EvidenceProf Blog

EvidenceProf Blog's 2nd Annual Halloween Movie Pick: Joe Dante's Homecoming

On the eve of the Presidential election, and with the war still being waged in Iraq, I thought that I would repost a review I wrote back in my DVD reviewing days of a very topical film by one of my favorite horror film directors, Joe Dante.

"Homecoming"

Movie zombies tend to be exaggerations of the "braindead" populace, whether they be the consumerist, Dawn of the Dead variety, flocking to the shopping mall, or the gluttonous, Return of the Living Dead  variety, on the singular quest for "brains, more brains." Joe Dante's entry in the Masters of Horror TV series, "Homecoming," turns this concept on its head, presenting us zombies who seem to have wised up in the grave, becoming (in a sense) a ridiculously idealized version of the democratic citizen, rather than man stripped down to his basest desires. In the process, Dante and writer Sam Hamm have flipped the George Romero script of the social-commentary-posing-as-horror movie and created a more overt social satire with slight horror undertones.

In "Homecoming," the mother of a soldier who died in Iraq asks a Presidential speechwriter on a Larry King Live-esque show why her son had to die when there was seemingly no threat to America. The speechwriter's response is that his one wish is that her son could come back from the dead to proclaim the necessity of the war and his pride in dying for his country. Then, as if Murch were holding a monkey's paw, dead soldiers indeed rise from their graves, weeks before the President (clearly George W. Bush) is up for re-election. Republicans rejoice and Jerry Falwell clone Luther Poole sees this as a godsend; that is, until they realize that these zombies aren't here to toe the company line but, instead, are on an unwavering quest to vote the President out of office for baselessly sending them to their deaths.

Dante is probably the ideal director for this material, having deftly crafted social satires on hot button political issues such as immigration (The Second Civil War) and war -- whose absurdities he exposed in Small Soldiers -- in the past. From The Haunting to Gremlins (and its even better sequel), Dante also deserves his moniker as a "master of horror" but, while there's the requisite zombie carnage here, the film's more like a live action version of D.C. Follies (with Dante's signature wit) than a splatterfest.

In fact, if Michael Moore wanted to make his "Will They Ever Trust Us Again?" into a movie (a la Canadian Bacon), the result might look a lot like Dante's flick, which presents and then lampoons slightly fictionalized versions of Ann Coulter and Karl Rove, who blather on with sound and fury while soldiers are sent to their deaths.

Based on the short story "Death and Suffrage" by Dale Bailey, Hamm's script isn't exactly subtle. In addition, both the cinematography and make-up are suitably low rent, and the acting is broad. In other words, this is exactly the type of B-movie you might expect from a Roger Corman disciple, although with a political focus and ideology that might attract or repel those looking for stock genre thrills.

The 58-minute film is presented in anamorphic 1.77:1 widescreen with Dolby Digital 5.1 sound and contains a spate of special features. The best of the extras include a commentary track by Hamm -- in which he points out the myriad of allusions and references in the film -- an informative 24-minute interview with Dante, a 14-minute Z Channel interview of Dante by Mick Garris, and a 22-minute featurette on Dante's career with insights provided by people as varied as Roger Corman and Corey Feldman (whom Dante directed in another comedy-horror classic, The 'burbs).

Rounding out the extras are three actor interviews, a decent 9-minute behind-the-scenes featurette, a solid 30-minute script-to-screen featurette, and both Bailey's short story and Hamm's script as DVD-ROM supplements.

-CM

Mississippi Mistrial: Judge In Case Against State Trooper Declares Mistrial Despite Invited Error Doctrine

A judge in Mississippi has declared a mistrial in the trial of a state trooper charged with the improper touching or fondling of a child younger than 16 based upon the improper admission of character evidence, despite the fact that the judge found that this error was invited by defense counsel.  In addition to this charge, the defendant,  Richard Dane Davenport, 46, a Mississippi Highway Safety Patrol master sergeant, has been charged in another court with raping the alleged victim.

The drama started early in Davenport's trial, with the opening statement of defense counsel John Zelbst being interrupted twice by potential witnesses, including the alleged victim.  However, these interruptions were not what precipitated the mistrial.

Instead, the mistrial, stemmed from the fact that, before trial, Circuit Judge James T. Kitchens Jr. precluded the introduction of testimony relating to Davenport's alleged rape of the victim, presumably pursuant to Mississippi Rule of Evidence 404(a), which precludes the introduction of evidence of a person's character to prove that he has a propensity to act in a certain manner and that he thus likely acted in conformity with that propensity at the time in question.

During the prosecution's case-in-chief, however, it called the alleged victim to the stand.  And "[t]hree times during cross-examination in response to questions from Zelbst — sometimes multiple, open-ended questions at a time — the witness referred to being raped by the defendant.  Zelbst thereafter moved for a mistrial, and the judge found that, "If you invited the error, you could not complain about the result."   "[O]f the three instances of improper testimony by the witness, [Kitchens] ruled the first two 'invited error.' The third was borderline — if not quite invited, [but] still the result of poorly worded questions."

Now, traditionally, appellate courts invoke the invited error doctrine when a party complains about an evidentiary ruling, and those courts, not wanting to disturb the verdict, reject the appeals, concluding that a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make.  In this case, however, defense counsel raised a motion for mistrial early during trial, and the court found that it should be granted, despite the invited error doctrine, concluding that "because the person that’s on trial here is Mr. Davenport and not Mr. Zelbst, prudence … dictates that I grant the motion (for a mistrial) at this time."

Obviously, this was a difficult call for the judge to make, and, according to the victim's family, it was the very goal of defense counsel to secure a mistrial and delay the proceedings by asking the questions at issue.  That said, unless there was evidence that the defendant directed his attorney to ask these questions, I think that the judge was correct that the defendant should not be punished for his attorney's actions when a mistrial could be declared during the early stages of trial.

-CM

Ladies And Gentlemen Of The Juries: California Court Empanels Rotating Juries In Two Defendant Murder Trial

In a move that calls to mind the infamous Menendez brothers murder trial(s) from the 1990s, two juries have been empaneled in Stanislaus County Superior Court to hear a single murder case involving accuseds Jerry Michael Benge and his nephew, Sean Benge.  The prosecution has alleged that Jerry, now 49, and his 30 year-old nephew are responsible for the shooting death of Steven Glenn Brown in his home outside Ceres.

According to the prosecution, the elder Benge got to know the victim's wife, Katherine when her son started visiting him to learn to care for a pig.  Thereafter, as her children got involved with 4-H, Jerry and she spent more time together.  Indeed, Jerry eventually moved his animals to Brown's home and visited daily to care for them.  But apparently, that's not all that he was doing; instead, according to Katherine, their relationship intensified and "they started twice to have sex but did not continue."

The prosecution claims that Jerry then attempted to get Steven out of the way and "asked his nephew to help him 'get rid of' Steven Brown or 'cause him serious injury.'"  According to this theory, Sean Benge entered Brown's home, waited for him to come home, and then shot and killed him.

So, why are there two juries in the case?  Well, according to an article on the case, "[c]ertain evidence...is admissible against just one of the defendants," meaning that, say, Jury 1 and Jury 2 both hear most of the evidence, but Jury 1 is rotated out when there is evidence that is only admissible against Jerry and Jury 2 is rotated out when there is evidence that is only admissible against Sean. 

And while the article doesn't mention the nature of the evidence, it does mention that Jerry apparently confessed to detectives.  And if that confession at least partially implicated Sean and Jerry chooses not to testify at trial, the jury hearing Sean's case would not be able to hear that confession pursuant to the Confrontation Clause and the Supreme Court's opinion in Bruton v. United States, 391 U.S. 123 (1968).

Also according to the article on the case, this is "the first time a Stanislaus County courtroom has used two juries in a single courtroom,...though courts in Sacramento and Los Angeles [such as in the Menendez brothers case] have used the method."  According to court spokesman Michael Tozzi, "[t]he benefit is that it allows witnesses to testify once, rather than in two cases. Also, Tozzi said, the case could last six to eight weeks, so the judge and attorneys agreed a two-jury solution would be more efficient."

I agree with these observations, but despite similar claims at least as early as 1993, I get the sense that most courts are like the courtroom in Stanislaus County in that they have used the rotating juries procedure rarely, if at all. 

