the connection between these various risk factors and suicide.  Although Dr. Wilson was not willing to opine that Jennifer Moses committed suicide, he was prepared to testify that Jennifer Moses fell "into a group of people with an extreme number of severe and significant risk factors for suicide" and that "she continued to suffer [from] major depression...that continued to the time of her death."  Ostensibly, he was also prepared to testify "that 15 percent of those diagnosed with major depression will take their own life at some point in their life."

The trial court, however, decided to exclude Dr. Wilson's testimony on three grounds. First, it stated that Dr. Wilson's opinion that persons who suffer from depression, abuse drugs and alcohol, and have access to firearms experience a relatively higher risk of suicide was already within common knowledge of the jury.  Second, it concluded that Dr. Wilson's testimony was cumulative in light of the other evidence introduced by the defense establishing that Jennifer was undergoing treatment for substance abuse, suffered from depression, experienced suicidal thoughts, and had a gun in the house. Third, the court concluded that Dr. Wilson's remaining testimony-namely, "that 15 percent of those diagnosed with major depression will take their own life at some point in their life"-was not sufficiently probative to outweigh its prejudicial effects and potential to confuse the jury.

After unsuccessfully attempting to appeal this verdict in the state system, Moses filed a petition for a writ of habeas corpus in federal district court, claiming, inter alia, that certain evidentiary rulings, such as the preclusion of this testimony by Dr. Wilson, deprived him of rights secured by the Constitution.  The district court denied the habeas petition, prompting Moses to appeal to the Ninth Circuit. 

In his appeal, Moses alleged that court's decision to preclude this testimony by Dr. Wilson was contrary to the Supreme Court's precedents holding that defendants have a constitutional right under the Due Process Clause of the Fourteenth Amendment and the Compulsory Process Clause of the Sixth Amendment to present relevant evidence in their own defense.  In rejecting this argument, the Ninth Circuit noted that these "right to present a defense cases" all concerned per se rules that prevented defendants from presenting evidence. 

For instance, in Washington v. Texas, 388 U.S. 14 (1967), Washington statutes prevented a defendant from presenting the exculpatory testimony of his alleged accomplice because the statutes per se precluded defendants from offering the testimony of a person charged or convicted as a co-participant in the same crime.  In Chambers v. Mississippi, 410 U.S. 284 (1973), inter alia, a Mississippi rule precluded the defendant from impeaching a witness through evidence of his confessions to the subject crime because the rule per se precluded such impeachment under the voucher rule.  And in Rock v. Arkansas, 483 U.S. 44 (1987), the Arkansas Supreme Court concluded that the defendant's hypnotically refreshed testimony was inadmissible because it found that hypnotically refreshed testimony is per se inadmissible.

As the Ninth Circuit correctly noted,

     "Rule 702 is different in kind from the rules in [these cases.]  The evidentiary rules in those cases, by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification. In general, the rules precluded a defendant from testifying, excluded testimony from key percipient witnesses, or excluded the introduction of all evidence relating to a crucial defense. In contrast, Rule 702 does not require a trial court to exclude evidence. Rather, it authorizes a court to admit expert testimony 'if it will assist the trier of fact to understand the evidence or a fact in issue.'  Accordingly, a decision that Rule 702 itself is constitutional would be consistent with Supreme Court precedent."

Having disposed of this argument, the Ninth Circuit quickly rejected the argument that the court's application of Rule 702 violated his right to present a defense.  Instead, it found that "Moses ha[d] not identified, and we have not found, a Supreme Court case holding that such an exercise of discretion to exclude expert testimony violated a criminal defendant's constitutional right to present relevant evidence."   

While I agree with the Ninth Circuit's well reasoned opinion, I am extremely troubled with at least part of the trial court's evidentiary ruling.  As I noted, the court concluded that Dr. Wilson's testimony "that 15 percent of those diagnosed with major depression will take their own life at some point in their life"-was not sufficiently probative to outweigh its prejudicial effects and potential to confuse the jury. 

First of all, this conclusion misstated Washington Rule of Evidence 403, which indicates that relevant evidence may be excluded only 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."  Second, do readers really think that this proposed testimony was more (unfairly) prejudicial/confusing than it was probative by any degree?  Payne's defense at trial was that his wife committed suicide.  Dr. Wilson's proposed testimony indicated that based upon her major depression, there was a decent possibility that she committed suicide.  This evidence went directly to the defense's theory of the case and thus was highly probative.  And because it went directly to his theory of the case, how did it confuse the issues or cause undue prejudice to the prosecution at all, let alone to a greater extent than the proposed testimony was probative?

-CM

WAMU In D.C.: D.C. Court Of Appeals Finds Document Not Discoverable Because It Wasn't Used To Refresh Witness' Recollection

Earlier, I wrote a post about a federal court in Illinois which held that an attorney cannot use documents to refresh a witness' recollection and then claim that the document is entitled to work product protection.  The post also noted that there is some precedent to the contrary on the issue, with some courts holding that the work product protection should not be breached in such situations.  Well, the recent opinion of the D.C. Court of Appeals in Clampitt v. American University, 2008 WL 4346424 (D.C. 2008), does not fall into either of these camps, but it does clarify that for the protection to be breached, the document at issue needs to be used to refresh the witness' recollection.

In Clampitt, after Susan Clampitt was terminated from her position as Executive Director of WAMU, a public radio station owned and operated by American University.  She thereafter sued the University and its then-President Benjamin Ladner, alleging breach of employment contract; tortious interference with contract; breach of the duty of good faith and fair dealing; defamation; and a refusal by the University to pay her for accrued but unused vacation benefits.  While the facts of the case are quite extensive, here were the main allegations made by Clampitt:

     -"Soon after her arrival at the station, Clampitt launched an effort to improve station operations in order to increase the size of the listening audience and to attract new and larger contributions from donors. The budgets that she proposed called for use of the station's cash reserves to finance improvements, a strategy that would require the station to incur operating deficits in the initial years. On September 12, 2000, Ladner specifically approved a spending plan that acknowledged that while 'reserves are not meant to cover budget deficits,' use of reserves to enable the station to invest in fundraising, marketing, programming and salary increases could 'cover [ ] overexpenditures and produce larger revenue streams in the future.' Clampitt testified that '[t]his is something that President Ladner and I did together, and he signed off on everything.'"

     -"On October 20, 2003, the Washington Post published a story about WAMU, stating that '[a]fter years of balanced budgets-even financial surplus-the nonprofit [station] has been awash in red ink, with large operating deficits in each of the last three years and an emergency cash fund that has been depleted of millions of dollars.'"

     -Neither Ladner nor the University made any effort to inform the public that the University had specifically approved Clampitt's financial and budgetary recommendations. Instead, Calmpitt was "scapegoated." On October 30, 2003, Ladner met with Clampitt to inform her that he was terminating her employment.

    -Clampitt "was told repeatedly in the weeks and months after her termination that she could not be hired anywhere else. She was radioactive. You Google her name and the first thing that pops up is Clampitt terminated by American University under cloud of financial improprieties and staff mismanagement."

Meanwhile, during his deposition on December 16, 2004, Ladner testified that he reviewed a two-page summary of questions or issues prepared by defense counsel in preparation for a pre-trial deposition. Clampitt then filed a motion to compel production of the two-page document, but the trial court denied the motion, which, inter alia, prompted Clampitt's appeal.

On Clampitt's appeal, the D.C. Court of Appeals noted that, at his deposition, in response to a question about whether he had reviewed any materials to prepare for the deposition, Ladner testified that he had reviewed a "summary of questions or issues of about two pages that counsel prepared to discuss with me."  Only after the completion of Ladner's deposition did Clampitt move to compel production of the document that Ladner described, and the University's counsel represented to the court that when he met with Ladner prior to the deposition, he (counsel) used the worksheet, a copy of which he left with Ladner, to "verify [counsel's] understanding of the facts of the case," facts "which were otherwise third-hand given to me before them." 

Clampitt's counsel had claimed, however, that seeing how Ladner's counsel had framed the issues necessarily would have influenced how Ladner framed his answers.  Nonetheless, the trial court had denied the motion to compel, reasoning that a document that a lawyer "prepared in order to interview his client" is protected by attorney-client privilege (and it seemingly could have found that the summary should have been entitled to work product protection as well).

The D.C. Court of Appeals affirmed that ruling, rejecting Clampitt's argument that she was entitled to production of the summary under Federal Rule of Evidence 612, which states in relevant part that "if a witness uses a writing to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced...." 

The problem for Clampitt was that, in his deposition questioning of Ladner, Clampitt's counsel did not elicit testimony that the two-page list of "questions or issues" refreshed Ladner's recollection; indeed, counsel asked no follow-up questions about the two-page document.  Therefore, according to the court, "Clampitt did not establish the first of the 'three foundational elements [that] must be met before Rule 612 is applicable with respect to documents reviewed by a witness to prepare for a deposition,' i.e., that 'a witness must use a writing to refresh his or her memory.'"

I agree with the court's ruling.  As I indicated before, I think that a party should be entitled to have writings produced when they are used to refresh a witness' recollection, notwithstanding the work product protection/attorney-client privilege, because otherwise the "production portion" of Rule 612 would be rendered meaningless.  That said, without a specific requirement that the document at issue be used to "refresh" the witness' recollection, a party could argue that virtually any document prepared by an attorney in connection with testimony should be produced, rendering most of the work product protection/attorney-client privilege meaningless.

