EvidenceProf Blog

You Can't Do That In Interrogation: Supreme Court Of Canada Announces New Standard For Youth Interrogation

In its judgment yesterday in R. v. L.T.H., 2008 SCC 49, the Supreme Court of Canada announced an interesting new standard for determining whether youths understand what they are doing when they waive their right to counsel and right to remain silent.  In L.T.H., 15 year-old L.T.H., was arrested after a police chase, taken into custody, and asked, several times, whether he wished to contact counsel, but he declined.  Finally, approximately 12 hours after the arrest, L.T.H. was brought to the Halifax police station and interviewed by Constable Jeffrey Carlisle, who reviewed a young offender statement form with L.T.H.  Asked by the officer whether he understood his rights, L.T.H. said "yes" and said that he did not wish to call a lawyer or talk to a lawyer in private.  Likewise, he answered "no" when asked if he wanted to consult in private with a parent or another appropriate adult.

L.T.H. also interrupted the reading of the form at one point and stated that he was not going to answer all of the questions asked of him. The officer told him, however, that the questions did not relate to the incident and were only "do you understand?" questions. Constable Carlisle then finished reading the form, whereupon L.T.H. initialled and signed the waiver of rights; then, in response to questioning, he provided an inculpatory videotaped statement that subsequently formed the basis of the Crown’s case against him, in which he was charged with dangerous driving causing bodily harm.

At trial, the trial judge excluded the videotaped statement from evidence based upon (1) the testimony of L.T.H.'s mother that her son had a learning disability, (2) the fact that Constable Carlisle used a rapid pace in navigating the waiver form, used a monotone voice, and had a lack of eye contact with L.T.H., and (3) the fact that L.T.H. interrupted the reading of the form at one point and stated that he was not going to answer all of the questions asked of him.  Thereafter, the Crown called no further evidence and the charge was dismissed.

The Crown subsequently appealed this ruling, which might have merely led to a Supreme Court judgment very much limited to the facts of L.T.H.'s case.  Instead, the Court adopted to me what seems to me to a new standard for youth interrogations.  The Court noted that under s. 146 of the Youth Criminal Act, statements made by young persons are inadmissible against them unless the persons who took them “clearly explained to the young person, in language appropriate to his or her age and understanding”  It then found that it was presented with two questions: 

     "The first is whether the Crown must prove not only that the necessary explanation was given in appropriate and understandable language, but also that it was in fact understood by the young person who made the statement.  The second is whether compliance with the informational requirement must be proved by the Crown beyond a reasonable doubt, or only on a balance of probabilities."

The majority then concluded, that:

     "Because of their interdependence, and for other reasons to be later explained, I would answer both questions together.  In my view, the Crown’s evidentiary burden will be discharged by clear and convincing evidence that the person to whom the statement was made took reasonable steps to ensure that the young person who made it understood his or her rights under s. 146 of the YCJA.  A mere probability of compliance  is incompatible with the object and scheme of s. 146, read as a whole.  Compliance must be established beyond a reasonable doubt." 

This seems like a fairly rigorous standard for the Crown to meet (but one with which I agree), and it is one which was not met in L.T.H.  And it will certainly be interesting to see how Canadian courts apply the standard in future cases.

-CM

Real Error, Real Fast: Utah Judge Uses Invited Error Doctrine To Deny New Trial In Fazoli's Trial

A recent case from Utah gives me my third recent opportunity to address the invited error doctrine (for previous posts, click here and here).  In that case, former Fazoli's restaurant manager J.W. Craig Lamoreaux was convicted by a jury in March of one felony count of attempted forcible sex abuse for allegedly putting his hand down the pants of and making sexual advances toward a 17-year-old female employee in March 2007.  During trial, defense counsel introduced into evidence a DVD-recorded interview of the victim during which she told police that Lamoreaux had mentioned he was transferred from the Orem store to the Provo store because of other flirtatious acts.  Defense counsel later, however, rebutted this allegation through an affidavit from a regional manager, who said that no harassment had occurred in Orem.  Instead, according to defense counsel, Lamoreaux was transferred because of a paperwork issue.

And when defense counsel pressed this theory of Lamoreaux's previous transfer during closing arguments, the prosecution rebutted it by referencing the alleged victim's statements in the DVD-recorded interview.  After Lamoreaux was convicted, defense counsel argued that he was entitled to a new trial because the prosecutor improperly referred to the alleged victim's hearsay statements in his closing argument.  Moreover, I would add that the alleged victim's statement should have been inadmissible not only on hearsay grounds, but also on the ground that it constituted improper propensity character evidence.