-CM

Hold On To My Receipt: Seventh Circuit Finds Photos & Receipt Were Properly Admitted In Weapons Appeal

The recent opinion of the Seventh Circuit in United States v. Miller, 2008 WL 4694925 (7th Cir. 2008), contains a few interesting evidentiary rulings.  In Miller, Leroy Miller took in Ricky Fines as a boarder at his farm, and they allegedly bought, refurbished, and sold many weapons while Fines lived in Miller's house.  When federal agents conducted a search of Miller's farm in April 2004, they found three weapons in the house and 31 in a shed nearby.  A jury subsequently convicted Fines, a former felon, of possessing weapons despite his prior conviction, in violation of 18 U.S.C. Section 922(g)(1) and Miller of aiding and abetting Fines' illegal possession.

On his appeal, Fines raised two arguments.  First, he claimed that the trial court erred in admitting two pictures of him, saluting, while sitting in a chair under a gun rack.  He argued that these pictures did not depict the condition of the room when the agents searched it.  The Seventh Circuit, however, found this argument to be "beside the point," because Fines would be

     "guilty if he possessed guns any time during five years (the period of limitations) before the indictment. The pictures are relevant because they show that guns and Fines were in the room together, which supports an inference that he possessed them."

I agree with the Seventh Circuit on the relevance point, and, assuming that a witness with knowledge authenticated the photograph by testifying that they accurately depicted Fines at some point in the five years before the indictment, see United States v. Richardson, 562 F.2d 476, 479 (7th Cir. 1977), they were properly admitted.

Fines also claimed that the trial court erred in admitting a folder of receipts showing that Fines had ordered and paid for gun parts.  The Seventh Circuit again disagreed, finding that

     "[t]he receipts were hearsay if offered for the truth of the sellers' (implied) assertions that the parts had been delivered as ordered, but to the extent they embodied Fines's statements they were admissible under Fed.R.Evid. 801(d)(2) as admissions, and to the extent that they reflected the sellers' business records they were admissible under Fed.R.Evid. 803(6)."

Starting with this last conclusion, Federal Rule of Evidence 803(6) states in relevant part that:

     "A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness."

Most courts have found that receipts are admissible under Federal Rule of Evidence 803(6). See, e.g., United States v. Brown, 9 F.3d 907, 911 (11th Cir. 1993) (finding a property receipt for a gun to be admissible as a business record).  This rulings seem logical to me, and thus, assuming that the receipt was properly authenticated, it was properly admitted.

The most interesting question for me, however, is whether the receipt could have been admitted as an admission under Federal Rule of Evidence 801(d)(2).  And, to my surprise, many courts have found that a party's mere possession of a receipt constitutes an adoptive admission under Federal Rule of Evidence 801(d)(2)(B), which indicates that "[a] statement is not hearsay if...[t]he statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth." See, e.g., United States v. Paulino, 13 F.3d 20-24 (1st Cir. 1994) (citing cases).  Other courts have adopted a "possession plus" approach, under which possession of a receipt constitutes an adoptive admission "so long as the surrounding circumstances tie the possessor and the document together in some meaningful way." Id.

I disagree with either approach.  Why?  Well, here's an example of a classic adoptive admission.

    -William and Dan are talking with Fred at 2:00 on October 25th when William says that Dan just shot Vince in Skokie.  Dan says nothing in response.  Dan has in effect, adopted William's statement.

And the reason he is deemed to have adopted it is that because "an innocent defendant would have responded in order to deny the statements made rather than acquiescing in such statements by remaining silent after hearing and understanding those statements." United States v. Lafferty, 503 F.3d 293, 305 (3rd Cir. 2007).

Conversely, if William merely said, "Dan and I just came from Skokie," and Dan were now on trial for murdering Vince in Skokie at 1:30 on October 25th, Dan would not be deemed to have adopted William's statement.  And the reason would be that William's statement was seemingly innocuous and not overtly incriminatory.  In other words, Dan could have known that William and he had just come from Evanston but might not have felt the need to correct William, in contrast to his apparent need to correct the statement that he just shot someone if it were untrue.

And I think the same applies to receipts.  I don't think that most people feel the need to correct incorrect receipts, and I don't think that merely retaining a receipt constitutes an adoption of its contents.  Heck, I just bought a vegetarian burrito at Chipotle this weekend and they rang it up as a chicken burrito.  However, because the two burritos cost the same (actually, the veggie burrito used to cost less before Chipotle raised prices in response to the economy), I didn't say anything because it didn't seem important to correct the cashier.  And while one might say that a receipt for a burrito is non-incriminatory while a receipt for gun parts is somewhat incriminatory (at least for a prior felon), another question to ask is how often people actually look at receipts to verify their accuracy.  My asnwer would be "not very often," and I thus don't see how mere retention of a receipt constitutes an adoption of its contents.

-CM

Check Out The New Animal Blawg

Congratulations to Pace Law School Professors David N. Cassuto and Luis Chiesa as well as Pace law student Suzanne McMillan, who recently launched Animal Blawg.  As they note in their introductory post on the blog:

     "This blog's scope is intended to be braod, encompassing both legal issues affecting animals and legal issues reflecting animals' situations.  It purports to examine current case law and statutes, as well as the ethical and jurisprudential issues arising from how animals are treated in one of any number of situations.  Thus, it presents not only substantive information, but also food for thought."

That post also addresses the topicality of this new blog by noting that:

     "Animal law in the United States has grown over the last couple of decades from a virtual unknown to being one of the faster-growing areas of legal scholarship and practice.  It is now being offered on the menu of every Ivy League law school in the nation.  Judges increasingly find themselves presiding over cases involving issues of animal treatment, and demand is rising for lawyers who handle such cases.  Increasingly, animal law is taken seriously in the professional world, making it ever more important for law students and practitioners to familiarize themselves with its basics and stay abreast of its developments."

I have found these observations to be accurate, with animal law presentations being heavily attended both at my previous job at the Appellate Division of the Supreme Court of New York and my current job at the John Marshall Law School (Indeed, to toot my own law school's horn, JMLS students recently finished 1st and 2nd at the Animal Law Advocacy Closing Argument Competition at Harvard Law School).  And it would seem that if you want intelligent writing about animal law, Animal Blawg would be the place to get it.  Professor Chiesa has a forthcoming article entitled Why is it a Crime to Stomp on a Goldfish, and Professor Cassuto co-edited Animal Law and the Courts, wrote the chapter Animal Sacrifice and the First Amendment for that book, and wrote the article Bred Meat: The Cultural Foundation of the Factory Farm .

The blog already contains several interesting posts, including one about California's controversial Proposition 2, and I am sure that several more interesting posts will follow.

-CM      

Dead Man Talking: Story By Fordham Professor Indicates That Court In Old Maryland Case Allowed Witness To Testify About What A Ghost Told Him

As I have noted before,

     "Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate.  The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims.  Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury."

So, for instance, Maryland has a Dead Man's Statute in Section 9-116 of the Courts and Judicial Proceedings Article of the Maryland Code, which states that:

     "A party to a proceeding by or against a personal representative, heir, devisee, distributee, or legatee as such, in which a judgment or decree may be rendered for or against them, or by or against an incompetent person, may not testify concerning any transaction with or statement made by the dead or incompetent person, personally or through an agent since dead, unless called to testify by the opposite party, or unless the testimony of the dead or incompetent person has been given already in evidence in the same proceeding concerning the same transaction or statement."

But, Maryland's Dead Man's Statute is part of a dying breed.  Most states have repealed their Dead Man's Statutes, see e.g., Wesley P. Page, Dead Man Talking, 109 W. Va. L. Rev. 897, 898 (2007), which begs the question of whether Maryland will follow suit in the near future.  According to a story by Fordham University History Professor Elaine Forman Crane, however, a case from Maryland's past reveals that the state apparently did not always need this statute.

     The story involved Thomas Harris, a farmer from Queen Anne's County in Maryland, who had four illegitimate children with his lover, Ann Goldsborough. Harris' will said that when he died, his brother was to sell all of Harris' property and give the money to his children, but the brother kept the cash. That's when, according to William Briggs, Harris' best friend, Harris' ghost met with him and told him to tell the brother that the money should go to Harris' children.  Apparently, Briggs then relayed this message to the brother, but the brother died before the money was transferred, and the brother's wife did not want to cough up the money.  A lawsuit ensued, and, according to Crane's story, the court allowed Briggs to testify regarding his encounters with Harris' ghost, whom he claimed spoke in a low, sometimes incoherent voice.