-CM   

Invitation Only: Supreme Court of Texas Finds Invited Error Doctrine Doesn't Apply To Unsuccessful Attempts To Introduce Evidence

I have had three recent opportunities on this blog (here, here, and here) to address the invited error doctrine, the doctrine under which a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make.  One specific application of the invited error doctrine is that a party cannot complain that the opposing party improperly introduced evidence concerning an impermissible subject when the complaining party already introduced evidence concerning that same subject.  Thus, for instance, in the recent case of United States v. Villavicencio, 2008 WL 2894108 (11th Cir. 2008), the Eleventh Circuit found that the trial court did not err in allowing the prosecution to present evidence that two grams of cocaine were recovered from a search of the defendant's bedroom, which would otherwise have been inadmissible character evidence, because defense counsel himself broached the topic during cross-examination of a DEA agent.

But what happens when a party attempts to present evidence relating to an impermissible subject, yet the trial court and/or the opposing party doesn't take the bait?  Well, in that case, it seems clear to me that the invited error doctrine doesn't apply, and that's exactly what the Supreme Court of Texas found in its recent opinion in Reliance Steel & Aluminum Co. v. Sevcik, 2008 WL 4370683 (Tex. 2008).  In Sevcik, Michael Sevcik and Cathy Loth were injured in a highway accident west of Houston when they were hit from behind by a tractor trailer owned by Reliance Steel & Aluminum Co.  They thereafter sued, and over Reliance Steel's objection, they offered the following testimony from the deposition of Reliance's corporate representative:

     Q: How big a company is Reliance?

     A: I believe last year's annual sales approximated $1.9 billion.

     Q: About how many employees do they have? Do you know?

     A: Just guessing, I think we're close to 3,000 I think, nationwide.

     Q: And are the headquarters for Reliance in California? Is that what I-

     A: Yes, sir. They're in Los Angeles, California.

The trial court overruled Reliance's objection, instead crediting plaintiffs' counsel's argument that "we are definitely entitled to show they are not a mom and pop operation, and we are going to talk-It says they are a California corporation. Then he says they are a division. I'm entitled to bring all of that in."

The problem with this argument, according to the Texas supremes, is that "Reliance had never suggested to the jury that it was 'a mom and pop operation' or could only pay a limited judgment; the plaintiffs' effort to prove otherwise was simply an unsolicited attempt to show Reliance made a lot of money."  Thus, this evidence should not have been admissible because "highlighting the relative wealth of a defendant has a very real potential for prejudicing the jury's determination of other disputed issues in a tort case."

So, how did the invited error doctrine come into play?  Well, according to the Court, "[n]either a plaintiff's poverty nor a defendant's wealth can help a jury decide whose negligence caused an accident."  And, during trial, Reliance's attorneys asked several inappropriate questions about the size and newness of the plaintiffs' cars and home.  The Supreme Court of Texas, however, found that the doctrine didn't apply because "[e]ach time this occurred and an objection was made, the trial court sustained the objection and excluded the evidence."  According to the Court, "One party cannot violate the rules of evidence just because the other party tried to do the same, especially if the other party's evidence was excluded."

I pretty much agree with the Court's ruling and its decision to order a new trial, but I do think that this last statement is a bit of an overstatement.  If I were crafting the final line, it would have read,  "One party cannot violate the rules of evidence just because the other party tried to do the same, as long as the other party's evidence was excluded."  If the other party's evidence were not excluded, then that would indeed trigger the invited error doctrine, and the other party indeed could violate the rules of evidence with regard to the subject broached by the evidence.

-CM

Power Of The Press, Take 4: Supreme Court Of Pennsylvania Refuses To Read Crime-Fraud Exception Into Its Shield Rule/Reporter's Privilege

The first paragraph of the Supreme Court's opinion on Wednesday in Castellani v. Scranton Times, L.P., 2008 WL 4345136 (Pa. 2008), illustrates its significance.  According to the Court:

     "Pennsylvania's Shield Law, 42 Pa.C.S. Section 5942, protects a newspaper's source of information from compelled disclosure. With the present appeal, appellants urge this Court to recognize a non-textual “crime-fraud” exception to the Shield Law that would permit compelled disclosure of a newspaper's source if the communication between the newspaper reporter and the source itself constituted a criminal act. For the following reasons, we decline to adopt any such exception and affirm the Superior Court's reversal of the trial court's order compelling disclosure of the confidential source."

The facts of Castellani are long and winding, and I will simply link to the opinion for readers interested in all of the details.  For purposes of this post, however, I will simply mention that:

     -a grand jury was empaneled to investigate allegations of wrongdoing at Lackawanna County Prison;

     -appellants Randall A. Castellani and Joseph J. Corcoran, then-Lackawanna County Majority Democratic Commissioners, testified before the grand jury;

     -The Tribune and The Scranton Times published front-page stories by Jennifer Henn accusing appellants of “stonewalling” the Grand Jury;

     -appellants filed a civil complaint against The Tribune, The Scranton Times, and Henn claiming that the news articles were false and contained "defamatory statements, innuendo, and implications" and that the articles' source engaged in "tortious, criminal, or contemptuous conduct;"

     -the case eventually reached the Pennsylvania supremes, who found that "[t]he question accepted for appeal is whether the Shield Law protects media defendants in a defamation case from the court-ordered disclosure of the confidential source of an allegedly defamatory newspaper article, where the plaintiffs allege that the media defendants and the source were direct participants in the criminal disclosure of grand jury proceedings."

I'll begin where the Court began, by listing the language of 42 Pa.C.S. Section 5942, which states that:

     "(a) General rule.--No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.

     (b) Exception.--The provisions of subsection (a) insofar as they relate to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least one year from the date of the actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast."

The Court then noted that in its 1963 opinion in In re Taylor, 193 A.2d 181 (Pa. 1963),

     "an investigating grand jury was convened in Philadelphia in 1962 to investigate allegations of criminal conduct and corruption involving various offices of the Philadelphia city government. Soon thereafter, The Philadelphia Evening Bulletin published an article reporting aspects of the investigation. The president/general manager and city editor of The Bulletin were subpoenaed to appear before the Grand Jury and directed to bring with them the source information of the articles."

And in Taylor, the Court upheld the newspapermen's invocation of the Shield Law, "stat[ing] point-blank: application of the plain text of the Shield Law 'will enable newsmen to conceal or cover up crimes.'"  The Court then traced its treatment of the Shield Rule through its most recent opinion in Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003), where it reaffirmed Taylor by holding that "documents may be considered sources for Shield Law purposes, but only where production of such documents, even if redacted, could breach the confidentiality of the identity of a human source and thereby threaten the free flow of information from confidential informants to the media."

The Court thus flatly rejected the argument that there should be a crime-fraud exception to the Shield Rule, concluding that:

     "Taylor 's interpretation of the Shield Law, as described by Bowden, plainly controls the outcome of the present appeal. There is cause to look beyond the plain language of the Shield Law when interpreting, for example, the scope of the word 'source,' but the Shield Law's unambiguous text leaves little question as to whether a source's identity is protected. Our Shield Law jurisprudence has consistently recognized the statute's absolute protection of a source's identity from compelled disclosure. For that reason alone, we cannot simply engraft upon the statute an exception which would not only contradict the well-established public policy underlying the Shield Law, but, as importantly, would contravene the statute's unambiguous text. The Shield Law has been reenacted three times since it was first enacted in 1937, and twice since this Court interpreted its text in Taylor. If the General Assembly disagreed with our interpretation, or wished to establish a crime-fraud exception to the Shield Law, it could easily have done so."

Then, in maybe the most interesting part of its opinion, the Court rejected the argument for a crime-fraud exception to the Shield Rule based upon the crime-fraud exception to the attorney-client privilege, finding that its Shield Rule provides more protection than any other evidentiary privilege.  According to the Court,

     "contrary to appellants claim, we conclude that the Shield Law is not comparable to the attorney-client privilege, or, for that matter, to any other privilege with respect to the issue presented here. The attorney-client privilege, in contrast, does not encompass the same absolute protection. The foundational reason for this difference is that each privilege or protection serves its own, unique interests. The Shield Law was enacted to protect the free flow of information to the news media in their role as information providers to the general public. The attorney-client privilege, on the other hand, renders an attorney incompetent to testify as to communications made to him by his client in order to promote a free flow of information only between attorney and his or her client so that the attorney can better represent the client. See 42 Pa.C.S. 5916.

     In [Nadler v. Warner Co., 184 A.3 (Pa. 1936)], this Court recognized a crime-fraud exception to the attorney-client privilege to prevent a client from abusing the privilege in furtherance of a crime or fraud. No such purpose would be served by recognizing a similar exception to the Shield Law. Whereas the attorney-client privilege is for the benefit of the client, as privilege holder, the protections recognized in the Shield Law are intended to allow the news media to serve the public. Indeed, describing the Shield Laws protections in common evidentiary privilege terms, while the news media may be the holder of the protection, the general public is deemed to be the overall beneficiary of the Shield Law protections."

This is certainly an interesting ruling, and, at least according to the appellants, one that goes against how most states have interpreted their reporter's privileges.  According to the appellants,

     "a majority of [Pennsylvania's] sister states have authorized exactly what appellants urge-judicially compelled production of a reporter's source where the communication was criminal or fraudulent. Appellants contend that only ten states seem to have an absolute statutory reporter's privilege, while thirty-six states permit compelled disclosure of a defamatory news article's confidential sources, even in the absence of evidence of crime or fraud. Further, appellants assert that no court in an 'absolute' shield law state has held that its shield law protects a reporter from disclosing the source of a communication when the requesting party has made a prima facie showing that the communication was itself criminal or false."