But while the alleged victim's statement thus should not have been introduced into evidence, the problem for Lamoreaux was that his counsel, and not the prosecution, introduced it into evidence.  Thus, 4th District Judge Claudia Laycock found that a new trial was not warranted because "[i]f it was error, it was invited error brought in by the defense" and "[p]rosecutors had every right to comment on testimony that had come in without any objection."  More specifically, the defendant "was the one who introduced it into evidence, not the state, and when this statement came up ... on the tape, it is his obligation to deal with it."  I agree with the judge's conclusion because this was a classic case of a party inviting the court to commit an error, meaning that the party had no grounds to complain after that invitation was accepted.

-CM

William Mitchell Law Review Calls For Evidence Articles

Call for Papers – Evidence Law

William Mitchell Law Review, Vol. 35, Issue IV (Spring 2009)

The William Mitchell Law Review is proud to dedicate its fourth issue to Evidence Law in its upcoming Volume 35 (spring 2009). We are currently seeking papers that examine current issues and recent developments in this important area of law. Submissions may either take the form of shorter commentaries or longer law review articles. We are also accepting submission proposals at this time.

The William Mitchell Law Review is highly regarded both regionally and nationally. Our Law Review recently ranked twenty-second in citations by judges and ranked fifty-seventh in citations by other law journals, culminating in an overall ranking of seventieth. Over the years, the William Mitchell Law Review has featured the works of various scholars and practitioners such as Congressman Tim Penny, and former Vice President Walter Mondale. The William Mitchell Law Review has also published nationally known legal experts ranging from Philip Bruner, to Supreme Court Justices Sandra Day O’Connor, Byron White, and Harry Blackmun. Now, we would like to invite you to join us to publish in our upcoming volume.

Please direct inquiries to Executive Editor Bob Ambrose at [email protected]. Please send submissions to [email protected] or mail them to our Editorial Office. Please note that the Law Review prefers electronic submissions.

William Mitchell Law Review

William Mitchell College of Law

875 Summit Avenue, Suite 159

St. Paul, Minnesota 55105

Thank you for your interest.

Bob Ambrose

Executive Editor

William Mitchell Law Review, Vol. 35

[email protected]

To Catch A Predator?: Second Circuit Questions Trial Judge's Decision To Exclude Expert's Testimony On Role-Playing In Internet Sex Chatrooms

In its recent opinion in United States v. Joseph, 2008 WL 4137900 (2nd Cir. 2008), the Second Circuit reversed a man's conviction based upon an improper jury charge but also made some interesting statements about expert testimony.  In Joseph, Dennis Joseph appealed from his conviction for using his computer to send messages on the Internet to entice an individual he believed to be an underaged girl to engage in unlawful criminal sexual activity, in violation of 18 U.S.C. Section 2422(b).

Specifically, at trial it was proven that Joseph visited an Internet chat room called "I Love Older Men," where he initiated a conversation with an individual with the screen name "Teen2Hot4U," who purported to be a 13-year-old girl named "Lorie."  "Teen2Hot4U" was in fact Stephanie Good, a 55-year-old woman who spends 20 to 50 hours a week surfing the Internet for those she believes to be sexual predators and reporting her finds to the FBI.  And that's exactly what she did with Joseph, later referring him to her friend "Julie," who was in fact FBI agent Austin Berglas posing as a 13 year-old girl. 

Joseph later arranged a meeting with these girls, whereupon he was arrested by authorities.  Joseph's defense at trial was that, inter alia,

     "when he encountered 'Lorie' in what he believed was an 'adult sex theme[d]' chat-room, he was convinced that she was an adult posing as a teenager. He claimed that her familiarity with sexual terminology convinced him that she was part of a 'make-believe, pretend world.' When 'Lorie' offered to introduce him to 'Julie,' he played along. Joseph believed 'Julie' was also a sexually experienced adult engaged in role-playing."

Joseph sought to bolster his claim through the testimony of his expert witness, Dr. James Herriot, who would have testified about role-playing in the context of sexually explicit conversations on the internet. Dr. Herriot is an Associate Professor of Clinical Sexuality at the Institute of Advanced Human Sexuality in San Francisco and proposed to testify about a distinct culture of the Internet in which one can become a "fantasy character[]."  Joseph also wanted Dr. Herriot to explain the realities and motivations of online role-playing via chatrooms and e-mail.  The trial judge, however, precluded such testimony.  The judge then proceeded to give an improper jury charge, which led to Joseph's conviction to be reversed on appeal.

The Second Circuit, however, also urged the trial court to revisit its ruling on the admissibility of Dr. Herriot's testimony.  The Second Circuit found that Dr. Herriot could likely be qualified as an expert witness under Federal Rule of Evidence 702 because he wrote his Ph.D. thesis on sexual communication on the Internet and had conducted a large number of interviews and studied chat-room conversations to understand sexual behavior on the internet.  The court also found that his testimony would assist the jury because "[a]lthough some jurors may have familiarity with Internet messaging, it is unlikely that the average juror is familiar with the role-playing activity that Dr. Herriot was prepared to explain in the specific context of sexually oriented conversation in cyberspace."  Indeed, the court noted both that "[n]umerous courts have upheld the admission of expert testimony to explain conduct not normally familiar to most jurors" and that Dr. Herriot had previously been allowed to testify on the subject in other cases in federal courts.