According to the story on Crane's story,

     "[t]he case's depositions, filings and judgment are nowhere to be found, so it's not exactly clear how the courts decided this spooky case. But the story gathered some steam a decade later in the national political scene when the Federalists revived the case to disgrace the opposing Republican party."

Courts who still have their Dead Man's Statutes often defend them on the ground that they protect the deceased, who cannot speak from the grave.  If Crane's story was accurate, however, that is exactly what the Maryland court allowed, which would obviate the need for such a statute.

-CM

Cruel Intentions?: Third Circuit Makes Seemingly Erroneous Rule 704(b) Ruling In Drug Trafficking Appeal

Federal Rule of Evidence 704(b) states that:

     "No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."

As I have noted before, the Rule was enacted as a result of the Insanity Defense Reform Act of 1984, which in turn was prompted by the public outrage in response to the insanity defenses of Mark David Chapman and John Hinckley, Jr.  As is clear from its language, however, although Rule 704(b) was "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," courts have since found that it "applies to all instances in which expert testimony is offered as to the mental state or condition constituting an element of the crime charged or defense thereto," often to the detriment of prosecutors. United States v. Boyd, 55 F.3d 667, 671 (D.C. Cir. 1995). 

Of course, that has led prosecutors to try to walk an evidentiary tightrope with their expert witnesses, who now clearly imply in their testimony that the defendant acted intentionally or with premeditation but do so without using those words.  But at some point, those experts cross the "[fine] line that expert witnesses may not cross," United States v. Watson, 260 F.3d 301, 309 (3rd Cir. 2001), and I think that an expert did so in a recent federal case in Pennsylvania, despite the Third Circuit's opinion to the contrary.

In United States v. Farrish, 2008 WL 4672128 (3rd Cir. 2008), Marcel Farrish appealed from his convictions for (1) possessing with intent to distribute five or more grams of cocaine base in violation of 21 U.S.C. Section 841(a)(1) and (b)(1)(B)(iii); (2) using or carrying a firearm during and in relation to any drug trafficking crime or, in furtherance of any such crime, possessing a firearm in violation of 18 U.S.C. Section 924(c)(1)(A); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g)(1).

The facts of Farrish were as follows: On the night of March 27, 2004, three City of Pittsburgh police officers came across a car idling in front of a "no parking" street sign.  Detective Edward Fallert noticed the man sitting alone in the driver's seat of the car, later identified as Farrish, grab something from his lap, place it in his mouth, and start chewing rapidly.  Detective Fallert believed Farrish was in possession of and attempting to destroy contraband, so he asked Farrish what he was chewing, and Farrish responded that it was a "bag of weed."  Fallert asked Farrish to open his mouth, Farrish complied, and Detective Fallert noticed green, leafy matter in Farrish's mouth, which he believed based on his experience as a police officer to be marijuana.  Fallert asked Farrish to exit the vehicle and arrested him for possession of a controlled substance and tampering with evidence.  Farrish gave his name, but stated that he lacked identification because his driver's license was suspended and told the officers that the car belonged to his girlfriend.

Police thereafter arranged for a tow service to impound the car, whereupon the police performed a warrantless inventory search of the vehicle and its contents.  In the trunk, they discovered 88 knotted plastic baggies containing crack cocaine, a fully loaded 9-millimeter semiautomatic gun, and a baggie with 30 loose 9-millimeter rounds. The crack cocaine weighed 15.32 grams and had an approximate street value of $1,700.

At trial, the prosecution called an expert witness (who unfortunately is not identified by title in the Third Circuit's opinion), who testified "as to whether the quantity of drugs in the trunk indicated intent to sell and whether the proximity of the gun to the drugs indicated intent to use the gun in conjunction with drug trafficking."  And according to the expert, "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs." (again, unfortunately, the Third Circuit's opinion doesn't list the specific testimony of the witness).

Now, it seems pretty clear to me that the expert's testimony violated Rule 704(b).  So, why did the Third Circuit find to the contrary during Parrish's appeal?  Well, according to the court, "We have held that '[e]xpert testimony is admissible if it merely supports an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury.' United States v. Watson, 260 F.3d 301, 309 (3d Cir. 2001).'  If this citation were accurate, the Third Circuit would have been correct because, ostensibly, the expert didn't literally say that Farrish had the requisite intent.

The citation from Watson, however, seemed to me to present an unreasonably narrow construction of Rule 704(b), so I went to that opinion and found that the Third Circuit was engaging in selective citation.  The full quote from Watson reads, "Expert testimony is admissible if it merely 'support[s] an inference or conclusion that the defendant did or did not have the requisite mens rea, so long as the expert does not draw the ultimate inference or conclusion for the jury and the ultimate inference or conclusion does not necessarily follow from the testimony.' United States v. Bennett, 161 F.3d 171, 183 (3d Cir.1998) (quoting United States v. Morales, 108 F.3d 1031, 1038 (9th Cir.1997))." (emphasis added).

In other words, the Third Circuit cut off the last clause of the quote, the part which states that expert testimony violates Rule 704(b) if the conclusion that the defendant had the requisite mens rea necessarily follows from the expert's testimony.  And the reason the court did so seems clear to me, with the reason being that it also seems clear to me that the conclusion that Farrish had the requisite mens rea necessarily followed from the expert testimony that "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs."

So, notwithstanding this selective citation, could the Third Circuit's opinion have been correct?  Well, according to the court in Farrish, the expert's testimony was proper because "[i]t is well established that experts may describe, in general and factual terms, the common practices of drug dealers. See Boyd, 55 F.3d at 671 (citing cases)."  As with Watson, this led me to the opinion in United States v. Boyd, 55 F.3d 667 (D.C. Cir. 1995), to check its accuracy.  And once again, I was underwhelmed.

In general, the Third Circuit's citation to Boyd was accurate in that the court found that experts can render general factual testimony concerning the common practices of drug dealers:  "For example, a Government expert may testify about the significance of drug packaging,...the uses of various drug paraphernalia,...the street value of narcotics,...or the various roles that individuals might play in a typical drug distribution network."  Of course, none of these types of testimony directly bears upon intent/mens rea, so the question becomes whether Boyd mentioned any such cases.  And the answer is that it did.

The D.C. Circuit cited to its previous opinion in United States v. Mitchell, 996 F.2d 419 (D.C. Cir. 1993), in which the following expert testimony was rendered:

     Q: Now, what, if anything, does the packaging of that crack cocaine into nine individual ziplocks tell you about the intent of the person that was carrying those ziplocks?

     A: It was intent to distribute. * * *

     Q: Why are you able to say that the person in possession of those nine individual ziplocks, $50 rocks of crack cocaine, has the intent to distribute them?

     A: As I stated earlier, the packaging is consistent with the way crack cocaine is packaged for street-level distribution."

The D.C. Circuit found that, in contrast to general factual testimony concerning the common practices of drug dealers, this testimony violated Rule 704(b) because the expert's testimony "that 'it was intent to distribute', pointed much more directly to the mental state of 'the person that was carrying those ziplocks.'"

And as noted, the expert testimony in Farrish was nearly identical; according to the expert, "the facts and circumstances surrounding Farrish's behavior were 'indicative' of someone who had the intent to deliver drugs."  Therefore, I don't see how the Third Circuit could have found that the expert's testimony in Farrish was proper under Rule 704(b). 

-CM

Twin Falls Idaho: Court of Appeals Of Idaho Grapples With Co-Conspirator Admissions Questions In Drug Ring Appeal

The recent opinion of the Court of Appeals of Idaho in State v. Rolon, 2008 WL 4659863 (Idaho.App. 2008), contains an interesting discussion of two issues raised by the co-conspirator admission rule.

In Rolon, Antonio Vasquez Rolon appealed from his convictions for conspiracy to traffic in more than 28 grams of heroin and for conspiracy to traffic in more than 28 grams of cocaine.  At trial, the prosecution had relied heavily upon the testimony of Carlos Ortiz, who testified concerning statements made to him by Rolon's alleged co-conspirator, a man known by the name "Chaleco."