The Pennsylvania Supreme Court acknowledged this argument, but ultimately rejected it, finding that

     "While non-binding federal law and the law of our sister states is often informative, due to our Shield Laws absolute protection of a sources identity, the manner in which other jurisdictions have dealt with similar situations is of minimal value to the present appeal. In the cases referenced by appellants, the federal courts and courts in our sister states were interpreting their own, unique shield laws, or, as in [In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005)], the qualified reporters privilege. In resolving the present controversy, we have only the plain text of Pennsylvania's Shield Law. Moreover, even if case law from other jurisdictions were more directly relevant, appellants have not offered any authority demonstrating that a court in an absolute protection jurisdiction has ever recognized a non-textual crime-fraud exception to its shield law." 

-CM

Power Of The Press, Take 3: Panel Held On Utah's New Reporter's Privilege

Previously on this blog, I posted a couple of entries (here and here) about the newly enacted Utah Rule of Evidence 509, it's reporter's privilege.  As I noted in the second post, with the creation of Rule 509 Utah "completed its transformation from one of only three states without some form of a reporter's privilege to a state with one of the strongest such privileges in the country.  Well, in my news reading this morning, I came across this link to a panel discussing Utah's new reporter's privilege moderated by Ed Carter of BYU, which I thought might interest readers.

-CM

Not Feeling Minnesota: Court Of Appeals Of Minnesota Makes Nonsensical Rule 609(b) Rulings In Criminal Sexual Conduct Case

In my mind, the recent opinion of the Court of Appeals of Minnesota in State v. Weiss, 2008 WL 4299619 (Minn.App. 2008), contains a nonsensical felony impeachment ruling.  In Weiss, a jury found Scott Edward Weiss guilty of criminal sexual conduct and kidnapping based on evidence that he sexually assaulted two teenagers in the cab of his pickup truck on a dark, isolated, rural road.  The record in Weiss revealed that Weiss has five prior felony convictions, with the state seeking to impeach him through four of these convictions in the event that he chose to testify: his convictions for third-degree criminal sexual conduct in 1995, first-degree criminal sexual conduct in 1988, second-degree criminal sexual conduct in 1981, and wrongfully obtaining public assistance by means of "false statements and representations or other fraudulent means" in 1996.

Before trial, the district court ruled that "if the defendant elects to take the witness stand that the prior felony convictions, at least on the two criminal sexual conduct charges will be allowed for impeachment purposes."  Upon reading this passage, I raised the red flag, knowing that when considering whether to admit a prior conviction for impeachment purposes, i.e., for purposes of showing that the witness' trial testimony cannot be trusted, the main probative value courts should consider is how much bearing the prior conviction has on the witness' (dis)honesty, and the main prejudicial effect courts should consider is the danger that the jury will misuse the conviction as propensity character evidence.  Ostensibly a conviction for wrongfully obtaining public assistance by means of "false statements and representations or other fraudulent means" has high probative value on the issue of a witness' honesty while a defendant's prior convictions for criminal sexual conduct in his trial for criminal sexual conduct have high prejudicial effect because of the danger that jurors will misuse the convictions as propensity character evidence and conclude, "Once a rapist, always a rapist."

Apparently, this passage also raised a red flag with the Minnesota Court of Appeals, which correctly noted that "[t]he district court did not specify which two of the four convictions could be introduced."  As the Court of Appeals also correctly noted, the district court compounded the problem when Weiss raised the issue again at trial, and the district court judge ruled that "if Weiss testified, the jury would be informed 'of his prior felony record,' which suggest[ed] that the district court would have permitted the state to introduce all four prior convictions."

Based upon this ruling, Weiss did not testify, he was convicted, and he appealed, claiming that the district court erred in deeming these convictions admissible in the event that he chose to testify.  The Court of Appeals rejected this argument, finding that the district judge did nor err in deeming any of these convictions admissible.  I'm not sure that I agree with any of these rulings, but I will only focus on the rulings finding that the district court judge properly approved impeachment of Weiss through his 1981 and 1988 convictions for criminal sexual conduct.

Because both of these convictions were more than 10 years old, the Court of Appeals had to decide whether they were admissible under Minnesota Rule of Evidence 609(b), which states in relevant part that:

     "[e]vidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect."

In other words, the court had to ask whether the probative value of the prior criminal sexual conduct convictions for proving that Weiss could not be trusted as a witness substantially outweighed their prejudicial effect, i.e., the danger that jurors would misuse the convictions as propensity character evidence and conclude, "Once a rapist, always a rapist."  The Court of Appeals noted that in making this determination, Minnesota courts weigh five factors (even though the district court did not weigh them):

     "(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant's subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant's testimony, and (5) the centrality of the credibility issue."

The court correctly noted that factors 4 and 5 often counterbalance and that they counterbalanced in this case, leaving factors one through three.  With regard to the first factor, the Court of Appeals noted that the Supreme Court of Minnesota "repeatedly has held that evidence of any prior felony conviction, including convictions for crimes that do not involve dishonesty, generally has impeachment value because 'it allows the jury to see the whole person and thus to judge better the truth of [the witness's] testimony.'"  The court thus found that this factor weighed somewhat in favor of admission of the convictions.

Simply put, the court was wrong, unless it was saying that factor 1 favors admission of any felony conviction, which, of course, would also be wrong.  Instead, sex offenses and prostitution are "thought to have little if any bearing on veracity," making them "more likely to be precluded" under Rule 609 based upon their low probative value. Peter Nicholas, "They Say He's Gay":  The Admissibility of Sexual Orientation, 37 Ga. L. Rev. 793, 830 (2003).

Under factor two, the court found that the 1981 and 1988 convictions were old, decreasing their probative value, but that Weiss had subsequent, continuing conflicts with the law, increasing their probative value and indicating that he was not rehabilitated.  Based upon these considerations, the Court of Appeals found that factor two weighed somewhat in favor of admission, and while I might quibble and say that the factor was neutral at best (after all, these were Reagan-era convictions), I don't have a huge objection to this conclusion.

The same can't be said under factor three, where the court noted the similarity between the prior convictions for criminal sexual conduct and the present charge of criminal sexual conduct and concluded that factor three "weigh[ed] somewhat against admitting them for impeachment purposes."  I strongly disagree with this conclusion.  Such a conclusion might be appropriate in, say, a murder case in which the defendant has a prior conviction for assault, and the court determines that the past crime and the charged crime are both crimes of violence but that they are also different in degree and type.  Conversely, in Weiss, Weiss' past crimes and the charged crime were both for criminal sexual conduct, raising a strong probability that the jurors would misuse the convictions as propensity character evidence, and making factor three weigh strongly against admission.

Nonetheless, even if we are sticking with the Court of Appeals' conclusions, it found that two factors weighed somewhat against admission while three factors weighed somewhat in favor of admission.  I don't see how that supports a finding that the probative value of the convictions substantially outweighed their prejudicial effect, especially in light of the fact that the Advisory Committee Note to the federal counterpart to Minnesota Rule of Evidence 609(b) indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances."  And when we consider the invalidity of the Court of Appeals' conclusions, it decision to admit Weiss' prior criminal sexual conduct convictions in the event that he chose to testify becomes even more nonsensical.

-CM   

Burn Notice: Ohio Judge Excludes Evidence Of Prior Arson In Trial Covering The Largest Mass Murder In Youngstown's History

A judge has precluded the prosecution from introducing evidence relating to an earlier arson allegedly committed by a defendant in his trial for setting a house fire that killed 6 people.  Michael A. Davis will soon stand trial on a 29-count aggravated murder and aggravated arson indictment with death penalty specifications.  Those counts are based upon Davis allegedly setting a Youngstown, Ohio house on fire, which took the lives of Carol Crawford, 46; her daughter, Jennifer R. Crawford, 23; and Jennifer’s four children, Ranaisha, 8; Jeannine, 5; Aleisha, 3; and Brandon, 2.  Five other people were also in the house, but escaped with their lives.  Authorities are calling the "blaze the largest mass murder in the city's history."  They also claim that the January 23rd fire was not the first one ignited by Davis.

Instead, assistant county prosecutor Natasha K. Frenchko claimed that Davis lit a fire on January 1st that shared some similarities with the January 23rd travesty.  Specifically, according to the prosecution, at 11:00 p.m. on December 31, 2007, three individuals attacked a man with stones and hit him on the head when he opened his side door to investigate noises outside. The trio then ran away, and the victim went to a hospital.  After returning home and lying down, the victim heard breaking glass in front of his house, looked outside and reported he saw the same trio dousing and igniting a liquid in front of his house.  When he tried to extinguish the fire, the trio threw burning objects at him, forcing him to flee his home at 4:00 a.m.  The victim thereafter identified Davis as one of his attackers, prompting prosecutors to move to introduce evidence of the January 1st fire as evidence against Davis.

And the prosecution's argument was that evidence of this earlier fire was admissible to prove common plan or scheme of modus operandi under Ohio Rule of Evidence 404(b).  You see, prosecutors claimed that, in both fires, Davis sat up until the early morning hours, watching the nearby targeted houses and waiting for an opportunity to pour ignitable liquid on their front porches and start the fires.  Judge R. Scott Krichbaum of the Mahoning County Common Pleas Court, however, rejected this argument and found that evidence of the January 1st fire was inadmissible because "This is evidence that is so outrageously prejudicial to a criminal defendant. And the problem with that is it is unproved misconduct" introduced "at the 11th hour."

