EvidenceProf Blog

Auld Lang Syne: Supreme Court Of Kentucky Finds Trial Court Properly Precluded Evidence Of Victim's Prior Drunk Fights In Newe Year's Eve Manslaughter Appeal

The recent opinion of the Supreme Court of Kentucky in Lake v. Commonwealth, 2008 WL 4691938 (Ky. 2008), reveals that a criminal defendant can only introduce evidence of specific prior acts of the victim in very limited circumstances.

In Lake, on New Year's Eve, 2004, in front of the house of Kenneth Vanover, a gunfight erupted between Vanover and Jack Lake, Jr.  Several shots were fired, both men were wounded, and Vanover's wounds proved fatal. 

After a jury trial, Lake was subsequently convicted of (1) manslaughter in the second-degree and (2) being a persistent felony offender in the first-degree.  Lake did not testify at trial, and the trial judge precluded him for presenting evidence at trial in support of his self-defense claim that Vanover had been arrested several times for fighting while drunk.

Lake subsequently appealed, claiming that the trial court improperly excluded this evidence because criminal defendants can present character evidence concerning the victim pursuant to Kentucky Rule of Evidence 404(a)(2) and specific prior act evidence pursuant to Kentucky Rule of Evidence 405(c), which states that:

     "In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct."

According to the Kentucky Supremes, however, the problem for Lake was that (as I have noted before on this blog),

     "[a] homicide victim's character trait for violent behavior is not an essential element of the claim of self-defense.  It is not any element of self-defense.  It is simply an evidentiary fact that, when it exists, is relevant to establish the elements of self-defense."

The court also noted that evidence of a victim's prior violent acts can be admissible when the defendant is aware of those acts to prove that the defendant reasonably feared the victim.  But the problem for Lake was that he did not testify and presented no evidence that he was aware of Vanover's prior violent acts at the time that he shot him.

The court thus properly affirmed Lake's convictions because there was no evidentiary error.

-CM

Confessions Of A Medical Examiner: Wrongful Death Plaintiffs' Lawsuit May Be Hurt If Experts Relied Upon Hearsay In Deciding Cause Of Death

A wrongful death lawsuit set for trial in April could lead to an interesting evidentiary ruling, which could make it more difficult for the plaintiffs to prove their case.

That lawsuit was brought by the family of a Texas elementary school teacher, Kari Baker, who died mysteriously in 2006.  Baker’s death initially was ruled a suicide by sleeping pills, and she was buried without an autopsy or further investigation.  Her parents, however, pushed investigators to look into their daughter’s death, as they became convinced that their son-in-law, Central Texas Baptist minister Matt Baker, had killed her.  According to the parents, Matt killed Kari and tried to make her death appear to be a suicide.

And their beliefs were bolstered when Kari's body was exhumed and the investigation was reopened, with Justice of the Peace Billy Martin changing his cause-of-death ruling to "undetermined."  The parents thus sued Matt for wrongful death, and while the trial won't start until April, Matt's attorney, Richard L. Ellison, has already said that he "intends to prove that expert witnesses called by the plaintiffs are biased and that their testimony will be based on hearsay."

And while it is difficult for me to make any conclusions without knowing more details, I can say that if the plaintiffs' experts will be testifying regarding cause of death, and if they are relying upon hearsay in forming their conclusions, Ellison might have a valid argument.  Texas Rule of Evidence 703 states that:

     "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed 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."

So, the question becomes whether experts in the field of determining the cause of death (such as coroners and medical examiners) reasonably rely upon hearsay in forming their conclusions.  And my brief review of the case law reveals that they do not.  In this context, many courts have come to the same conclusion as the Supreme Court of Florida in Linn v. Fossum, 946 So.2d 1032, 1037 (Fla. 2006), which found that medical examiners reasonably rely upon "objective evidence" such as autopsy reports, reports by a forensic experts, depositions, photographs, and dental records, in forming expert conclusions.  Conversely, the Florida Supremes found that medical examiners cannot rely upon hearsay statements, which "are neither recorded nor verifiable objective evidence."

I think that a Texas court would likely reach a similar conclusion.  So, if the plaintiffs' experts are relying upon hearsay, they likely will not be allowed to testify; however, if they are relying upon "objective evidence," they likely will be allowed to testify.

-CM

Will Free Love Lead To Freedom?: Convicted Man Claims Juror Sex During Deliberations Tainted His Verdict

Readers of this blog know that one of my favorite subjects for posts is Federal Rule of Evidence 606(b) and the issue of whether and when jurors can impeach their verdicts after trial through evidence of jury misconduct.  And I thought that I had seen it all until I read about a St. Louis man who has sought a new trial based upon claims that both jurors and sheriff's deputies were engaging in sexual relations during deliberations.

Back in 2000, Roberto Dunn stood trial, facing charges of murder in the first degree, and finally being convicted of murder in the second degree.  But before that verdict, and during the trial, "a sheriff's deputy told the judge that she overheard some jurors discussing the case before deliberations started, which is improper."  The judge thereafter questioned four jurors, who admitted they had talked about several witnesses during a break.  Nonetheless, the trial judge apparently thought that these improper discussions would not taint the verdict because "{t]he trial resumed with the same panel."