Ortiz specifically testified, inter alia, that

     -he was invited by Chaleco to join him in dealing drugs;

     -thereafter, Chaleco took him to a restaurant, telling him that he was going to meet "the boss," who Ortiz later identified as Rolon;

     -Chaleco had told him that another alleged member of the drug ring, "Cumbia," traveled to Utah to obtain heroin and cocaine from Rolon and that during these trips, Rolon would follow Cumbia in a different vehicle to ensure that "everything was running alright."

When Rolon objected to this testimony, the trial judge overruled the objection, finding that Chaleco's statements "clearly fell within the hearsay rule exception for the statements of a co-conspirator."

On appeal, Rolon claimed, inter alia, that the trial judge erred in allowing Ortiz to testify about Chaleco's statements because the only evidence that there was a conspiracy between Chaleco and himself were Chaleco's statements themselves.  And if his case were being heard under the Federal Rules of Evidence, his argument would have been legally correct.  Under Federal Rule of Evidence 801(d)(2)(E), "[a] statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."  Rule 801(d)(2) also provides, however, that "[t]he contents of the statement shall be considered but are not alone sufficient to establish...the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E)."

However, while Idaho does have a counterpart to this federal co-conspirator admission rule in Idaho Rule of Evidence 801(d)(2)(E), it does not have a corresponding final sentence in Idaho Rule of Evidence 801(d)(2) indicating that the alleged co-conspirator's statements alone are insufficient to establish the conspiracy.  Rolon raised the argument that the court should apply a similar limitation, but the court found that it did not need to reach this argument because there was evidence beyond Chaleco's statements establishing a conspiracy.  Specifically,

     "the state introduced evidence of Rolon's visits to several residences in the Treasure Valley associated with the conspiracy and particularly of one occasion wherein Rolon was observed leaving one of the residences and going directly to the bank to deposit $1,000. Other corroborating evidence disclosed that his name was found on documents in the Nampa residence; that titles to three vehicles connected to the conspiracy were found in his vehicle; that there was an inordinately high level of phone contact between Rolon and the other members of the conspiracy; and that documents found catalogued the drugs being transported from Utah to Idaho."

A second argument raised by Rolon on appeal was that Chaleco's statements did not qualify as co-conspirator admissions because they were not made "in furtherance" of the conspiracy.  And the Court of Appeals of Idaho noted that there was a circuit split on this issue.  It noted that some courts, such as the Sixth and Eighth Circuits, find that statements are made "in furtherance" of a conspiracy even when they merely "identify participants and their roles in the conspiracy," presumably even if they are part of "idle conversation."  Conversely, it noted that some courts, such as the Supreme Court of Kentucky, have found that "a determining factor is whether a statement in any way assists or advances the objectives of a conspiracy-otherwise such a statement is not 'in furtherance' as prescribed by the rule."

Meanwhile, the Court of Appeals of Idaho decided to take the middle ground of the Ninth Circuit, which has

     "allowed the admittance of testimony defining co-conspirators' roles as being in furtherance of a conspiracy, but, unlike the Sixth and Eighth Circuit cases discussed above, has not allowed their admission in all circumstances. Rather, the Court has distinguished between those that are a product of 'idle conversation' and those made with the intent to further the conspiracy."

The court then applied this standard and concluded that Chaleco's

     "statements were made 'in furtherance' of the conspiracy. Specifically, both comments were made after Ortiz had agreed to join the drug ring and were part of his 'orientation' as they explained the operations and roles of the conspiracy. Ortiz, while perhaps considered less invested in the drug ring, was nonetheless distributing drugs daily and collecting cash, all for remuneration. He received compensation of $2,000 per month, all expenses paid, some amounts of drugs for personal use, and use of cell phones and vehicles. It is natural and necessary that Chaleco would identify Rolon's role in the operation. Ortiz, who subsequently received frequent telephone calls from Rolon, was not so far removed from the details of the operation that Chaleco's identification of Rolon as the source of the drugs would be 'idle conversation.' Thus, we conclude the district court did not err in admitting the statements under the conspiracy hearsay exception."

I'm not quite sure of the distinction between the approach of the Ninth Circuit (and now the Court of Appeals of Idaho) and the approach of the Supreme Court of Kentucky, but I agree that the approaches of the Sixth and Eighth Circuits allow for the admission of too many statements as co-conspirator admissions.  And I would say that Chaleco's statement likely did qualify as co-conspirator admissions under any of the three constructions of the phrase "in furtherance."

-CM

Area of Expertise: Court Of Appeals Of Texas Finds Trial Court Made Improper Expert Witness Ruling In Priest Sexual Abuse Case

Generally, courts have been exceedingly liberal in finding witnesses to be qualified as an expert witness, but the recent opinion of the Court of Appeals of Texas in Teczar v. State, 2008 WL 4602547 (Tex.App.-Eastland 2008), reveals that there are limits to this liberalism.

In Teczar, Thomas H. Teczar was convicted of three offenses of aggravated sexual assault of a child and one offense of indecency with a child.  Teczar was a priest at Saint Rita's Catholic Church in Ranger, Texas from the later 1980s until early 1993, and the alleged victim was Billy Ray Swiney, who was eleven years old when he moved with his mother and sister into a house across the street from the church in 1990.  The prosecution also contended that Teczar committed numerous uncharged acts of child sexual abuse, including sexual abuse against David Lewcon when Lewcon was a child.

At Teczar's trial, however, Lewcon did not solely testify as a lay witness concerning these alleged acts of abuse; he also testified as "an expert on the psychology and behavior of those who commit child sexual abuse and their victims."  Specifically, he testified "in some detail about the psychology of child sexual abuse, including the methods and practices of those who commit such abuse, the consequential psychological consequences for the victims, and the reasons why victims such as Swiney might be reluctant to make outcry about such abuse especially from an authority figure such as a priest."  And after he was convicted, Teczar appealed, contending, inter alia, that both Lewcon's lay and expert testimony was improperly received.

First, with regard to Lewcon's expert testimony, the Court of Appeals noted that:

     "In support of his expertise, Lewcon averred that he was a member and cofounder of the New England Chapter of the Survivors Network of those Abused by Priests (SNAP). He also was a founder and member of a small nonprofit organization called Advocates for Change. It is an organization that raises funds for efforts to assist clergy abuse victims or efforts in organizing seminars. At one time, he was listed on the SNAP website as a victim advocate and was available to consult with other victims of sexual abuse by priests. In that role, he consulted with more than 500 such victims.

     Lewcon also testified that he was a coactive coach, which he defined as someone who has acquired some skills through seminars to be able to be more effective in identifying with clergy abuse victims. Moreover, he had operated a suicide hotline and had consulted with 'between 50 to 100' on that line. Lewcon had additionally been a victim of clergy abuse. He had also taken seminar courses through a company by the name of Coaches Training Institute that offered courses in 'how to be more effective on the subject of coaching.' He spent five weekends in taking those seminars, which cost him a total of $4,000. He studied 'mostly liberal arts courses' in college and had studied only the 'first level' of psychology, which, he said, was lower than Psychology 301. He had never received or applied for any kind of license as an expert on clerical abuse of children."

The Court of Appeals found these credentials formed an improper foundation to support Lewcon's expert testimony, and, notwithstanding the fact that courts have generally been exceedingly liberal in finding witnesses to be qualified as an expert witness, I think that I agree with its decision.  The court noted that the "seminal" Texas precedent on this issue was the recent opinion of the Texas Court of Criminal Appeals in Vela v. State, 209 S.W.3d 128 (Tex.Crim.App. 2006), which held, inter alia, that the "the expert's background must be tailored to the specific area of expertise in which the expert desires to testify."

And, according to the Court of Appeals, while Lewcon had experience in dealing with victims of child abuse, he didn't have the requisite background in psychology to be able to deliver the detailed psychological testimony he rendered at trial.  In other words, the court's opinion in Teczar is not a repudiation of the general rule that even the Mona Lisa Vitos of the world can be qualified as expert witnesses; instead, it merely recognizes that an expert witness' experience must match his testimony.   