I have a couple of points to make in response to this ruling.  The first is that I thought that based upon the "11th hour" comment that the prosecution had failed to give sufficient pretrial notice of its intention to use the evidence of the prior fire.  You see, in cases governed by the Federal Rules of Evidence, "the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial" under Federal Rule of Evidence 404(b).  My review of Ohio Rule of Evidence 404(b), however, reveals that it contains no such notice provision, and my review of Ohio case law reveals that Ohio courts have not imposed such a notice requirement. See, e.g., State v. Yeager, 2005 WL 2292815 (Ohio.App. 9 Dist. 2005) ("However, this Court has held that Evid.R. 404(B) does not require advance notice of such evidence."

Next, I knew that the judge's claim that "the problem with that is it is unproven conduct" was a nonstarter.  Since, the Supreme Court's opinion in Huddleston v. United States, 485 U.S. 681 (1988), courts have consistently held that establishing that a prior crime, wrong, or act occurred is a matter of conditional relevance under Federal Rule of Evidence 104(b) and state counterparts.  In other words, as long as evidence of the former fire could navigate the probative value/prejudicial effect tightrope, Judge Krichbaum should have admitted it as long as he determined that a reasonable juror could have found the conditional fact -- that Davis participated in setting the former fire -- by a preponderance of the evidence.  The Rule 104(b) standard is a fairly easy one to satisfy, and I have little doubt that the victim's identification of Davis would have satisfied it.

That leaves the first part of Judge Krichbaum's statement, where he claimed that evidence of the former fire was outrageously prejudicial.  And in that regard, the judge was likely correct, and I certainly don't have enough facts before me to second guess his judgment.  Basically, even if other crime, wrong, or act evidence is relevant for proving a permissible purpose, it should still be excluded if its probative value is outweighed by the danger of unfair prejudice. See, e.g., State v. Haines, 860 N.E.2d 91, 97 (Ohio 2006).  In other words, Judge Krichbaum was correct in excluding the evidence if its probative value for establishing common plan or scheme was outweighed by the danger that the jury would use the evidence to conclude, "Once a murderous arsonist, always a murderous arsonist."  And based upon the fact that there were only two fires at issue, I think that the probative value of the former fire was somewhat slight while the danger of unfair prejudice was extreme.

-CM 

Safe Harbor Redux: President Bush Signs Federal Rule Of Evidence 502 Into Law

In what I would regard as the most lawyer (and client) friendly federal rule change since the "safe harbor" provision was added to Federal Rule of Civil Procedure 11, President Bush recently signed into law Federal Rule of Evidence 502, which is entitled, "Attorney-Client Privilege and Work Product:  Limitations on Waiver."  The Rule makes it so that disclosures, whether intentional or inadvertent, which previously led to partial or complete waiver of the attorney-client privilege and work produce protection (at least in certain courts), no longer do so.

According to the new Rule,

The following provisions apply, in the circumstances set out, to disclosure of a communication or information covered by the attorney-client privilege or work-product protection.

1. Disclosure Made in a Federal Proceeding or to a Federal Office or Agency; Scope of a Waiver- When the disclosure is made in a Federal proceeding or to a Federal office or agency and waives the attorney-client privilege or work-product protection, the waiver extends to an undisclosed communication or information in a Federal or State proceeding only if:
   
   1. the waiver is intentional;
   2. the disclosed and undisclosed communications or information concern the same subject matter; and
   3. they ought in fairness to be considered together.
2. Inadvertent Disclosure- When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:
   
   1. the disclosure is inadvertent;
   2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and
   3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).
3. Disclosure Made in a State Proceeding- When the disclosure is made in a State proceeding and is not the subject of a State-court order concerning waiver, the disclosure does not operate as a waiver in a Federal proceeding if the disclosure:
   
   1. would not be a waiver under this rule if it had been made in a Federal proceeding; or
   2. is not a waiver under the law of the State where the disclosure occurred.
4. Controlling Effect of a Court Order- A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court--in which event the disclosure is also not a waiver in any other Federal or State proceeding.
5. Controlling Effect of a Party Agreement- An agreement on the effect of disclosure in a Federal proceeding is binding only on the parties to the agreement, unless it is incorporated into a court order.
6. Controlling Effect of This Rule- Notwithstanding Rules 101 and 1101, this rule applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings, in the circumstances set out in the rule. And notwithstanding Rule 501, this rule applies even if State law provides the rule of decision.
7. Definitions- In this rule:
   1. "attorney-client privilege" means the protection that applicable law provides for confidential attorney-client communications; and
   2. "work-product protection" means the protection that applicable law provides for tangible material (or its intangible equivalent) prepared in anticipation of litigation or for trial."

So, what was the reason for this new Rule?  Well,

     "[t]he Judicial Conference concluded that the current law on waivers of privilege and work product is largely responsible for the rising costs of discovery, especially discovery of electronic information.  The reason is that if a protected document is produced, there is a risk that a court will find a subject matter waiver that will apply not only to the instant case and document but to other cases and documents as well.  The fear of waiver also leads to extravagant claims of privilege."

So, how will the new Rule result in cost savings and predictability for parties?  Well, as the Federal Evidence Review has nicely summarized,

There are seven key provisions under the new rule:

1. Subsection (a): Limits waiver of the privilege normally to the communication or materials disclosed, and not to the entire subject matter of the communication. The scope of any waiver is therefore confined to the information disclosed unless “fairness” requires further disclosure.
2. Subsection (b): Clarifies that inadvertent disclosure does not result in waiver when the holder of the privilege “took reasonable steps to prevent disclosure” and “promptly took reasonable steps to rectify the error.”
3. Subsection (c): Addresses the circumstances when disclosure was first made in a state proceeding and is later considered in a federal proceeding. The provision applies the federal or state law that furnishes the greatest protection to the privilege and work product.
4. Subsection (d): Recognizes that a confidentiality order may provide “that the privilege or protection is not waived by disclosure connected with the litigation pending before the court.”
5. Subsection (e): Allows parties to enter into an agreement to limit the effect of any disclosure. The agreement is only binding on the parties unless the agreement is included in a court order.
6. Subsection (f): Notes that the rule “applies to State proceedings and to Federal court-annexed and Federal court-mandated arbitration proceedings” and “even if State law provides the rule of decision.”
7. Subsection (g): Includes definitions for “attorney-client privilege” and “work-product protection.”

More specifically, according to Congresswoman Sheila Jackson-Lee, in her statement in the Congressional Record,

     "The new rule protects the confidentiality of privileged information against waiver in several ways.  It protects information inadvertently disclosed in discovery, as long as the party has taken reasonable efforts to avoid disclosing privileged information and, upon learning of disclosure, promptly takes reasonable steps to rectify it.

     It protects against a waiver extending to other, undisclosed documents except where privileged information is being intentionally used to mislead the fact finder to the disadvantage of the other party, so that fairness requires that other information regarding the same subject matter be available.

     And it authorizes courts to enter orders enforceable in all jurisdictions permitting parties to make initial discovery exchanges efficiently without waiving the right to appropriately assert privilege later for documents culled for actual use as evidence.

     This is sort of a back-up protection.  This is your guarantee.  This is an assistance to the idea of protecting privilege.  This is extremely important, in that vast majority of documents exchanged in discovery, in some cases running to millions of pages, ultimately prove to be of no interest."

Just as important as what the new Rule is about is what the new Rule is not about.  As Jackson-Lee noted,

     "Importantly, the rule does not alter the law regarding when the attorney-client privilege or work product protection applies in the first instance. [Instead,] [i]t is narrowly targeted to address the question of when the specified kinds of litigation-related disclosures do or do not operate as a waiver of the privilege that would otherwise apply."

Also, as noted by the Federal Evidence Review, the new Rule does not contain a selective waiver provision, which was requested by the Judicial Conference, but which was ostensibly too controversial to find its way into the completed Rule.  I direct readers to In re Qwest Communications International, Inc. v. Securities Litigation, 450 F.3d 1179 (10th Cir. 2006), for an interesting discussion about the circuit split surrounding the issue of selective disclosures.

(Hat tip to Joe Hodnicki of the Law Librarian Blog)

-CM

Against All Odds: Arkansas Court To Decide Admissibility Of Alleged Statements Against Interest In Double Homicide Case

According to an article last week, 20 year-old Jesse Lee Westeen of Fayetteville, Arkansas, who is charged as an accomplice to murder, wants a judge to allow hearsay evidence at his trial starting today  because two defense witnesses are unavailable.  Specifically, the prosecution alleges that Westeen was an accomplice to capital murder in the shooting deaths of Kevin Jones and Kendall Rice.  More specifically, the prosecution claims that Westeen drove Gregory Decay to an apartment belonging to Jones and Rice on April 3, 2007, when Decay fatally shot them both in the face.  In April, Decay was convicted on two counts of capital murder and sentenced to the death penalty on both counts. 

So, what are the hearsay statements that Westeen wants to introduce?  According to the article, they are statements made to Fayetteville police by Decay and another man named Vlydraus Dupree.  Unfortunately, the article doesn't make clear the substance of those statements or the identity of Mr. Dupree, but I'd be willing to bet dollars to doughnuts that they are purported statements against interest which will incriminate Decay and Dupree and exonerate Westeen.

And indeed, the article notes that the statements of Decay and Dupree to police will not be admissible unless they are declared "unavailable" at Westeen's trial, a prerequisite for application of the statement against interest exception to the rule against hearsay.  You see, for the statement against interest exception to apply, the court must first find the declarant "unavailable" under Arkansas Rule of Evidence 804(a).  So, how is Westeen likely to fair under this Rule?