The Second Circuit then found that the fact that Dr. Herriot's testimony would rely on inadmissible hearsay -- the interviews and chat-room conversations -- shouldn't give the trial court pause.  That's because, in relevant part, Federal Rule of Evidence 703 states that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted."  The court then found that Dr. Herriot's testimony should be admissible because "[s]ocial science experts commonly base their opinions on interviews."

I agree with the well reasoned analysis of the Second Circuit and think that Dr. Herriot's testimony should be admissible on retrial.

-CM

Your Honor, We Call Your Honor To The Stand: 7th Circuit Finds Admission Of Judge's Testimony Necessitates New Trial

Federal Rule of Evidence 605 states that "[t]he judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point."  The plain language of this Rule explains why I haven't had many opportunities to address it on this blog.  Judges know the rule and recuse themselves from hearing cases in which they know they might have to testify, and it is usually only when a judge refuses to recuse himself that the Rule comes into play.  The Seventh Circuit, however, was based with a different factual scenario in the recent case, United States v. Blanchard, 2008 WL 4119995 (7th Cir. 2008).

In Blanchard, Marshall Blanchard was tried and convicted of one count of manufacturing methamphetamine and one count of unlawful possession of a firearm by a convicted felon.  During pre-trial suppression hearings, Blanchard 's son rendered inconsistent testimony, leading the trial judge to comment, inter alia,:

     "And, of course, now [the prosecutor] has asked him specific questions that lead me to the undeniable conclusion that he has not been credible because he knew that his answers that he was giving were not the same answers that he had given to the grand jury in April."

Later, during trial, the government sought to clarify who had first suggested that the son's testimony may have been untruthful. When the son responded, "The judge and you," the prosecutor was not satisfied, and he asked the son if he remembered what the judge had said to him. Defense counsel promptly objected and requested a sidebar, but the judge rejected that request, stating, "No. If I said something, it will be in the record, and you have a copy of the record. Everybody's been talking about what everybody said. So if you have what I said, it's on the record. It can be put before the jury."  Then, after a second rejected request for a sidebar, the prosecutor read aloud the entirety of the trial judges' suppression-hearing comments indicating his belief that the son was testifying untruthfully.

Furthermore, according to the Seventh Circuit,

     "Adding another wrinkle to this already unusual event, during the prosecutor's reading of the court's suppression-hearing comments, the trial judge characterized his comments, in response to a defense counsel objection and in the presence of the jury, as 'judicial testimony.' The court stated, 'It's my statement. You've got the record. Has he misread it?...It's a direct statement of the Court in a judicial proceeding. You were present. You have a copy of it. Has he misread what I said?...This is reading judicial testimony." 

Based upon this, the Seventh Circuit's decision was easy:  The judge's "testimony" violated Federal Rule of Evidence 605, it was substantially more prejudicial than probative under Federal Rule of Evidence 403, and it was not harmless error, thus necessitating a new trial.  I agree with the Seventh Circuit's opinion and find it hard to believe that there could ever be a case where a judge testifies, and the admission of his testimony is deemed harmless error based upon the fact that, unlike other rules of evidence,  Federal Rule of Evidence 605 does not even require an objection to preserve the issue on appeal.

-CM 

The Family Business: Second Circuit Finds That Mafiosos Don't Need To Be Qualified As Expert Witnesses

The mafia may be the family business, but, according to the Second Circuit, that doesn't mean that its members have to be qualified as expert witnesses before they can testify abut it.  In United States v. Yannotti, 2008 WL 4071691 (2nd Cir. 2008), Michael Yannotti appealed from his conviction for conspiring to engage in racketeering in violation of RICO.  On appeal, one of his claims was that the trial court improperly admitted the testimony of Gambino Family associate Andrew DiDonato.  At trial and over Yannotti's objection, the trial judge permitted DiDonato to testify, inter alia, about two intercepted conversations involving Yannotti, which allegedly proved that he engaged in loansharking.

According to DiDonato, individuals who receive extortionate loans usually make weekly payments on the interest rather than on the principal and that the interest is usually termed "points" by those involved in loansharking.  In response to the government's question about the meaning of an alleged loansharking victim's statement to Yannotti that "I'm going to leave you a two," DiDonato testified that it meant "200 dollars" in interest. DiDonato also testified that the intercepted conversations consisted of Yannotti seeking to collect a debt from an individual who was "backed up on his payments."  The court admitted this testimony as proper lay witness testimony under Federal Rule of Evidence 701 after determining that DiDonato acquired his understanding of the conversation through personal experience with loansharking.

Federal Rule of Evidence 701 states that:

     "If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702."