Without even getting to the allegations of juror sex, this in itself seems to me like a questionable decision, but it's one which I can't really address because of the equally questionable decision of the Missouri Court of Appeals.  You see, Dunn appealed his conviction, and the Missouri Court of Appeals affirmed in State v. Dunn, 60 S.W.3d 676 (Mo.App.E.D. 2001), noting:

     "No jurisprudential purpose would be served by a written opinion. The parties have, however, been provided with a memorandum setting forth the reasons for this order."

This seems bizarre to me.  The issue of whether jurors can remain seated after improperly discussing witness testimony seems fairly important to me, and I thus see a clear jurisprudential purpose that could have been served by a written order.  And when you add the allegations of juror sex, I really don't understand the court's (lack of a written) decision.

So, what were those allegations?  Well, two weeks after the jury rendered its verdict, juror Jennifer Thompson sent a letter to the trial judge in which she

     "accused two jurors of having sex with each other during two evenings at a hotel where the panel stayed. She said jurors believed the two sheriff's deputies assigned to the case were having sex with each other while on duty at the hotel."
 
Like the allegations of juror misconduct during trial, these allegations were not enough for the appellate court to award Dunn a new trial.  And on this count, I agree.  Federal Rule of Evidence 606(b), which Missouri has basically adopted in its case law, states in relevant part that:

     "[u]pon an inuqiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."

I don't see how sexual relations between jurors and/or sheriff's deputies could be construed as either extraneous prejudicial information or an improper outside influence, and even if they could, I'm not sure how Dunn could argue that they rendered his trial unfair.

Nonetheless, Lisa Stroup, an assistant public defender now on Dunn's case, has appealed, arguing that the performance of Dunn's trial counsel in connection with these allegations was deficient.  And the one thing that she and Rachel Smith, an assistant circuit attorney defending the conviction, can likely agree upon is Smith's claim that "[c]ase law is silent as to whether jurors having sex with each other, if it is proven to be true, is an issue."   

I agree as well, which makes the Missouri Court of Appeals' decision not to issue a written opinion even more bizarre.

-CM

Extreme Measures: Court Of Appeals Of North Carolina Fails To Explain New Evidentiary Rule In Affirming Medical Malpractice Ruling

The recent opinion of the Court of Appeals of North Carolina in Cornett v. Watauga Surgical Group, P.A., 2008 WL 5214375 (N.C.App. 2008), reveals that North Carolina has a strange rule regarding expert testimony regarding standard of care in medical malpractice cases.  And unfortunately, neither that opinion nor any prior opinion gives me any indication of the meaning of a key phrase in that rule.

In Cornett, Dianne Morin was admitted to the emergency room of Watauga Medical Center complaining of abdominal pain, nausea and vomiting. After Dr. Frank Y. Chase evaluated her, he performed a surgical procedure. Following surgery, Morin remained in the hospital for nine days and experienced an increase in abdominal symptoms. Dr. Chase thereafter performed exploratory surgery on Morin and found further complications in her bowels, prompting him to place two drains in her abdomen.  Subsequently, Morin was transferred to Wake Forest University Baptist Medical Center, where she soon passed away.

Harold Cornett, administrator of Morin's estate, later sued Watauga Surgical Group, P.A.'s and Frank Y. Chase for medical malpractice.  The defendants then moved to exclude the proposed testimony of Dr. Martin Litwin, M.D. ("Dr. Litwin"), the plaintiff's proposed expert witness, and moved for summary judgment.  The trial judge granted the defendants' evidentiary motion because it found that Dr. Litwin was not qualified to render expert testimony on the appropriate standard of care based upon the strict requirements of North Carolina Rules of Evidence 702(b)-(c) (I won't print all of those requirements in this post, but you can find them here).

The trial judge also rejected the plaintiff's argument that Dr. Litwin should be able to testify pursuant to North Carolina Rule of Evidence 702(e), which states that:

     "Upon motion by either party, a resident judge of the superior court in the county or judicial district in which the action is pending may allow expert testimony on the appropriate standard of health care by a witness who does not meet the requirements of subsection (b) or (c) of this Rule, but who is otherwise qualified as an expert witness, upon a showing by the movant of extraordinary circumstances and a determination by the court that the motion should be allowed to serve the ends of justice."

One reason for this rejection was that the trial judge noted that he was not a resident judge, meaning he had no power under North Carolina Rule of Evidence 702(e).  Alternatively, the trial judge "also stated in his order that if he had reached the motion, he would have denied it because plaintiff did not show either extraordinary circumstances or that justice required allowing a non-qualified expert witness to testify."

Without this testimony, the plaintiff could not prove his case, and thus the trial judge granted the defendants' motion for summary judgment.  The plaintiff thus appealed, claiming that the trial judge's ruling under North Carolina Rule of Evidence 702(e) was erroneous.  And the North Carolina Court of Appeals didn't resolve the issue of whether only resident judges have power under North Carolina Rule of Evidence 702(e).