The Court of Appeals thus found that the trial court erred in admitting Lewcon's expert testimony and reversed and remanded.  The Court of Appeals also found that the trial court erred in admitting evidence (including Lewcon's testimony) regarding Teczar's numerous uncharged acts of child sexual abuse, which the trial court had admitted under Texas Rule of Evidence 404(b) to prove identity.  The appellate court correctly found that this was error because Teczar's

     "identity was not really a disputed issue in the case. The defense did not claim, nor does the evidence suggest, that Swiney was not acquainted with [Teczar] prior to the time of the alleged offenses or that they were committed under circumstances that made it difficult or impossible for him to identify the person abusing him."

-CM

We're Not (Available) In Kansas Anymore: Supreme Court of Kansas Adds To Definition Of Unavailability In Battery Appeal

The recent opinion of the Supreme Court of Kansas in State v. Jefferson, 2008 WL 4601295 (Kan. 2008), reveals that there was a significant difference between the Kansas Rules of Evidence and the Federal Rules of Evidence on the issue of when a declarant is "unavailable." As a result of Jefferson, however, that distinction no longer exists.

In Jefferson, Anthony Jefferson appealed from his conviction for aggravated battery.  Jefferson's conviction was based in part upon the testimony of Jesse Villa, Jefferson's neighbor, who testified against him at a preliminary hearing.  Villa was subsequently subpoenaed to testify at Jefferson's trial, but, by that time he was incarcerated, and although he appeared, he refused to testify.  Villa claimed no privilege, and he maintained that he had not been threatened.  He said he was not afraid to testify; he simply refused to do so.  The judge held him in contempt and sentenced him to 6 months in jail. 

He also admitted Villa's testimony from the preliminary hearing pursuant to K.S.A. 60-460(c), its counterpart to Federal Rule of Evidence 804(b)(1), the former testimony exception the rule against hearsay.  And like Federal Rule of Evidence 804(b)(1), K.S.A. 60-460(c) requires that a declarant be "unavailable" at trial before his former testimony can be admitted.

However, while Federal Rule of Evidence 804(a)(2) defines a declarant who "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so" as "unavailable," K.S.A. 60-459(g) does not define such a witness as "unavailable."  Instead, K.S.A. 60-459(g) states that:

     "Unavailable as a witness" includes situations where the witness is (1) exempted on the ground of privilege from testifying concerning the matter to which his or her statement is relevant, or (2) disqualified from testifying to the matter, or (3) unable to be present or to testify at the hearing because of death or then existing physical or mental illness, or (4) absent beyond the jurisdiction of the court to compel appearance by its process, or (5) absent from the place of hearing because the proponent of his or her statement does not know and with diligence has been unable to ascertain his or her whereabouts.

As I have noted before, however, courts have generally found that the enumerated definitions of "unavailability" in their rules of evidence are not exhaustive, and that its exactly what the Supreme Court of Kansas did in addressing Jefferson's appeal.  It found that:

     "the plain language of K.S.A. 60-459(g) permits situations other than those listed to equal witness unavailability....This brings us to the question of whether Villa's situation or circumstances, i.e., his refusal to testify in this case, qualified him as 'unavailable' under K.S.A. 60-459(g)The answer is yes. There was no practical distinction between Villa and any of the out-of-court declarants described in K.S.A. 60-459(g). His live testimony was just as inaccessible and just as necessary. His late-blooming reticence, likely generated by events that had transpired between Jefferson's preliminary hearing and trial, should not be permitted to undermine the court's truth-finding purpose."

As in a similar case in Colorado, I am a bit uneasy with this result, but I'm not ready at this point to endorse or criticize this practice.

-CM

After The Enactment, Take 2: California Appellate Court Finds Retroactive Application Of Corroboration Change Violates Ex Post Facto Clause

I've had two previous opportunities on this blog (here and here) to express my dissatisfaction with the way that the Supreme Court has defined the fourth type of law which cannot be applied retroactively under the Ex Post Facto Clause of the Constitution.  And yet, while I am dissatisfied with the Court's definition, it has produced some desirable side effects, as is clear from a recent opinion by a California appellate court.

In People v. Chavez, 2008 WL 4615950 (Cal.App. 2 Dist. 2008), Jorge Ricardo Chavez appealed from his conviction of one count of a lewd act upon a minor. The alleged incidents leading to Chavez's conviction occurred between March 1986 and March 1998, the victim made the allegations in May 2006, and the complaint against Chavez was filed within one year of the report to police. 

The statute of limitations for the charged offense was eight years, meaning that the complaint against Chavez ordinarily would not have been timely.  However, at both the time of Chavez's alleged offense(s) and thereafter, California Penal Code Section 803(f)(1) provided that this limitations period could be extended if the jury found that:

     (1) the crime was reported to law enforcement and a complaint was filed within one year of the date of the crime being reported, (2) the statute of limitations had expired as to the crime, (3) the crime involved substantial sexual conduct, and (4) there was independent corroboration of the crime.

The Ex Post Facto Clause issue in Chavez was that at the time of Chavez's alleged offense(s), the statute of limitations would only be extended if the jury found independent corroboration of the crime by clear and convincing evidence.  After Chavez's alleged offense(s), however, California lowered the burden of proof under factor four and now only requires the jury to find independent corroboration of the crime by a preponderance of the evidence.  And it was this latter burden of proof that the trial court applied in Chavez and which prompted Chavez's appeal after his conviction.

In addressing this argument, the Court of Appeal, Second District, noted that in Calder v. Bull, 3 U.S. 386, 390 (1798), the Supreme Court found that the Ex Post Facto Clause proscribes the retroactive application of four types of laws: 

     "(1) laws which criminalize and authorize punishment for acts which were innocent when done; (2) laws which aggravate a crime or make it greater than when it was committed; (3) laws which inflict a greater punishment than the law annexed to the crime when committed; and (4) '[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'"   

The Court of Appeal then noted that in Carmell v. Texas, 529 U.S. 513 (2000), the defendant was convicted of several sex-related crimes against his stepdaughter, who during some of the acts was 14 years-old or older.  When these alleged acts occurred, the Texas statute criminzalizing them indicated that a defendant could not be convicted under the statute for sexual crimes against a minor 14 years-old or older solely based upon the testimony of the alleged victim; instead, there had to be some other evidence corroborating the alleged victim's testimony.  Before the defendant's trial, however, Texas amended the controlling statute so that it no longer required corroboration.

After trial, the defendant was convicted despite the fact that the stepdaughter's testimony was not corroborated.  The defendant's appeal eventually reached the United States Supreme Court, which held that application of the amended statute violated the ex post facto clause because it changed the quantum of evidence that was legally sufficient for a conviction.  The Court then contrasted the Texas statute from the rules of evidence.  It held that "[o]rdinary rules of evidence, for example, do not violate the Clause....Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption."

I won't again repeat my arguments as to why it makes no sense not to include laws that alter ordinary rules of evidence in the definition of "[e]very law that alters the legal rules of evidence."  But what I will note is that it is clear from Carmell v. Texas that a nice side effect from the opinion is that it is now clear that laws which remove or change corroboration requirements cannot be retroactively applied under the Ex Post Facto Clause, and that is exactly why the Court of Appeal found that the trial court erred in Chavez.  Nonetheless, because the Court of Appeal found that testimony by the alleged victim's sibling satisfied both the preponderance of the evidence and clear and convincing evidence standards, it found that the error was harmless and affirmed Chavez's conviction.

-CM

You're Never (Un)Available: First Circuit Finds Defendant Can't Create His Own Unavailability For Rule 804 Purposes

The recent opinion of the First Circuit in S.E.C. v. Ficken, 2008 WL 4615797 (1st Cir. 2008), reflects the conventional wisdom that a defendant does not receive the benefit of the Rule 804 hearsay exceptions when he creates his own "unavailability" by claiming his Fifth Amendment right against self-incrimination.  In Ficken, the SEC filed a civil complaint against Justin F. Ficken (“Ficken”) and others, alleging violations of 15 U.S. C. Section 77q(a), 15 U.S.C. Section 78j(b), and 17 C.F.R. Section 240.10b-5.  Specifically, the SEC alleged that Ficken intentionally concealed his identity and the identities of his clients while trading shares of mutual funds, in order to mislead mutual fund companies into processing trades that they otherwise would not have allowed.