On Yannotti's appeal, the Second Circuit found that DiDonato's testimony easily met the first two requirement of Rule 701 because: (1) it was rationally based on his own perceptions which he derived from his direct participation in the loansharking activities of the charged enterprise, and (2) there was little question that DiDonato's testimony was helpful to the jury because the conversation between Yannotti and the individual was cryptic and required interpretation.

The Second Circuit then found that his testimony met the third requirement based upon the conclusion:

     "that where a witness derives his opinion solely from insider perceptions of a conspiracy of which he was a member, he may share his perspective as to aspects of the scheme about which he has gained knowledge as a lay witness subject to Rule 701, not as an expert subject to Rule 702....No different conclusion is mandated by Rule 701's requirement that a lay opinion must be the product of 'reasoning processes familiar to the average person in everyday life,' and not 'scientific, technical, or other specialized knowledge....'  While we do not profess that loansharking is an activity about which the average person has knowledge, we find that the opinion DiDonato reached from his own loansharking experience derived from a reasoning process familiar to average persons. In short, his opinion did not depend on the sort of specialized training that scientific witnesses or statisticians rely upon when interpreting the results of their own experiments or investigations."

All of this would make sense if the only experts who needed to be qualified under Rule 702 were scientific witness, statisticians, and those with specialized training or education.  But, as I like to tell my Evidence students, Rule 702 takes all types.  Sure, neurosurgeons need to be qualified as expert witnesses under Rule 702, but so do witnesses who want to testify as experts in general automotive knowledge.  And while "My Cousin Vinny" got plenty of legal issues wrong, it was right that Mona Lisa Vito could be qualified as an expert able to give testimony concerning general automotive knowledge based upon working in her father's garage, despite having no specialized training or education.

Indeed, in the famous case of United States v. Johnson, 575 F.2d 1347 (5th Cir. 1978), the Fifth Circuit found that a pot head could be, and had to be, qualified as an expert witness on the question of whether drugs were imported despite the fact "that he had no special training or education for such identification," with "his qualifications c[oming] entirely from 'the experience of being around a great deal and smoking it.'"   

Government agents typically have to be qualified as expert witness under Rule 702 before they can render testimony about loansharking. See, e.g., United States v. Weiner, 3 F.3d 17, 21 (1st Cir. 1991).  And based upon the foregoing analysis, I don't see why members of the mafia should be treated any differently.   

-CM

True Confessions: Court of Appeals Of Texas Finds Cleric-Penitent Privilege Doesn't Apply To Confessions In The Church Of Christ

A murder case in Houston has produced an interesting evidentiary ruling under Texas' clergy-penitent privilege.  In Leach v. State, 2008 WL 4075797 (Tex.App.-Hous. 2008), Dan Randall Leach II confessed to the following facts in a statement to Sheriff's deputies:

     Ashley Wilson and he dated in high school, but the relationship ended when she suffered head injuries in an accident.  Later, the two reconnected, and Wilson became pregnant with Leach's child, but no one else knew about the relationship.  Wilson was depressed and insecure about the future, and Leach convinced her to engage in "pseudo-therapy" with him, in which she would write down all the negative things in her life, after which he would show her all the good things.  Leach also told Wilson not to include any mention of him.  After Wilson wrote the note, Leach convinced Wilson to put a pillowcase over her head as part of a trust exercise. While Wilson's head was covered, Leach grabbed a three-foot long cord and strangled her to death.  Leach then positioned her body on the bed to that it would appear that she had tied herself to the bed rails in an attempted or experimental suicide.

     The plan worked as Sheriff's deputies believed that Wilson had committed suicide and closed the case.  After seeing the film "The Passion of the Christ," however, Leach felt he had been "pricked by God" and needed to face the consequences of killing Wilson.  Leach thus stood before the congregation at his church and stated that he was going on a long journey. When he returned home, he confessed to his parents. His father then called the church elders to the house, and Leach confessed to them as well.

After Leach was convicted of murder, he claimed that his statement to the Sheriff's deputies was improperly admitted because it was aken in violation to his right to counsel, but I want to focus on his other argument, which was that the church elders should not have been able to testify concerning his confession at trial.  According to Leach, this confession was inadmissible under Texas' clergy-penitent privilege, Texas Rule of Evidence 505, which states that "[a] person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser."

Without even having to get into waiver issues, the Court of Appeals of Texas found that the privilege did not apply.  Why?  According to the court, a former elder of Leach's church, the Church of Christ, testified that the church does not have a doctrine that confessions will be kept confidential.  Moreover, Leach's father testified that a member of the congregation can confess to an elder, and the elder will stand up and tell the congregation what he has confessed, and they will all pray together

Leach's father also indicated that no communication is private unless requested. And one of the elders of the church testified that Leach never told him that he wanted his communication to be kept private. Moreover, Leach's mother and father both testified that Leach never expressly indicated that he wanted his statements to the clergy to be kept private.  Finally, Leach's mother also testified that Leach "knew when he told us what had happened that it was no longer going to be private once it got out."