Well, he claims that Decay, whose case is on appeal, refuses to testify, citing his Fifth Amendment right against self-incrimination, while Dupree cannot be found.  Assuming that the motion is accurate, both witnesses should be declared "unavailable," Decay because he will likely "be exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement" under Arkansas Rule of Evidence 804(a)(1), and Dupree because he will likely be absent from the trial, with Westeen "unable to procure his attendance" under Arkansas Rule of Evidence 804(a)(5).

Having disposed with the "unavailability" requirement, the question becomes whether the statements of Decay and Dupree satisfy the requirements of the statement against interest exception.  That exception, contained in Arkansas Rule of Evidence 804(b)(3), allows, as an exception to the rule against hearsay, for the admission of:

     "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 him to civil or criminal liability or to render invalid a claim by him against another or to make him an object of hatred, ridicule, or disgrace, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offering to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement."

Now, as I noted, the article on the case doesn't reveal the substance of the statements by Decay and Dupree, but let's assume that they were indeed sufficiently against their interests.  That would leave the difficult question of whether there were sufficient "corroborating circumstances."  As I have noted before, courts have used a variety of tests in deciding whether there are sufficient "corroborating circumstances," with my preferred test being the Fourth Circuit's five factor test.  So, what's the law of the land in Arkansas?   

Well, unfortunately, Arkansas law is pretty vague.  It tells us that in determining whether there were sufficient "corroborating circumstances," "[t]he totality of circumstances and the conditions from which the statement arose should be considered," but it doesn't tell us much else. Luster v. State, 1997 WL 225083 (Ark.App. 1997).  All we really know is that if the proponent of a statement against interest claims that there were sufficient "corroborating circumstances" based upon the argument that "the proof was in the pudding," an Arkansas court will likely reject his argument. Wallace v. State, 2004 WL 1059787 (Ark.App. 2004).

-CM

What A Difference A Month Makes: 1st Circuit Finds That Trial Court Properly Excluded Prosecution Witness' Felony Conviction

The recent opinion of the First Circuit in United States v. Nguyen, 2008 WL 4277309 (1st Cir. 2008), displays the strikingly different balancing tests that are used when a criminal defendant seeks to impeach a witness for the prosecution via a felony conviction that is more or less than ten years old.  According to the court, Nguyen involved a tale that was "tawdry, but quickly told."  And, according to that tale,

     Tommy Nguyen co-managed a nail salon in West Warwick, Rhode Island and placed wagers totaling $12,000 on several basketball games. The total amount wagered was lost. Hot on the heels of this debacle, Tommy received a telephone call from Van Anh. Anh informed him that the time had come to pay the piper. Minutes later, Anh appeared at the nail salon along with two other men, who demanded the money. Tommy sparred for time, and Anh agreed that he could pay the debt in installments.  After Tommy had paid $6,800, he thought that the matter was settled, but Anh insisted upon payment of the $5,200 balance. When Tommy demurred, Anh stated that he knew where Tommy worked and that Tommy could not "run."  Anh then announced that he would send someone to collect what was owed. 

     A few days later, Tommy stepped out of his nail salon to smoke a cigarette, and three men were lurking nearby:  Thinh Cao,  Khong Nguyen, and Khong's brother, Quoc Nguyen.  The men made it plain that they had come to collect the balance of the indebtedness, and Tommy replied that he already had paid what he owed and retreated inside the nail salon.  When Tommy left the shop about half an hour later, the three collectors surrounded him and threatened that if he did not pay they would "take care" of him. Tommy then called Anh on a cell phone, but Anh remained adamant; he warned that Tommy had better square the account.   When Tommy again refused, the three men knocked him to the ground and kicked and pummeled him.  Tommy was eventually able to escape, and the assailants fled, but they were subsequently apprehended and identified by the victim and eyewitnesses.

In one trial, Van Anh, Thinh Cao, and Khong Nguyen were convicted of conspiring to collect a gambling debt from Tommy Nguyen and beating him to facilitate the debt collection.  In another trial, Quoc Nguyen was acquitted of the former charge but convicted of the latter charge.  Apparently, the jury split the baby, giving some credit to Quoc's trial testimony that he didn't know about the gambling debt and that he had no involvement in the altercation beyond pushed Tommy in an effort to keep his balance after fisticuffs had begun, and giving some credit to Quoc's earlier confession to the crime and Tommy' testimony implicating Quoc in the attack.

On appeal, Quoc claimed that the jury should have been able to hear a piece of evidence that would have given them reason to discredit Tommy's testimony:  his May 23, 1996 felony conviction for entering any automobile or other motor vehicle with the intent to commit a theft or a felony, which did not result in Tommy being incarcerated.  And if Quoc's trial had started on May 23, 2006 or earlier, he likely would have had a terrific argument.  Under Federal Rule of Evidence 609(a)(1), "evidence that a witness other than an accused has [a felony conviction] shall be admitted, subject to Rule 403."  In turn, Rule 403 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."

Under this test, convictions of witnesses for the prosecution are typically admissible for impeachment purposes.  Indeed, the Advisory Committee's Note to the 1990 amendment to Federal Rule of Evidence 609 states that "trial courts will be skeptical when the government objects to impeachment of its witnesses with prior convictions. Only when the government is able to point to a real danger of prejudice that is sufficient to outweigh substantially the probative value of the conviction for impeachment purposes will the conviction be excluded."

Quoc's problem was that his trial did not start until June 14, 2006, slightly more than ten years after Tommy's conviction.  And, according to Federal Rule of Evidence 609(b),

     "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."

In other words, Rule 609(b) flips the Rule 403 balancing test and makes it extremely unlikely that older convictions will be admissible for impeachment purposes.  Indeed the Advisory Committee's Note to the Rule indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances."  And, according to the First Circuit, the problem for Quon was that he "did not identify any specific facts or circumstances showing that the probative value of Tommy's earlier conviction overbalanced its unfairly prejudicial effect."  If Quon's trial were a month earlier or if Tommy' conviction were a month later, it seems clear that the result would have been different.   

-CM

The Parting Of The Ways: 8th Circuit Makes Seemingly Erroneous Prior Consistent Statement Ruling In Drug Murder Case

The Eighth Circuit's recent opinion in United States v. Hoover, 2008 WL 4273910 (8th Cir. 2008), contains what I regard to be an incorrect prior consistent statement ruling.  In Hoover, Jeffrey Hoover appealed from his conviction on two counts of using a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. Section 924(c)(1), resulting in the deaths of Harold Fowler and Duane Johnson in 1997.  While investigating those murders in 2005, police interviewed Benjamin Waldbaum and B.J. Kempton.  At the time, neither revealed that they had any personal knowledge of the facts surrounding the deaths.  Subsequently, however, authorities learned that Waldbaum had been talking about witnessing a homicide.  Both Waldbaum and Kempton thereafter cooperated with police and testified at trial that they saw Hoover kill Fowler and Johnson in an apartment after a drug deal gone wrong.

Defense counsel thereafter impeached their testimony under Federal Rule of Evidence 613 through their prior inconsistent statements to police in which neither revealed that they had any personal knowledge of the facts surrounding the deaths.  After this impeachment, the prosecution sought to introduce alleged prior consistent statements made by Waldbaum and Kempton prior to their police interrogations.  Specifically, the prosecution wanted to present evidence that Waldbaum and Kempton told their girlfriendsbefore they talked to police that they were present at a drug rip-off killing and that the shooter was Hoover.

The prosecution sought to admit these statements for both rehabilitation and substantive purposes under Federal Rule of Evidence 801(d)(1)(B), which indicates that "[a] statement is not hearsay 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."  Hoover countered that that Kempton's and Waldbaum's admitted presence in the apartment gave each an immediate motive to lie, meaning that their statements were not admissible under Federal Rule of Evidence 801(d)(1)(B) because they were not made before the motive arose.    

The district court admitted the statements with a limiting instruction informing jurors that they were solely to be considered for rehabilitative purposes, Hoover was convicted, and he appealed.  On appeal, the Eighth Circuit noted that "[t]he district court made no determination about when a motive to lie arose for Waldbaum or Kempton."  Nonetheless, it found that it did not need to "determine whether Waldbaum's and Kempton's statements that are the subject of Hoover's challenge were made before either man had a motive to fabricate."  According to the court, the two witness' prior statements had the purpose of demonstrating that there was no real inconsistency between their earlier story and their trial testimony.  And the court found that "[i]n this circumstance, prior consistent statements may be admitted for rehabilitative purposes even if they are not admissible as substantive evidence under Rule 801(d)(1)(B)."

This conclusion immediately struck me as incorrect, so I did some research to determine when the Eighth Circuit first made such a conclusion.  It turns out that it first did so in United States v. Andrade, 788 F.2d 521 (8th Cir. 1986).  In Andrade, the defendant was interrogated by several FBI agents, and FBI Agent Brown rendered testimony concerning the interrogation that was consistent with three pages of handwritten notes he had taken during the interview.  Defense counsel then sought to discredit Brown's testimony through rigorous interrogation of other FBI agents concerning their somewhat different recollections of the interrogation and possible errors in the reports concerning that interrogation.  Afterwards, the trial court allowed the prosecution to introduce Agent Brown's notes, finding that this rehabilitative use of prior consistent statements is in accord with the principle of completeness promoted by Rule 106."

The Eighth Circuit then cited Andrade in United States v. Kenyon, 397 F.3d 1071, 1081 (8th Cir. 2005) for the proposition that "'rehabilitative use of prior consistent statements is in accord with the principle of completeness promoted by Rule 106.'"  And then, in Hoover, the Eighth Circuit cited to Kenyon for the questionable conclusion I mentioned above, with the court now omitting any reference to Rule 106.  By considering Federal Rule of Evidence 106, we can see where the Eighth Circuit erred in Hoover.  Under Federal Rule of Evidence 106, the so-called "rule of completeness,"

"When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."