The district court granted the SEC's motion for summary judgment against Ficken after precluding him from presenting his exculpatory testimony given during an investigation proceeding conducted by the National Association of Securities Dealers ("NASD"), a private self-regulatory organization (now succeeded by the Financial Industry Regulatory Authority) with regulation and enforcement authority over securities firms under 15 U.S.C. Section 780-3.  In addition to rendering this exculpatory testimony, however, Ficken also asserted his Fifth Amendment privilege or otherwise refused to answer questions regarding blocked customer account numbers.  Ficken again invoked his Fifth Amendment right against self-incrimination during the SEC proceeding and then sought to introduce his prior exculpatory testimony under the former testimony exception to the rule against hearsay.  The district court, however, found that this testimony was inadmissible hearsay, and the First Circuit affirmed. 

The First Circuit noted that for the former testimony exception to apply, Ficken first had to be "unavailable" as defined in Federal Rules of Evidence 804(a)(1)-(5).  And indeed, Ficken satisfied Federal Rule of Evidence 804(a)(1), which states that a declarant is "unavailable" when he "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement."  The First Circuit found, however, that "[a]lthough this circuit has held that a witness invoking his Fifth Amendment privilege is unavailable under Rule 804,...this likely does not extend to defendants who create their own unavailability."  As support for this argument, the First Circuit noted that "[o]ther circuits [including the 4th and 5th Circuits] have specifically held that a defendant does not become unavailable simply because he asserts his Fifth Amendment privilege." 

This ruling makes sense to me.  The Rule 804 hearsay exceptions exist so that a party can get the statements of a declarant before the jury when he is unfortunately unable to get that declarant to testify at trial.  It thus makes no sense to apply them when the party himself voluntarily chooses not to testify at his own trial.

The First Circuit also noted that even if Ficken were "unavailable," the former testimony exception would not apply.  That exception applies to:

     "[t]estimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

And while the First Circuit found that the NASD was the SEC's predecessor in interest, it found that the NASD did not have a full an fair opportunity to develop Ficken's testimony.  And the reason it did not have this opportunity is that while Ficken answered some of NASD's questions, he invoked his Fifth Amendment right in response to some of its questions.  Because the NASD could thus not fully develop Ficken's testimony, I also agree with the second conclusion by the First Circuit.

-CM      

Lie Detector As Sentencing Tool, Take 2: Maryland Inmate Fails Polygraph Test, So His Sentence Won't Be Reduced

Back in August, I wrote about a strange ruling in which a Baltimore County judge gave convicted felon Trent L. Banks a chance to take a lie-detector test as part of the sentencing process.  As I wrote back in August,

     According to Judge Lawrence R. Daniels, "[t]he appellate courts say it can't come in [as evidence] as proof of guilt or innocence, and I certainly agree that the state shouldn't be able to say, 'He failed a polygraph so you should find him guilty on that basis.'"  Judge Daniels noted, however, that private employers, the military, the federal government and even local prosecutors' offices routinely use lie-detector tests.  According to Judge Daniels, "They use them as an investigatory tool. I'm just using it as a sentencing tool."

At the time, I cited Ortega v. United States, 270 F.3d 540, 548 (8th Cir. 2001), for the proposition that Judge Daniel's decision was "inconsistent with a consensus among courts against the use of polygraph evidence at the sentencing stage of trial."  And I concluded that:

     Maryland falls within that consensus.  In its 1985 opinion in Johnson v. State, 495 A.2d 1 (Md. 1985), the Court of Appeal of Maryland dealt with a case where a reference was made to a polygraph test at a sentencing proceeding, and the trial judge overruled an objection to the reference.  On appeal, the court found that this was error, citing to its 1984 opinion in Guesferid v. State, 480 A.2d 800, 803 (Md. 1984), for the proposition that "[t]here is no longer any doubt that in this State, the results of a lie detector test, as well as the fact of taking such a test, are inadmissible at trial."  At first glance, I'm a bit confused by the facts of the Banks case, so I will look into them some more before doing a more detailed post on the case.  But as I see things now, Judge Daniels' decision is clearly erroneous."

Well, erroneous or not, the polygraph test was administered as part of Banks' attempt to have his prison term reduced.  And what are the facts underlying that attempt?  Well, the facts of Banks' case are somewhat confusing, but basically, Banks was convicted of attempted murder and sentenced to 35 years imprisonment after he shot at his girlfriend and her friend.  The shootings were also a violation of Banks' probation under prior convictions, leading to the imposition of two additional consecutive 5 year terms of incarceration.  Subsequently,

     "[i]n a highly unusual move, Daniels granted Banks’ request in August to take the polygraph in an effort to shave time off his five-year sentences. The judge made clear the results would have no impact on the [attempted] murder conviction and that passing did not automatically equal a sentence reduction."   

Well, Banks hired Thompson, founder and director of the Maryland Institute of Criminal Justice in Millersville, to administer the test, but the test did not produce the results that he desired.  "The examinee did not appear to be truthful," examiner Billy H. Thompson wrote in a test evaluation delivered to Judge Daniels in Baltimore County Circuit Court.  Consequently, Judge Daniels did not have to decide whether to exercise his discretion and reduce Banks' sentence.

-CM 

What's My Motivation?: Iowa Court Finds Former Testimony Exception Applies To Deposition Testimony Despite New Attorney/Strategy

The recent opinion of the Court of Appeals of Iowa in State v. Hunt, 2008 WL 4569877 (Iowa.App. 2008), addresses an interesting argument concerning the former testimony exception to the rule against hearsay that I have never seen raised before:  Does a change in counsel/trial strategy make the exception inapplicable?  The court found that it does not, and I agree with its conclusion.

In Hunt, Ramale Hunt was convicted of first-degree murder in connection with the shooting and death of a man in Waterloo.  And part of the evidence used to convict him consisted of the deposition testimony of D'Alan Thurmond, who refused to testify at trial and who was thus held in contempt of court.  Thurmond's refusal to testify rendered him "unavailable" to testify under Iowa Rule of Evidence 5.804(a)(2), which states that a witness is "unavailable" if he "[p]ersists in refusing to testify concerning the subject matter of the declarant’s statement despite an order of the court to do so."

Because Thurmond was "unavailable," the trial court was able to consider whether any of the Rule 804(b) hearsay exceptions applied to his deposition testimony and determined that the former testimony exception contained in Iowa Rule of Evidence 5.804(b)(1).  Under this exception, testimony by an unavailable declarant is admissible if it was "[t]estimony given as a witness at another trial or hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course if the same or another proceeding if the party against whom the testimony is now offered...had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."

One of Hunt's many arguments on appeal was that the former testimony exception should not have applied to Thurmond's deposition testimony because his motive to develop Thurmond's testimony during the deposition was not the same as his motive to develop Thurmond's potential testimony at trial.  Specifically, he contended that his motive for developing the testimony of Thurmond at trial was different than his motive at the deposition because his "original attorney had a different theory of the case which was irreconcilable with the defense being presented at trial."

The Court of Appeals of Iowa, however, rejected this argument, finding that “[t]he motive of defendant's deposition is to nail down the testimony of an adverse witness and have it available in the event of an inconsistent statement during trial.  The court does not find dissimilar motives."  I agree with this conclusion and think that it is consistent with the Advisory Committee Note to the federal counterpart to Iowa Rule of Evidence 5.804(b)(1), which states in relevant part that "[i]f the party against whom now offered is the one against whom the testimony was offered previously, no unfairness is apparent in requiring him to accept his own prior conduct of cross-examination or decision not to cross-examine." 

Indeed, it would seem that if the court found otherwise, a party who knew that a witness who rendered particularly damaging deposition testimony against him would be "unavailable" at trial could change attorneys/strategies to ensure that the former testimony exception would not apply.

-CM 

The Flaming Meaux: Wiconsin Court To Determine Admissibility Of Fire Officials' Testimony In Bar Burning

Adam Ward, the former owner of the Firehouse bar in Green Bay, is about to stand trial to face charges of felony injury by negligent handling of fire in connection with burning a woman at his bar on October 4, 2007.  And based upon a story on the article, it seems clear to me that two Green Bay Fire Department officials will be able to testify at that trial that they warned staff at the Firehouse bar about setting fire to alcohol poured on the bar several months before the incident at issue.