All of this is fairly fascinating to me.  I had assumed that all religious institutions had policies of keeping their penitents' "confessions" confidential, meaning that such confessions would normally be inadmissible under cleric-penitent privileges in the same way that confessions to attorneys are normally inadmissible under the attorney-client privilege and confessions to psychotherapists are normally inadmissible under the psychotherapist-patient privilege.  Obviously, though, this is not the policy with the Church of Christ, and it might not be the policy with other religious institutions.  In Evidence class, I like to say that the so called "professional privileges" are all very similar, but this seems to me to be a key difference.

-CM

Exchange For His Parole?: Seventh Circuit Find Probation/Parole Periods Don't Count In Rule 609(b)'s Clock

In its recent opinion in United States v. Rogers, 2008 WL 4072542 (7th Cir. 2008), the Seventh Circuit correctly concluded that the ten year clock of Federal Rule of Evidence 609(b) starts after an individual is released from imprisonment and not after the end of his subsequent probation period.  In Rogers, Anthony Rogers was tried in 2005 on charges of making a false statement on a firearm-purchase form and being a felon in possession of a firearm. He testified in his own defense and was impeached with his 1993 conviction for distribution of cocaine. Rogers was released from prison on that conviction in 1994 after his sentence was modified to probation, and he thereafter remained on probation supervision until 1999.

At trial, the district court found that Rogers' previous conviction was not covered under Federal Rule of Evidence 609(b), which states, inter alia, 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."

According to the district court, Rogers was not "release[d]...from confinement" until his probation period ended, meaning that his prior conviction/release was less than 10 years old, making it admissible to impeach him under Federal Rule of Evidence 609(a)(1) as long as the "probative value of admitting this evidence outweigh[ed] its prejudicial effect to the accused." 

After he was convicted, however, Rogers brought a motion for a new trial, in which he contended that his release from confinement was the date he was released from imprisonment, not the date that his probation period ended, making his prior conviction/release more than 10 years old.  The district court agreed and found that while the probative value of Rogers' conviction outweighed its prejudicial effect, as required by Federal Rule of Evidence 609(a)(1), it did not do so to a substantial degree, as required by Federal Rule of Evidence 609(b).  This decision makes sense to me, because, as I point out in my new article, Impeachable Offenses?, the Advisory Committee indicated in its Note to Federal Rule of Evidence 609(b) that "[i]t is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances."  The district court nonetheless found that its erroneous impeachment ruling was harmless error, prompting Rogers' appeal to the Seventh Circuit.

The Seventh Circuit noted that the question it was presented with was "whether the probation that followed his release from prison for that conviction (essentially, his parole) may be said to constitute 'confinement imposed for that conviction.'"  The court indicated that this was a matter of first impression for it and it answered the question in the negative, relying upon the Fifth Circuit's opinion in United States v. Daniel, 957 F.2d 162 (5th Cir. 1992).  In that opinion, the Fifth Circuit in turn relied upon the Advisory Committee Note to Rule 609(b), which it found conclusively addressed and rejected the probation/parole formulation of the ten year time limit.  I actually think that both opinions chop up that Note too much, so I will simply quote it directly to show why both courts were right.  According to the Advisory Committee,

     "Rule 609(b) as submitted by the Court was modeled after Section 133(a) of Public Law 91-358, 14 D.C. Code 305(b)(2)(B), enacted in 1970. The Rule  provided:

     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 release of the witness from confinement imposed for his most recent conviction, or the expiration of the period of his parole, probation, or sentence granted or imposed with respect to his most recent conviction, whichever is the later date.

     Under this formulation, a witness' entire past record of criminal convictions could be used for impeachment (provided the conviction met the standard of subdivision (a)), if the witness had been most recently released from confinement, or the period of his parole or probation had expired, within ten years of the conviction.

     The Committee amended the Rule to read in the text of the 1971 Advisory Committee version to provide that upon the expiration of ten years from the date of a conviction of a witness, or of his release from confinement for that offense, that conviction may no longer be used for impeachment. [And the Rule was subsequently amended to allow such remote convictions to be admissible in rare cases with exceptional circumstances]."

Thus, the Advisory Committee clearly found that the date of "release...from confinement" was different from the date of the expiration of a parole/probation period and that it was the latter date that was controlling under Federal Rule of Evidence 609(b).  I thus agree with the Seventh Circuit that  "'confinement' for purposes of the ten-year time limit in Rule 609(b) does not include periods of probation or parole."  Indeed, simply thinking logically about what we think is meant by the word "confinement," I don't see how it could be read to include a parole probation/parole period.

[As often happens in conviction impeachment cases, however, the Seventh Circuit agreed with the district court that its evidentiary error was harmless in light of the other evidence of Rogers' guilt.].