Looking at this language, we can see the Eighth Circuit's reasoning in Andrade.  In that case, defense counsel elicited a lot of testimony about the interrogation of the defendant and reports prepared based upon that interrogation.  Thus, a significant part of that interrogation was before the jury, and the court found that Agent Brown's notes were another part of that interrogation which, in fairness, should have been considered contemporaneously by the jury.

In contrast, in Hoover, defense counsel had not introduced part of the police interrogation of Waldbaum and Kempton, with the prosecution trying to introduce another part of that interrogation.  Instead, the prosecution was trying to introduce evidence of entirely separate conversations that Waldbaum and Kempton had with their girlfriends.  There was thus no argument that Rule 106 considerations applied, which is why the Eighth Circuit's ruling was clearly erroneous.      

-CM

Rape Shield Redux: Pennsylvania Judge Addresses Novel Question In Rape Shield Case

In an upcoming case in Pennsylvania, the defendant has raised one oft repeated argument that never finds success under the rape shield rule and one unique argument that I have never seen raised before.  Gregory L. Mikesell faces charges of rape of an unconscious victim, involuntary deviate sexual intercourse with an unconscious person, and indecent assault and sexual assault.  Those charges stem from acts he committed against a female friend after a night of Halloween partying. 

According to the female friend,

After a night of partying, she went to the home of Miskell's friend and woke up sometime during the night to find Mikesell taking off her underwear and trying to perform oral sex on her. She called out, "Greg, what are you doing?" and told him to stop.  After going back to sleep, she later awoke again and saw Mikesell taking off his pants and underwear. When he thereafter began having sexual intercourse with her, she said "Greg, no, no, no," and pushed him off of her.  Subsequently, she went downstairs to call police, but that the call was cut off before she could make a report.

Mikesell tells a different version of the events of that night.  According to him, the friend and he had begun to "get physical," but the friend at some point become upset and ran from the room.  He said he did not know why she had become upset.

In order to try to prove his version of events and that he thought that the friend was consenting to intercourse, Mikesell asked the court to deem two types of evidence admissible.  The first type of evidence was evidence relating to a phone call between the alleged victim and a fiancee.  Defense counsel indicated that the alleged victim was acting flirtatiously toward the woman's fiance and that she told the fiancee that her fiance "would not be coming home that evening."  Indeed, defense counsel alleged that the call was so devastating for the fiancee that the fiancee attempted suicide "in light of the call from the (woman) and the comments made."  According to defense counsel, evidence of the phone call was necessary to show what Mikesell thought about the woman's "flirtatious nature that evening."

Now, if Mikesell were simply using evidence of the phone call to prove that the alleged victim likely consented to the sexual act at issue, it would be inadmissible under Pennsylvania's Rape Shield Rule, which states that "[e]vidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence."

Mikesell, however, was attempting to use the oft attempted end around of claiming that he was using evidence of the phone call, not to prove consent, but to prove that he thought that the alleged victim was consenting.  And just as Mikesell's argument has been oft raised, it has been oft rejected.  Indeed, a military court was presented with similar facts in United States v. Knox, 1992 WL 97157 (U.S.A.F.Ct.Mil.Rev. 1992), where the defendant tried to use evidence of the alleged victim's promiscuity to prove that "he thought [the complainant] was awake and by her actions was consenting to his advances."  The court, like all other courts of which I am aware, found that there was no merit to the argument because the defendant was, in essence, trying to use the evidence to prove the same purpose proscribed by the rape shield rule.   

The second type of evidence was evidence relating to the platonic relationship between Mikesell and the alleged victim, including evidence that the pair had slept together without having sex prior to the October incident.  According to Mikesell, evidence that the two slept together, even though they did not "sleep together,"  would show the "progress" in the relationship that led to what he said was consensual sex.

Now, if Mikesell were claiming that he had prior sexual relations with the alleged victim, his argument would not be novel, and the evidence would be admissible under the exception listed in the previously cited Pennsylvania's Rape Shield Rule.  But Mikesell wanted to introduce evidence of a non-sexual act to prove that his platonic relationship with the alleged victim was progressing, leading to the culminating sexual act, which was, according to him, consensual.  Because this evidence involved a non-sexual act, it wasn't covered by Pennsylvania's Rape Shield Rule, and the judge found that it would be admissible at trial and that it would be up to a jury to decide whether it added up to a form of consent. "Some guys may consider that to be a green light. I don't know," the judge said. "But isn't that for a jury to determine?"

With due respect to the judge, I'm not sure that it is.  I suppose that the evidence might have some probative value for proving consent (or the defendant's belief that the alleged victim was consenting), but it seems to me that any probative value would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, making it inadmissible under Pennsylvania Rule of Evidence 403.  What do readers think?

-CM

It's My Space. That's Why They Call It MySpace, Take 3: North Carolina Court Makes Erroneous MySpace Ruling In Rape Shield Case

I've already had the opportunity to address two opinions dealing with an issue that I think might divide courts in the near future:  Is evidence from a person's MySpace page admissible?  In both of those opinions, the courts found the MySpace evidence to be inadmissible, with one finding that it constituted inadmissible hearsay and the other concluding that it violated Michigan Rule of Evidence 403. 

Well, on Tuesday, in In re K.W., 2008 WL 4201072 (N.C.App. 2008), the Court of Appeals of North Carolina became, as far as I am aware, the first court to find that MySpace evidence should have been admissible at trial, although I disagree with its conclusion on different grounds. In K.W., K.W., a 13 year-old minor, notified her school counselor that she was being raped by her father, A.W. The counselor thereafter called the police, and K.W. provided a statement in which she accused her father of raping her multiple times.  Mecklenburg County Youth and Family Services ("YFS") then became involved with the case and convinced A.W. to signed a Safety Assessment Plan, under which he agreed to cease all contact with his daughter.

K.W., however, stated that her father moved back into the family home approximately one week after the rape allegation, which was a violation of the Safety Assessment Plan.  K.W. was subsequently examined by a physician, who found that K.W. had a hymeneal transection and that her physical condition was consistent with child sexual abuse.  Consequently, YFS filed a Juvenile Petition alleging K.W. to be an abused, neglected, and dependent juvenile and obtained an immediate Non-Secure Custody Order.  Then, after a hearing, the trial court entered an Adjudicatory and Disposition Hearing Order, adjudicating K.W. abused, neglected, and dependent, prompting A.W.'s appeal

As part of his appeal, A.W. claimed, inter alia, that the trial court erred by precluding him from presenting evidence from K.W.'s MySpace page.  According to the court,

     The Myspace page contain[ed] suggestive photos of K.W. to which she caption[ed], "'[I] may not be a virgin but I still gotta innocent face.'  "Also, she answer[ed] in the affirmative to the question "'had sex?'  "During the in-camera questioning, K.W. testified that the website was hers, but that her friend filled in the answers.

A.W. claimed that this evidence was admissible for two purposes.  The first purpose was to establish that someone else could have caused the hymeneal transection found by the examining physician.  And, indeed, if this evidence established that K.W. engaged in other sexual acts at or around the same time as the alleged sexual abuse by her father, it could have been admissible under North Carolina Rule of Evidence 412(b)(2).  This Rule, an exception to North Carolina's rape shield rule, allows for the admission of evidence of the sexual behavior of a complainant if it "[i]s evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant."  The problem for A.W., however, was that the MySpace page made no reference to any specific instances of sexual behavior by K.W., let alone when they occurred.

The second purpose was to impeach A.W.'s testimony.  You see, K.W. testified that she was a virgin before her father raped her and that, during the time her father was raping her, she did not have any boyfriends with whom she was intimate nor had she ever been on a date.  The court rejected A.W.'s explanation that her friend filled in the answers on her MySpace page and found that the trial court should have deemed the page admissible to impeach her contradictory trial testimony.  In so concluding, it relied upon a North Carolina case which pre-dated its rape shield rule and which allowed for the admission of an alleged rape victim's statements which contradicted her trial testimony. See State v. Younger, 295 S.E.2d 453, 456 (N.C. 1982).  Nonetheless, the court found that the error was harmless and affirmed the trial court's ruling.

I disagree with the court's ruling, and I think that it erred by relying upon a pre-rape shield rule case.  North Carolina's rape shield rule contains four exceptions, none of which allow for the admission of prior sexual behavior of an alleged victim for impeachment purposes.  Instead, the exceptions allow for evidence of prior sexual behavior of an alleged victim when it is: 

     (1) evidence of sexual behavior between the complainant and the defendant; or

     (2) evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant; or

     (3) evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or

     (4) evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.

Indeed, the Court of Appeals of North Carolina merely needed to look at its prior opinion in State v. Dorton to have seen that its ruling was erroneous.  There, the court noted that:

     " defendant contends the trial court improperly denied him the right to inquire into the victim's previous sexual activity for the purpose of attacking her credibility as a witness....In the instant case, defendant neither cites to nor argues the substance of any of the four exceptions. Rather, defendant asserts he 'simply wanted to attack [the victim's] credibility as a witness....' Defendant's arguments fail to bring the sought testimony within any of the four exceptions to the Rape Shield Statute and appears to be directly in conflict with our Supreme Court's holding in State v. Autry, 321 N.C. 392, 398, 364 S.E.2d 341, 345 (1988) (noting that, because a 'victim's virginity or lack thereof does not fall within any of the four exceptions[,]' it is an area 'prohibited from cross-examination by Rule 412[,]' and the rule does not violate a defendant's right to confront an adverse witness)."