In an apparent attempt to become a poor man's Coyote Ugly, employees of the Firehouse bar would douse the bar with alcohol and set it ablaze.  In a pre-trial hearing held yesterday to determine the admissibility of certain evidence, Green Bay Fire Captain Gregg Fredrickson testified that he was at the bar in December 2006 and witnessed a member of the bar staff douse the bar with alcohol and set it ablaze. He then claimed that he later went to the bar to talk to the staff and made contact with a woman who said she would take care of the matter.

Green Bay Fire Captain Chris Heil also testified yesterday that he learned of the stunt and tracked down Ward in the spring of 2007 and told him the practice was dangerous and illegal.  "I told him it can't be done…someone could get injured, someone could get killed or he could burn the bar down," Heil said.

Both of these statements would have preceded the incident at issue, in which a woman was sitting near the bar when an alcohol bottle Ward was pouring on the bar exploded, burning the woman on her face, neck, and chest.  And indeed, the prosecution's case against Ward hinges on the fire officials' testimony because, in order to prove their case of criminal negligence, prosecutors must show that the Ward should have realized that his actions created a substantial and unreasonable risk of death or great bodily harm to another.

So, will the fire officials' testimony be ruled admissible?  The answer to me would seem to be a clear, "Yes."  According to Wis. Stat. Section 908.01(3), "'[h]earsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  And according to Wis. Stat. Section 908.02, "[h]earsay is not admissible except as provided by these rules or by other rules adopted by the supreme court or by statute."

Thus, if the fire officials' statements were being offered to prove the truth of the matter asserted -- that his bar's fire stunt could get someone injured or killed -- they would be hearsay and presumptively inadmissible.  However, the prosecution does not need to offer these statements to prove their substance.  Instead, the prosecutor can introduce those statements merely to prove that they put Ward on notice, such that he had a duty to investigate and potentially end his bar's dangerous practice. See, e.g., Sadowsky v. Anchor Packing Co., 1996 WL 191634 at *3 (Wis.App. 1996) ("Because the exhibit was offered to show notice to Garlock, it was not shown for the truth of the matter stated within, but rather for the effect of the information on Garlock. Offered for that purpose, the exhibit would not have been hearsay.").

What this means is that defense counsel will be able to ask for a limiting instruction with regard to the fire officials' statements under Wis. Stat. Section 901(06), but Ward almost certainly will not be able to preclude the fire officials' from testifying about their warnings.

-CM

To Tell The Truth: Idaho Case Reveals That Polygraph Test Results Are Admissible With A Stipulation

Most people know the general rule that polygraph test results are inadmissible (except in New Mexico), but fewer people know that there are several situations in which they can be admitted, as is illustrated by a current case in Idaho.  Tyrah Brea Brown and her husband, Keith, are charged with first-degree murder and grand theft by possession of stolen property in connection with the killing of Leslie Carlton Breaw and the theft of a $56,000 escrow check belonging to him. The Browns have maintained that: (1) the check was given to her Keith as payment for paralegal services he provided to Breaw; and that (2) Breaw sexually assaulted Tyrah, with Breaw being shot in the struggle over a gun after Breaw opened fire on Keith during a confrontation over the alleged rape of his wife.

And, after Tyrah was charged, she wanted to prove that these 2 claims were true, so she submitted to a polygraph test conducted by polygrapher Ted Ponticelli.  Pontecelli asked five questions, such as whether Tyrah was lying about Breaw sexually assaulting her, whether she shot Breaw, whether she was present when the shooting occurred, and whether she conspired to shoot Breaw or steal his money.  Tyrah answered "No" to each question, and Ponticelli said in his report that the responses to the questions were "consistent with truthful answers."  The results of Ponticelli's were later confirmed by a third-party polygrapher agreed upon by the prosecution and the defense.

What this means, according to an article on the case, is that these results will be admissible should Tyrah's case reach trial because "[t]he results of polygraph exams can be admissible in Idaho criminal courts if the state, the defense and the court agree to their admission."  This is indeed a correct statement of the law because, as noted by the Supreme Court of Idaho in State v. Perry, 81 P.3d 1230, 1235 (Idaho 2003), "polygraph evidence may be admissible in instances where the parties stipulate to the admission of the evidence,...in probation revocation hearings,...and in other informal hearings where the rules of evidence do not apply,...at the discretion of the trial court or presiding official."

Thus, in Idaho, as in most states, if you are a criminal defense attorney and have every reason to believe that your client is telling the truth and would pass a polygraph test, you should attempt to get the prosecution to stipulate that the results of a polygraph test taken by your client will be admissible at trial.  Of course, if you have the slightest doubt, it might be better to keep Pandora's Box closed

-CM

What A Difference A Few Weeks Make: 7th Circuit Makes Seemingly Erroneous Felony Impeachment Ruling

The recent opinion of the Seventh Circuit in United States v. Jackson, 2008 WL 4553061 (7th Cir. 2008), illustrates how important a few weeks can be in determining whether a felony conviction is admissible to impeach a testifying criminal defendant.  I also think the court it contains an incorrect conclusion.

In Jackson, the defendants Essie Jackson and Joe Jackson were convicted of mail fraud and conspiring to commit mail fraud along with their co-defendant, Angela Blackwell Jackson.  After they were convicted, the defendants appealed to the Seventh Circuit on a number of grounds, including Joe's argument that the trial court improperly permitted the prosecution to impeach him through evidence of his 1996 felony conviction for receiving stolen property.

While the Seventh Circuit didn't indicate the exact relevant dates, it noted that "[a]t the time of the trial, the conviction was just a few weeks shy of being ten years old."  And why was this point so important?  Well, under Federal Rule of Evidence 609(a)(1), "evidence that an accused has been convicted of...a [felony] shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused."  Conversely, 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, if a testifying criminal defendant's felony conviction is less than ten years old, it is admissible for impeachment purposes if its probative value outweighs its prejudicial effect, but if it is more than ten years old, it is only admissible if its probative value substantially outweighs its prejudicial effect.  In weighing probative value and prejudicial effect, courts typically consider 5 factors, which were actually first articulated by the Seventh Circuit in United States v. Mahone, 537 F.2d 922, 929 (7th Cir. 1976):

     (1) The impeachment value of the prior crime;

     (2) The point in time of the conviction and the witness' subsequent history;

     (3) The similarity between the past crime and the charged crime;

     (4) The importance of the defendant's testimony; and

     (5) The centrality of the credibility issue.

In Jackson, the Seventh Circuit noted that the trial court properly weighed these factors and did not abuse its discretion in deeming the prior conviction admissible for impeachment purposes.  Specifically, the Seventh Circuit noted that the trial court reached the following conclusions: 

     -the prior conviction was almost ten years old, meaning that factor 2 weighed (strongly) against admission;

     -the conviction for receipt of stolen property "did bear on Joe's truthfulness,...although the crime of receiving stolen property is not a crime of dishonesty per se," meaning that factor 1 weighed somewhat in favor of admission;

     -"the nature of the charges rendered Joe's intent and state of mind central issues in the case; and his credibility as a witness would be a key factor in assessing his testimony as to those issues," meaning that factor 5 weighed strongly in favor of admission.

     -"the evidence held some potential to prejudice" Joe, meaning that factor 3 weighed somewhat against admission.

Unfortunately, the court did not mention factor 4, but it seems clear to me that the trial court should have found that factor 4 weighed heavily against admission because if "Joe's intent and state of mind [were] central issues in the case," his testimony was extremely important, and the approval of his prior felony conviction for impeachment purposes could easily have dissuaded him from testifying.

So, tallying things up on my scorecard, 2 factors weighed strongly against admission, 1 factor weighed somewhat against admission, 1 factor weighed somewhat in favor of admission, and 1 factor weighed strongly in favor of admission.  By my math, and even if you disagree with my math a bit, that would mean that probative value did not outweigh prejudicial effect, and the trial court did abuse its discretion.  Of course, if the trial had started a few weeks later, we likely wouldn't even be having this discussion because I don't see any argument that the above factors compel a finding that probative value substantially outweighed prejudicial effect.