-CM

WikiJudge?: 8th Circuit Finds That Immigration Judge Improperly Relied Upon Wikipedia In Asylum Case

In Budasa v. Mukasey, 2008 WL 3981817 (8th Cir. 2008), the Eighth Circuit granted a petition for review of an order of the Board of Immigration (BIA) based upon improper consideration of evidence from internet encyclopedia Wikipedia.  In Mukasey, Lamilem Badasa entered the U.S. illegally using a fraudulent Italian passport and later applied for asylum and relief under Article III of the Convention Against Torture. The Immigration Judge (IJ) found that Badasa's claim was not credible because she had submitted fraudulent documents designed to establish her identity  The BIA initially dismissed Badasa's administrative appeal, also concluding that she had failed to establish her identity. Badasa thereafter moved to reopen her case based on a travel document recently acquired from the Ethiopian government, known as a laissez-passer, which Badasa alleged would establish her identity.  The BIA then reopened the case and remanded it to the IJ for further consideration.

On remand, the IJ used information, including evidence from Wikipedia, to conclude that laissez-passer is a single-use, one-way travel document that is issued based on information provided by the applicant. On this basis, the IJ concluded that the Ethiopian government's issuance of the travel document did not change her prior decision regarding Badasa's failure to prove her identity and denied the application for asylum, and the BIA affirmed.

Badasa then appealed to the Eighth Circuit, which reversed, finding that:

     "Wikipedia describes itself as 'the free encyclopedia that anyone can edit,' urges readers to '[f]ind something that can be improved, whether content, grammar or formatting, and make it better,' and assures them that '[y]ou can't break Wikipedia,' because '[a]nything can be fixed or improved later....' Wikipedia's own 'overview' explains that 'many articles start out by giving one-perhaps not particularly evenhanded-view of the subject, and it is after a long process of discussion, debate, and argument that they gradually take on a consensus form....'  Other articles, the site acknowledges, 'may become caught up in a heavily unbalanced viewpoint and can take some time-months perhaps-to regain a better-balanced consensus....' As a consequence, Wikipedia observes, the website's 'radical openness means that any given article may be, at any given moment, in a bad state: for example, it could be in the middle of a large edit or it could have been recently vandalized.'"

Based upon these factors, the Eighth Circuit found that the IJ improperly relied upon the evidence from Wikipedia and that it was impossible to determine whether she would have reached the same conclusion if she had not considered this evidence.  Thus, it granted the petition for review and remanded to the BIA.

Now, this was a case for asylum, so "fairness rather than the rules of evidence govern[ed] the admissibility of evidence." Turn v. Gonzales, 485 F.3d 1014, 1028 (8th Cir. 2007).  Nonetheless, it seems clear to me that a judge would have made the same ruling a case governed by the Federal Rules of Evidence.  Specifically, because there are multiple, unidentifiable authors of each Wikipedia entry, there are hearsay issues with such evidence under Article VIII of the Rules and authentication issues under Article IX.  Furthermore, because Wikipedia itself acknowledges that articles can be biased and "in a bad state," it's very possible that they are substantially more misleading, etc. than probative, violating Federal Rule of Evidence 403.

-CM

Shielded From Justice?: Court Of Appeals Of Mississippi Seemingly Reads Exception Out Of Rape Shield Rule

The recent opinion of the Court of Appeals of Mississippi in Goldman v. State, 2008 WL 4041284 (Miss.App. 2008), contains what seems to me to be a partially correct and a partially incorrect ruling under Mississippi's rape shield rule.  In Goldman, Michael Goldman was convicted of, inter alia, sexual battery and aggravated assault, in connection with acts that he committed against the alleged victim.  At the time of those acts, Goldman was 18 years-old, and the alleged victim was 16 years-old (in Mississippi, age 16 is the age of consent).  Goldman's defense was that the intercourse was consensual. He claimed to have known the alleged victim since he was fifteen years old and testified that they had spent time together at school and at church. 

He also wanted to cross-examine the alleged victim about her past sexual relationship with him and produce evidence from other witnesses to prove that he previously had sex with her.  The controlling Rule on this issue was Mississippi Rule of Evidence 412, which states in relevant part that:

    "(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual offense is not admissible.

     (b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is: * * * 

          (2) Admitted in accordance with subdivision (c) hereof and is evidence of * * *

               (B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which a sexual offense is alleged * * *

     (c) (1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim."

In other words, in a sexual battery case, evidence that the alleged victim engaged in other sexual acts is inadmissible to prove that she had a general propensity to consent to sexual acts and that she likely acted in conformity with that propensity, and thus consented, at the time of the alleged crime.  However, previous sexual acts between the alleged victim and the accused may be admissible to prove that there are specific reasons to believe that she may have consented to the sexual act at issue.  But, in this latter situation, the accused has to comply with the notice requirements of Mississippi Rule of Evidence 412(c)(1) listed above, and the Court of Appeals of Mississippi noted that the trial court properly precluded Goldman from presenting evidence regarding his past sexual relations with the alleged victim because he failed to so comply.  This is the ruling with which I agree.