This same analysis should have applied in K.W., making the trial court's ruling proper, although, based upon the court of appeals' harmless error finding, it ended up not making a difference in the disposition.

-CM   

Providing The Answer: Court Denies Summary Judgment In Lawsuit Against Allen Iverson, But Highlights Hearsay Problem

I distinctly remember being an 11th grader in Virginia Beach in 1993 when Governor Douglas Wilder pardoned Hampton basketball star Allen Iverson after he was convicted for his role in a bowling alley brawl.  And the reason I remember it so well is because of the sharp debates that Wilder's decision engendered in the hallways and cafeteria (I also remember Iverson's college games at Georgetown being appointment TV).  Well, it looks as if A.I. has gotten himself into some more legal trouble, at least according to a patron at the D.C. nightclub Zanzibar on the Waterfront (which, anecdotally, was literally steps away from my wife's summer sublet when she was working as a law clerk at the National Housing Law Project).

In Broady v. Zanzibar on the Waterfront, LLC, 2008 WL 4191078 (D.D.C. 2008), Gregory Broady alleged that he incurred significant injuries when he was struck by an unidentified security guard at the Zanzibar on the Waterfront nightclub.  In his complaint, Broady identified the security guard as "John Doe" and alleged that John Doe was employed either by Zanzibar or by Iverson, who was at Zanzibar on the night that Borady was allegedly injured.  In Broady, Iverson moved for summary judgment, which the court denied, finding that there was a genuine issue of material fact as to whether Iverson had an agency relationship with John Doe when Doe allegedly struck and injured Broady.

Notwithstanding this denial, the court noted that Broady's filings in connection with his opposition to Iverson's motion included a number of factual assertions that were entirely unsupported by the record. The court thus "identifie[d] the most egregious of Plaintiff's unsupported assertions below, in order to frame the future litigation of th[e] case."  In so doing, however, I think that the court overstated the difficulty that Broady will face in attempting to prove one of his allegations.

Specifically, the court highlighted Broady's assertion that after he was "struck and injured, the John Doe guard was approached about his behavior, Allen Iverson indicated, 'If he goes, I go.', and both were allowed to stay. This represents ratification of the conduct by Allen Iverson." Allen Iverson."  The court noted that in support of this assertion, Broady cited to his own deposition testimony that he had a telephone conversation with a Zanzibar owner in the days following the alleged incident with John Doe, during which the Zanzibar owner,

     "said that the gentleman that I explained to him that I had a problem with, that I described, said that they had a problem with him and they were going to escort him out of the club and that is when Allen Iverson stepped up and said if he goes, then I go, and they said that they were forced to let him stay."

According to the court,

     "Plaintiff's testimony represents inadmissible hearsay because Plaintiff offers it for the truth of the matter asserted, i.e., to prove that Allen Iverson said 'If he goes, I go....'  Indeed, Plaintiff's testimony represents double hearsay; he offers his own report as to what the unidentified Zanzibar owner purportedly told him Iverson allegedly said on June 4, 2004. In short, Plaintiff's double hearsay testimony cannot support a conclusion that Iverson ratified John Doe's alleged action in striking Plaintiff."

As I said, I think that this overstates the matter and makes it appear that Broady faces two hurdles in getting Iverson's statement.  In fact he only faces one.  That's because, pursuant to Federal Rule of Evidence 801(d)(2)(A), Iverson's statement is the admission of a party-opponent (the civil defendant) and thus, technically, non-hearsay.  What this means is that all that Broady needs to do to get Iverson's statement before a jury is convince the Zanzibar owner to testify concerning Iverson's statement.

-CM

Article Of Interest: Ruebner And Goryunov Update Forfeiture Article In Wake Of Giles, Likely Launching The First Extended Critique Of The Majority Opinion

Earlier, I posted an entry about "Loss of Sixth Amendment Confrontation Rights: Forfeiture Triggered By Voluntary Wrongful Conduct," an article by my colleague Ralph Ruebner and law student Eugene Goryunov.  The version of the article to which I linked was written before the Supreme Court's opinion in Giles v. California and advocated a position that was ultimately rejected by Justice Scalia in his majority opinion.  Well, in the wake of Giles v. California, the authors decided to retool the article over the summer to add a critique of Justice Scalia's majority opinion, which I think that they do quite convincingly.  I would imagine that this is the first extended critique of the majority opinion, and if it is a bellwether of things to come, I don't think that the opinion will be treated that kindly in the pages of the country's law reviews (Indeed, I have already had a few students ask me for unique attacks that they can make upon the opinion in their law review comments based upon the belief that there will be a deluge of articles criticizing it).  Here is the updated SSRN abstract.  You will have a chance to read their updated article in a forthcoming issue of the University of Toledo Law Review, or, right now, you can download the updated version here:  Download giles_article.doc

-CM

Under Pressure: California Court Delays Sentencing Based Upon Allegations Of Juror Misconduct

According to an article in appealdemocrat.com, a report of possible juror misconduct stalled the sentencing of a man convicted of a series of robberies in California.  That man, Haurilio Silva-Valencia, was convicted of three felony counts of second-degree burglary, two felony counts of second-degree robbery and one felony count of attempted second-degree robbery.  But, 10 days ago, his attorney, Jesse Ortiz, allegedly received a phone call from the neighbor of a juror, who alleged that the juror told her that another female juror and she felt that Valenica was not guilty but were forced to change their positions.

Ortiz claimed that the call could form the basis for a new trial, but Colusa County District Attorney John Poyner correctly countered that the phone call constituted inadmissible hearsay.  Ortiz ostensibly agreed, but asked for a week so that he could try to get the juror herself to testify or provide a statement.  And Judge S. William Abel responded, "I don't understand a lot of things about your request...but you have a week."

If Judge Abel had understood Ortiz's request, he likely would have denied it.  That's because California Code of Evidence Section 1150(a) states that:

     "Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.  No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either
in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined."

So, what's the problem?  Well, the two jurors who were allegedly pressured to change their positions could only prove that they succumbed to such pressure by testifying about the effect of the other jurors' conduct on their mental processes.  And California courts have consistently proscribed this type of jury impeachment.  See, e.g., People v. Taplin, 2003 WL 1958878 (Cal.App. 2 Dist. 2003) ("Appellant also contends that Juror No. 5 himself committed misconduct...in that he...based his decision not on the evidence but on the pressure of other jurors....Th[is] claim[]..., like the related assertion of improper 'intimidation,' is barred under Evidence Code 1150, because it depends upon inadmissible evidence of Juror No. 5's mental processes."); People v. Stevenson, 84 Cal.Rptr. 349, 350 (Cal.App. 1970) ("In the other affidavit a second juror alleges, 'It was my understanding that we had to come back with a unanimous verdict one way or the other. Since I was one of the few who were for acquittal, I felt that it was useless to persist in my convictions and, therefore, voted for a guilty verdict....'In the case at bench, the evidence supplied by the jurors' affidavits was inadmissible because it showed only the mental processes of the respective jurors, and the subjective considerations which influenced their verdicts.").

-CM

Ma-a-a-a-a-a-a-a-a-a-a-aps: Eighth Circuit Finds Maps Leading To Murder Victims Are Not "Testimonial"

I strongly disagree with the Eighth Circuit's Confrontation Clause ruling in its recent opinion in United States v. Honken, 2008 WL 4181150 (8th Cir. 2008).  The facts of Honken are complicated, but basically the prosecution's theory of the case was that, in 1993, after being indicted on federal drug trafficking charges, Dustin Lee Honken and his girlfriend, Angela Johnson, kidnapped and murdered a federal witness, the witness's girlfriend, and the girlfriend's two young daughters.  For years, however, authorities were not able to locate the bodies of these victims.  That all changed in 2000, when a federal grand jury indicted Johnson.

While in the Benton County Jail, Johnson became acquainted with Robert McNeese, a federal prisoner serving a life sentence. Johnson and McNeese discussed Johnson's case, and, as a ruse, McNeese told Johnson she could escape responsibility for the murders if McNeese could arrange to have another inmate who was already serving a life sentence falsely claim responsibility for murdering the five victims.  McNeese told Johnson that in order to make the confession believable, the other inmate would need to be able to furnish proof of his involvement by leading authorities to the victims' bodies. Johnson prepared and provided McNeese with maps and notes describing the locations where the five bodies were buried, whereupon McNeese turned the maps and notes over to law enforcement.  Using the maps Johnson drew, officers discovered the bodies, which were buried in a single hole located in a wooded area.

Honken was subsequently charged with the murders, and he unsuccessfully objected to the prosecution's introduction of Johnson's maps into evidence.  On appeal, the Eighth Circuit affirmed the trial court's decision to admit the maps.  It found that the maps were admissible as a statement against interest under Federal Rule of Evidence 804(b)(3), which allows for the admission of a "statement" of an unavailable declarant if the statement 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."

In so finding, the Eighth Circuit first correctly found that Johnson was "unavailable" because she invoked her Fifth Amendment right not to testify.  The court then rejected Honken's argument that the maps were not "statements against Johnson's penal interest because she drew them in the hopes of aiding her penal interest."  Instead, it found that:

     "Johnson's maps clearly subjected her to criminal liability. By admitting she knew where the victims' bodies were buried, Johnson implicated herself in the murders, or at least in the subsequent cover-up of the murders. No reasonable person would make such a statement unless she believed it to be true. The fact Johnson harbored the delusion that a complete stranger would take the blame for the five murders does not make the maps any less inculpatory."