So, where did the trial court err, and why did the Seventh Circuit not mention factor 4?  I think that the answer to the second question might answer the first question, with the analysis coming courtesy of Jeffrey Bellin in his forthcoming article, Circumventing Congress.  In it, he argues that many courts have either read factor 4 out of the Federal Rule of Evidence 609(a)(1) analysis or erroneously transformed it from a factor that usually supports inadmissibility to a factor that supports admissibility.  I strongly agree with Bellin's analysis in the article, and I hope that courts take heed and either scrap the 5 factor test or at least start applying it correctly.

-CM

Wrestling With The Truth: Appeals Court Of Massachusetts Affirms Convictions Of Men Who Assaulted Paul Pierce

I've noted the strange state of evidence law in Massachusetts in previous posts, and some of those eccentricities were on full display in the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Ragland, 2008 WL 4530626 (Mass.App.Ct. 2008), which affirmed the convictions of two men who attacked Boston Celtics' star Paul Pierce in a nightclub eight years ago.  According to the evidence presented at trial:

     "In the late evening of September 24, 2000, continuing to the early morning of September 25, a crowd of about 300 men and women gathered at the Buzz Club in Boston for dancing and drinking at an after hours party. Paul Pierce-the victim of the stabbing attack-and two of his friends, Derrick and Tony Battie, arrived at the club shortly before 1:00 a.m. At one point during the party Pierce was talking to two women, Delmy Suarez and Keisha Lewis. The defendant [William] Ragland, who is Lewis's cousin, was standing nearby. Words were exchanged between the defendant and Pierce. A fight erupted. Other individuals, estimated by witnesses to be eight in number-and one of whom was identified as the defendant [Trevor] Watson-joined Ragland in what escalated to a full scale attack on Pierce. The attack was vicious and sustained. Pierce described punches landing all over his body, a hit to his head with a bottle, and stinging, piercing thrusts to his abdomen and back, which left several deep stab wounds."

Ragland was thereafter convicted of assault and battery by means of a dangerous weapon, a knife, but no witness at trial was able to put a knife in his hand at the time of the fight.  While several eyewitnesses testified at trial that Ragland and Watson attacked Pierce, Krystal Bostick, the only witness who had testified before the grand jury that Ragland attacked Pierce with a knife, recanted her testimony at trial.  Nonetheless, during trial, the prosecutor was able to introduce Bostick's grand jury testimony, which obviously played a huge role in both Ragland's conviction and his appeal to the Appellate Court of Massachusetts.

Now, if Ragland's case were being heard under the Federal Rules of Evidence, his argument that Bostick's grand jury testimony should not have been admissible as substantive evidence would have been without any merit.  That is because Federal Rule of Evidence 801(d)(1)(A), "[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...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition."  And clearly Bostick testified and was subject to cross-examination at Ragland's trial, and her prior statements concerning the knife were both given under oath at a (grand jury) hearing and inconsistent with her testimony at trial.

As I have noted before, however, Massachusetts

     "does not have an officially adopted code of evidence.  Instead, Massachusetts evidence law derives from a mishmash of common law, statutes, procedural rules, federal and state constitutions, the Federal Rules of Evidence, and the Massachusetts Proposed Rules of Evidence (which were never adopted). See Jeffrey S. Siegel, Note, Timing Isn't Everything, 79 B.U. L. Rev. 1241, 1244 (1999)."

And so while Massachusetts does have a Proposed Rule of Evidence 801(d)(1)(A) that is similar to its federal counterpart, it actually applies a unique test for determining the admissibility of inconsistent grand jury testimony.  Under that test,

     "The foundational requirements for the admissibility of the inconsistent grand jury testimony are that (1) the witness can be effectively cross-examined at trial regarding the accuracy of the statement; and (2) the statement was not coerced and was more than a mere confirmation or denial of an allegation by the interrogator, i.e., the statement must be that of the witness and not of the interrogator....In addition, a further requirement is that when that testimony concerns an essential element of the crime, the Commonwealth must offer at least some corroborative evidence if there is to be sufficient evidence to warrant a conviction."

Even though this test is more rigorous than the federal test, however, the Appeals Court of Massachusetts found that it was satisfied because Bostick could be effectively cross-examined and the statements were not found to have been coerced.  And while no other witness could place a knife in Ragland's had, Bostick's grand jury testimony was corroborated by other evidence at trial, such as "trial evidence concerning the witness Regina Henderson, who saw blood on the defendant Ragland's hand just after the stabbing and the defendant's efforts to wash the blood off."

-CM

I Said , "M-I-S-T-R-I-A-L," Mistrial, Take 2: Pennsylvania Judge Makes Seemingly Erroneous Hearsay Ruling In Murder Retrial

I am surprised by a Pennsylvania judge's hearsay ruling during a defendant's retrial.  And that ruling will prevent the victim's daughter from being able to testify concerning what her mother stated on a voice mail message she left while the defendant was allegedly beating her.  I previously wrote about the initial (mis)trial of the defendant for the mother's death in a post in March, where I laid out the relevant facts of the case:

     "After Leslie Kerstetter's husband died of cancer, her alcohol and drug problems became severe enough to lead her to seek help through the Dauphin County Drug and Alcohol Services office.  There, Kerstetter met Christopher W. Shenk, a recovering alcoholic who worked as a counselor for the county.  The two started dating, and Leslie was subsequently found dead in the couple's home on March 28th after Shenk called for an ambulance.  Shenk was subsequently charged with Leslie's murder.

     This week, at Shenk's trial, the prosecution and defense counsel both agreed that on March 26th, the couple was arguing about Leslie's drinking, with Leslie repeatedly taking taxis to the liquor store after Shenk had dumped her bottles of liquor.  Both sides also agreed that the argument got physical, but defense counsel claimed that while Shenk shoved Leslie during the argument, he did nothing to intentionally harm her.  The prosecution countered that Shenk beat Leslie to death."

So, why was there a mistrial?  Well, as I noted back in March,

     "As part of its case, the prosecution called Leslie's adult daughter Ashley to testify concerning a voice mail message that her mother left on her phone on March 26th.  Both the prosecution and defense counsel expected that Ashley was only going to testify that the voice mail made her believe that Shenk was beating her mother, not that she was going to relay her mother's statements on the voice mail.  Instead, Ashley surprised both sides by testifying that on the voice mail, her mother said, 'Chris is beating me.  I'm scared, I'm scared.  Get off me, get off me.'  The judge agreed with defense counsel's argument that this testimony was barred as hearsay and thus granted a mistrial.  Deputy District Attorney Christopher Dreisbach said he plans to argue on appeal that the same testimony by Ashley should be allowed on re-trial because the mother's statements constituted a present sense impression."

I thought that the DA's plan to argue that the mother's statements constituted a present sense impression was smart because such an argument, as well as an argument that the statements constituted an excited utterance, was likely to be successful."  Specifically, I pointed out that:

     "First, as the DA noted (but did he do so at trial?), Leslie's statement was a present sense impression under Pennsylvania Rule of Evidence 803(1) because it was "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."  Here, Leslie's statement that Shenk was beating her, and her statement, "Get off, get off" clearly indicate that Leslie was relaying an event that was presently occurring, making the exception applicable.

     Second, Leslie's statement was an excited utterance under Pennsylvania Rule of Evidence 803(2) because it was "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition."  Leslie's statement related to a startling event -- being beaten -- and her statement that she was "scared" indicated that she was under the stress of that event when she sent the voice mail. See, e.g., Commonwealth v. Watson, 627 A.2d 785, 788 (Pa. Super. 1993)."

I was thus surprised when I was combing through news stories today and found that the trial judge in Shenk's retrial agreed with defense counsel that Ashley Kerstetter's proposed testimony about the contents of her mother's message was inadmissible hearsay.  Unfortunately, the article on the retrial doesn't mention the judge's reasoning, but, barring any strange facts of which I am unaware, I don't see how this ruling could be proper.

-CM

A Warm Welcome To The Blogosphere To The Constitutional Law Prof Blog

Last Monday, my colleague Steve Schwinn launched the Constitutional Law Prof Blog along with Ruthann Robson of CUNY and Nareissa L. Smith of Florida Coastal.  From the first week, I can already tell that it will be a very active blog with a lot of interesting posts.  Congratulations and welcome to the blogosphere.

-CM