The Court of Appeals of Mississippi also found, however, that the trial judge properly concluded that such evidence would have been inadmissible even if Goldman complied with the notice requirements of Mississippi Rule of Evidence 412(c)(1) because the evidence was "irrelevant."  The appellate court agreed with this conclusion, noting that, "[a]s we have held before regarding the defense of consent, '[a]ll that was relevant regarding sexual relations at this trial was whether the victim consented to the shocking abuses visited upon him on in question].'" Fuqua v. State, 938 So.2d 277, 283 (Miss.App. 2008).

Now, maybe, the Court of Appeals of Mississippi didn't intend to use such sweeping language and won't use such language or reasoning in subsequent cases in which defendants do comply with the applicable notice provisions.  But it certainly seems to me that the court, in effect, is improperly reading an exception out of the rape shield rule and finding that evidence of prior sexual relations between the defendant and the alleged victim are never admissible.

-CM

The Turncoat CI: 3rd Circuit Corrects Trial Judge's Erroneous Hearsay Ruling In Drug Bust

The Third Circuit's recent opinion in United States v. Green, 2008 WL 4014129 (3rd Cir. 2008), involves a confidential informant going turncoat, the prosecution scrambling to discredit him, and the trial judge bizarrely accepting its left field argument.  In Green, Artega Green was convicted of one count of distribution of more than 50 grams of cocaine base in violation of 21 U.S.C. Section 841.  Instrumental in this conviction was an audio recording in which a CI, Michael Brown, called a cell phone number "associated with" Green and ordered 3 ounces of cocaine base, and a video in which the CI allegedly engaged in a drug transaction with Green.  The video, however, was of relatively low quality and only briefly depicted the profile of the alleged perpetrator; thus, key to the defense's case was to cast doubt as to whether Green was in fact the person depicted.

And the defense received a windfall when, "[i]n a rather dramatic turn of events," Brown decided to testify for the defense. According to Brown, Green never got out of the car on the day of the buy, and the person depicted on the video selling the drugs was an individual known as "Tex."  Brown also alleged that the DEA agents had used him before in other controlled buys, always with the goal of catching Green on tape selling drugs; however, they were never successful, and were upset at Brown because of this.

Thereafter, over Green's objection, the trial judge permitted the government to "introduce as substantive evidence a statement that Brown purportedly made some 50 minutes following the controlled buy in question, after he was brought back to DEA offices and debriefed by the case agents." (emphasis added).  In the statement, Brown attested that it was Green who sold him the drugs. While defense counsel argued that the statement should not have been admitted under Federal Rule of Evidence 613(b) because Brown had not been given the opportunity to explain or deny it on the witness stand, the trial judge admitted the statement, pursuant to the prosecution's argument, as a present-sense impression under Federal Rule of Evidence 803(1).

On appeal, the Third Circuit reversed.  It noted that Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."  The court then found that Brown's statement did not qualify for admission under this Rule, concluding,

     "While it is true, as the Government notes, that courts have not adopted any bright-line rule as to when a lapse of time becomes too lengthy to preclude Rule 803(1)''s application,...we are nevertheless unaware of any legal authority for the proposition that 50 minutes after the fact may appropriately be considered immediately thereafter.'"

Moreover, the Third Circuit properly noted that

     "Brown's statement in this case is problematic not only because of the lengthy passage of time, but also because the statement was only made after he had been questioned by DEA agents about the details of the transaction the statement purports to describe. This undisputed sequence of events affirmatively indicates that Brown made his statement after he was expressly asked to reflect upon the events in question, and thereby fatally disqualifies the declaration for admission as a present-sense impression."

The court then found Brown's statement was also likely inadmissible under Federal Rule of Evidence 613(b) as a prior inconsistent statement because, as defense counsel noted, he was not given the opportunity to explain or deny it on the witness stand, a requirement under the Rule.  There was no need, however, for the Third Circuit to be equivocal.  As noted, Brown's statement was introduced as substantive evidence, and under Federal Rule of Evidence 613(b), the statement "could have been admissible solely for the purpose of impeaching his previous testimony," not as substantive evidence. Lippay v. Christos, 996 F.2d1490, 1499 (3rd Cir. 1993).

-CM

Can't Stop The Music?: Defendant Files Petition For Writ Of Certiorari In Enya Victim Impact Statement Case

Last December, I posted an entry about a strange California case involving a victim impact statement.  In that case, a jury convicted Douglas Oliver Kelly of the first degree murder of Sara Weir under the special circumstances of robbery, rape, and with personal use of a deadly weapon. And during the penalty phase of Kelly's trial, after which he was sentenced to death, the court allowed the prosecution to play a 20-minute videotaped victim impact statement with a montage of photographs of Sara Weir's life, narrated by her mother. On appeal to the Supreme Court of California, Kelly claimed that the videotape was unfairly prejudicial.