The Eighth Circuit then concluded that the admission of the maps did not violate Johnson's rights under the Confrontation Clause.  Since the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), courts have held that the Confrontation Clause is violated when hearsay is "testimonial admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  And while it is difficult to pin down an exact definition of "testimonial" statements, most courts have determined that they are statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial."

Thus, because Honken was not able to cross-examine Johnson, admission of the maps would have violated Honken's Confrontation Clause rights if the maps were "testimonial."  So, why did the court find that the maps were non-testimonial?  According to the Eighth Circuit:

     "McNeese most likely anticipated Johnson's maps would be used at a later trial. However, we conclude the proper focus is on Johnson's expectations as the declarant, not on McNeese's expectations as the recipient of the information. Johnson did not draw the maps with the expectation they would be used against Honken at trial, nor did she draw the maps 'for the purpose of establishing or proving some fact' against Honken. Johnson drew the maps for the express purpose of recruiting another inmate to confess to the murders so she and Honken could go free....We simply cannot conclude Johnson made a 'testimonial' statement against Honken without the faintest notion she was doing so."

It seems to me that the court was saying one of two things, either of which would be incorrect.  First, the Eighth Circuit might have been saying that while Johnson was aware that the maps might be available for use at a later trial, she was unaware that the maps might be available for use at a later trial against Honken.  Under Crawford and its progeny, a statement is "testimonial" if it was "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial;" there is no requirement that than an objective person in the declarant's position would reasonably believe that her statement would be available for use at a later trial against any particular individual.  Thus, if the Eighth Circuit's decision was based upon such line drawing, it was incorrect.

But maybe, the Eighth Circuit was instead saying that an objective person in Johnson's position would not have reasonably believed that her maps would be available for use at any later trial.  In that case, the Eighth Circuit would have applied the correct legal standard, but I would strongly disagree with its conclusion.  According to the court, Johnson drew the maps so that the murders could be pinned on another inmate.  A reasonable person in Johnson's shoes thus absolutely should have understood (at least as far as the courts infer that most people have a working knowledge of how the legal system works) that the maps could have been available for use at a later trial, albeit a trial against the other inmate.

-CM

Putting On The Ritz: New York Court Makes Seemingly Improper Rule 609(b) Ruling In Slip And Fall Case

I think that the recent opinion of the United States District Court for the Southern District of New York in Sanders v. Ritz-Carlton Hotel Co., LLC, 2008 WL 4155635 (S.D.N.Y. 2008), contains a misapplication of Federal Rule of Evidence 609(b).  In Sanders, Dean Sanders sustained a fractured ankle and fibula when he fell in a condo unit at the Ritz-Carlton Golf Club & Spa in Jupiter, Florida. Sanders alleged that the marble floor of the unit was covered with dust or film and that his fall was a result of the defendants' negligence in failing to keep the marble floor of his unit clean and free of slippery materials.  The defendants countered that there was no dust on the unit's marble floor and that even if there were dust on the floor, they neither caused the dust to be there nor had notice of the dust.

Before trial, the defendants brought a motion in limine, pursuant to Federal Rule of Evidence 609(b) to admit Sanders' 1987 conviction for tax evasion and 1996 RICO conviction in the event that he testified for impeachment purposes.  The court noted that both of these convictions were crimes of "dishonesty or false statement" (or crimen falsi) under Federal Rule of Evidence 609(a)(2) and thus per se admissible to impeach Sanders, assuming that the convictions were timely.

You see, crimen falsi convictions are per se admissible under Federal Rule of Evidence 609(a)(2) only if the later of the date of the conviction or the date of the witness' release from confinement was 10 years or less before trial.  If the date of conviction or the date of release was more than 10 years old, Federal Rule of Evidence 609(b) indicates, inter alia, 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."

The court then found that Sanders was released from incarceration for his 1996 RICO conviction in 2000, making it per se admissible to impeach him under Federal Rule of Evidence 609(b). It found, however, that Sanders was released from incarceration for his 1987 tax evasion conviction in 1987, making it more than 10 (indeed, more than 20) years old.  The court then cited to the Advisory Committee Note to Federal Rule of Evidence 609(b), which indicates that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances."  The court, however, then proceeded to find such "exceptional circumstances" because: (1) Sanders tax evasion conviction was in the nature of crimen falsi, meaning that it had high probative value, and (2) "the jury will be asked to assess Sanders's credibility in determining whether dust on the floor caused his injuries," making his credibility a central issue at trial.

With due respect to the court, I don't see how the second factor is exceptional.  In almost any case where a party takes the witness stand, he will make claims that counter those of the other party's witnesses, making his credibility essential.  And while crimen falsi convictions are thought to be unusually probative, providing a somewhat "exceptional" circumstance, there are two other factors militating against admission.

The first is that, the older a conviction, the less probative value it has. See, e.g., United States v. Cook, 608 F.2d 1175, 1194 (9th Cir. 1979).  Here, as noted, Sanders' tax evasion conviction not only falls on the bad side of the 10 year time limit, but it is in fact more than 20 years old, greatly diminishing its probative value.  Second, and this is a point that I cannot believe that the court failed to address,  the probative value of Sanders' tax evasion conviction was greatly lessened by the fact that the court already approved his impeachment through evidence of his RICO conviction. 

Courts in Federal Rule of Evidence 609(b) cases typically consider the evidentiary need of the impeaching evidence at issue.  If the party seeking to impeach has no other methods by which it can impeach the opposing party, the "old" conviction increases in probative value while the converse applies when it has other methods at its disposal.  Compare United States v. Pritchard, 973 F.2d 905 (11th Cir. 1992), with United States v. Hamilton, 48 F/3d 149 (5th Cir. 1995).

And here, the United States District Court for the Southern District of New York's argument that crimen falsi convictions are unusually probative should have cut against admissibility of the tax evasion conviction.  Because the defendants already could impeach Sanders through his unusually probative RICO conviction, the probative value of his tax evasion conviction was greatly lessened, meaning that it almost certainly shouldn't have been approved for admission under Federal Rule of Evidence 609(b).

-CM   

Taking The Bait: 7th Circuit Finds That A "Bait Money" List Is Admissible Under The Business Records Exception

I agree with the Seventh Circuit's application of the business records exception to the rule against hearsay to a "bait money" list in United States v. LeShore, 2008 WL 4173086 (7th Cir. 2008). LeShore dealt with the robbery of the First Source Bank in Fort Wayne, Indiana, by men wearing white cloth masks.  The defendant James LeShore was later linked to this robbery in part through the recovery of "bait money" from a bag that was in his possession.

The term "bait money" refers to a packet of bills the serial numbers of which a bank pre-records.  The bank does not circulate the bait money, and the only way it leaves the bank is if it is stolen; consequently, if a bill from a bait money list turns up, it was most likely stolen at some point.  In order to prove that the money recovered from LeShore's bag was "bait money" from the bank, the prosecution introduced into evidence a bait money list of all the "bait money" that was in the bank at the time of the subject robbery.

On LeShore's appeal, the Seventh Circuit found that the trial court did not err in admitting this evidence.  It first noted that "[a] bait money list is a writing offered to prove the truth of the matter asserted-that the money in evidence was part of a bait money pack," making it classic hearsay under Federal Rule of Evidence 801.  The court then, however, found that the bait money list qualified for admission as a business record under Federal Rule of Evidence 803(6), which states, inter alia,  that records kept in the course of regularly conducted business activity are admissible if certain conditions are "shown by the testimony of the custodian or other qualified witness...."

LeShore countered, among other things, that:

     "even though the bank regularly kept this record, it was irregularly compiled (in this case, remade): a new list was made only after the theft (or loss) of an existing bait money packet. By its very nature, therefore, LeShore argue[d], a bait money list cannot be regularly compiled. Compilations are generated only when a robber gets away with the old packet."

The Seventh Circuit, however, rejected this argument, finding that:

     "This argument overstates the spirit of both the rule and the exception. The chief concern with hearsay evidence is that it lacks sufficient indicia of reliability. Even though the bank did not compile its bait money list regularly, it verified the list three times per year. The Advisory Committee indicated that regular verification is one of the indicia of reliability that gave business records the status of a freestanding exception in the first place....Indeed, all of the factors suggested by the Advisory Committee as central to the justification for the exception are met in this case: systematic checking, regularity and continuity (giving rise to precision), actual reliance by the business, and compilation and verification by someone whose duty it is to do so."

I agree with the Seventh Circuit's explanation of the spirit of the business record exception.  I think that the provision of the Advisory Committee Note cited by the court is the one that states that "[t]he element of unusual reliability of business records is said variously to be supplied by systematic checking, by regularity and continuity which produce habits of precision, by actual experience of business in relying upon them, or by a duty to make an accurate record as part of a continuing  job or occupation."  Based upon the facts cited by the court, it seems like all of these elements were satisfied.  The ruling also seems consistent with precedent from other circuits. See, e.g., United States v. Davis, 542 F.2d 743, 745-46 (8th Cir. 1976) ("The bank's bait money list was introduced by the government over the objection of Davis through the testimony of an auditor of the Little Rock bank. The document was accepted as a business record in accordance with Fed.R.Evid. 803(6).").

Readers who are aware that the business records exception generally does not allow for the admission of accident reports might wonder how this situation is different.  Well, an accident report is only made after an accident, meaning that there are reliability concerns because the business could lie in the report to understate its liability and/or overstate the liability of someone outside the business, especially if that report could be admissible in the trial over that accident.  In the "bait money" situation, however,  while the bank re-makes its "bank money" list after a robbery, it is the list in existence at the time of the robbery that the bank seeks to introduce, obviating any reliability concerns. 

-CM