One of the grounds for his appeal was that the videotape should have been excluded because it was accompanied by Enya music.  The Supreme Court of California attempted to distinguish previous cases where courts had found that videotaped victim impact statements accompanied by music from the Beatles, James Taylor, and Celine Dion were or should have been deemed inadmissible.  According to the Court, a rational line could be drawn because Beatles and James Taylor music is "stirring" and could go "beyond what the jury might experience by viewing still photographs of the victim or listening to the victim's bereaved parents" while the Enya music in the video in Kelly's case was "generally soft, not stirring," with most of the words unrecognizable. 

Well, according to SCOTUSblog, Kelly has now filed a petition for writ of certiorari to the Supreme Court (SCOTUSblog has the impact statement on its site).  In that petition, he has claimed that "courts have 'held the line' against the introduction of tapes containing both background music and extensive video footage or collections of photographs....The petition also contends the inclusion of background music serves no purpose beyond heightening the emotional experience of the viewer. Kelly’s attorney cites a 1940 essay in the New York Times in which composer Aaron Copland discussed his score for the movie, Of Mice and Men. 'The quickest way to a person’s brain is through his eye,' Copland wrote, 'but even in the movies the quickest way to his heart and feelings is still through the ear.'  The petition argues that just as background music could not be played during in-court testimony, nor should it be allowed to accompany evidence on videotape."

Meanwhile, in its brief in opposition, California has argued that no genuine conflict exists on the admissibility of victim impact evidence presented on videotape.  According to the state, most courts have admitted such evidence, and those that excluded it relied on state rules of evidence rather than the due process clause.  California has claimed that even if the background music or closing images were irrelevant to the impact on the victim’s family and should not have been admitted, their inclusion did not prejudice the defendant when considered in light of the trial as a whole.

Kelly's petition will be heard on September 29th, and I hope that the Supremes decide to take the case.  As I noted in my previous post, judges seem pretty ill suited to be making decisions about what type of music is too "stirring," and I think that there's a strong argument that any music in victim impact statements is exploitation rather than exposition.

(Hat tip to Ben Winograd of SCOTUSblog).

-CM

The Beads Of One Rosary: New Jersey Court Affirms Convictions Despite Witness' Rosary Beads In Labor Day Case

The recent opinion of the Superior Court of New Jersey in State v. Branin, 2008 WL 3876013 (N.J.Super.A.D. 2008), raised by did not resolve an interesting issue:  Can a witness be forced to remove his or her rosary beads during testimony?  In Branin, the alleged victim claimed that while spending the 2005 Labor Day holiday weekend in the Highlands with her boyfriend, Christopher, he and she went to dinner at a local restaurant.  They were seated at a table behind the defendant, Gary S. Branin, Jr., who knew Christopher as both were Highlands volunteer firefighters.  After dinner, Branin invited Christopher and the alleged victim to join his group, whereupon Branin bought alcoholic drinks for everyone at the table.  Branin and the couple then left for another Highlands bar, and the alleged victim claimed that while they were there, Branin sexually assaulted her.  Branin was subsequently convicted of two counts of second degree sexual assault.

On appeal, Branin claimed that he was prejudiced by the alleged victim's possession of rosary beads during her testimony.  While Branin admitted that there was no New Jersey case supporting his claim that a witness' mere possession of rosary beads is prejudicial, he claimed that such possession "falls within N.J.R.E. 610's prohibition on the admission of religious evidence."  New Jersey Rule of Evidence 610 states that "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced."

So, Branin's argument was ostensibly that the rosary beads were evidence that the alleged victim was a devout Catholic, which could have enhanced her credibility in the eyes of the judge/jurors.  The fatal problem with this argument, however, is that Branin conceded that while he was aware that she had the beads, "the judge could not observe the beads from the bench, no one informed the judge of this, and the judge was not able to take any action to avert their prejudicial effect.  This was problematic at the legal level because it required Branin to prove "plain error" and problematic at the factual level, because, as noted by the appellate court, "in the absence of objection and a relevant record, we do not know what the jurors observed.  In light of this situation, it is unsurprising that the appellate court found that no error was committed.

For me, though, this ruling left an interesting evidentiary issue on the table:  What should a trial judge do when a party objects to a witness carrying rosary beads, wearing a cross, etc.?  Is such "evidence" inadmissible religious evidence under Federal Rule of Evidence 610 and state counterparts, substantially more prejudicial than probative under Federal Rule of Evidence 403 and state counterparts, or permissible?  It would seem that the objecting party would want to make an argument similar to the argument that "compelling" a defendant to wear prison garb violates his right to due process and the presumption of innocence. See, e.g., Felts v. Estelle, 875 F.2d 785 (9th Cir. 1989).  I think the rosary bead argument would be successful, but it would be interesting to see how a court would treat the issue if it were raised.

-CM