Instead the Court of Appeals assumed that the trial judge had power under this Rule, but it still found that any error that the trial judge made in failing to fully consider the plaintiff's argument was harmless.  According to the court, 

     "Plaintiff contends the error is not harmless because whether Dr. Litwin qualified as an expert 'literally came down to counting minutes spent between his different activities in a given month,' 'disbelieving Dr. Litwin's sworn testimony to the contrary,' and these are 'extraordinary circumstances' contemplated under the rule. We disagree. Plaintiff did not demonstrate extraordinary circumstances to support his Rule 702(e) motion at the hearing before the trial court. See Knox v. Univ. Health Sys. of East. Carolina, 187 N.C.App. 279, ----, 652 S.E.2d 722, 725 (filed Nov. 20, 2007)."        

And here's the problem that I have with the court's ruling.  It gives me no indication of what is meant by the phrase "extraordinary circumstances."  All I know is that they are not the circumstances presented by the litigants in Cornett and Knox.  And those are the only two opinions to apply the relatively new North Carolina Rule of Evidence 702(e) (two other opinions have cited the Rule in dicta).

In Cornett, the consequence of Dr. Litwin not being allowed to testify was summary judgment being entered against the plaintiff.  Was that not an extraordinary circumstance?  Maybe and maybe not, but I would have no way of knowing without some explanation by North Carolina courts.

-CM

Something To Confess: First Circuit Seemingly Misapplies Bruton Doctrine In Dicta

The recent opinion of the First Circuit in United States v. Cruz-Diaz, 2008 WL 5250979 (1st Cir. 2008), contains what seems to me to be a pretty blatant misstatement of the interplay between a rule of evidence and the Confrontation Clause.  Luckily for the court, however, that statement was in dicta.

In Cruz-Diaz, a jury convicted Angel Zamora Cruz-Díaz (Cruz) and José Alfredo Ayala-Colón (Ayala) of conspiring to rob a federally insured bank, aiding and abetting a bank robbery by use of a dangerous weapon, and aiding and abetting the use of a firearm during and in relation to a crime of violence.

Both defendants subsequently appealed, with Ayala's sole claim on appeal being that the trial court erred when it allowed an FBI agent to testify regarding an out-of-court statement made to authorities by Cruz, his codefendant.  The court allowed the agent to testify about Cruz's statement after Ayala's counsel, via cross-examination, questioned a Puerto Rico police officer about the failure of the police to pursue various investigatory options after it detained Cruz and Ayala.

The agent thereafter explained that the FBI and Puerto Rico police failed to pursue certain investigatory options because they believed they had captured the right suspects.  And, in doing so, the agent referred to Cruz's out-of-court statement while testifying that:

     "I became aware at the time of the detention of the two defendants that [Cruz] had stated to [the officer] who gained custody of him, that ... 'the money is over there in a black bag, we already threw away the weapons,' and something to the effect of, 'we're screwed, less than five minutes and they caught us.'"

The First Circuit correctly found that this testimony did not violate Ayala's rights under the Confrontation Clause because Cruz's confession was not admitted to prove the truth of the matter asserted.  Indeed, the court noted that before the agent rendered the above testimony, the judge gave the following limiting instruction:

     "[The FBI agent] is going to testify as to actions he took in his investigation of this case, based upon information he received. And what I'm going to instruct you is that his testimony concerning what he did, the actions he took, because of information [he] had, is not being presented to you to consider the truthfulness of the defendant's statement in any way whatsoever. You're instructed not to consider the statement he's going to testify about as evidence on any of the counts or against the defendants of any of the counts charged in the indictment."

So, where did the court go wrong?  Well, the court noted that Cruz's confession was thus not hearsay and could not violate the Confrontation Clause and specifically the Bruton doctrine, which holds that a confession by a non-testifying codefendant cannot be admitted against another defendant being prosecuted in the same (joint) trial.

In addressing this hypothetical Bruton issue in dicta, the court noted:

     "It is well established that a codefendant's out-of-court statement is admissible against that codefendant as a 'party admission.' Fed.R.Evid. 801(d)(2)....But that same statement is inadmissible hearsay and raises Confrontation Clause concerns with respect to another defendant being prosecuted in a joint trial."

Now, I'm not quite sure what the First Circuit was saying.  On the one hand, if it were implying that Cruz's confession would have qualified as a co-conspirator admission if it were offered for the truth of the matter asserted, the First Circuit would have been wrong.  That's because  Federal Rule of Evidence 801(d)(2)(E) defines a co-conspirator admission as "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy."  Clearly, Cruz's confession to the agent after he was already apprehended was neither during the course of nor in furtherance of his alleged conspiracy with Ayala.

On the other hand, maybe the First Circuit was not saying that Cruz's confession could have been construed as a co-conspirator admission and was merely saying that if it had a co-conspirator admission before it, it would have had a Bruton issue.  But this conclusion would have been just as wrong.  That is because statements that qualify as co-conspirator admissions are deemed non-testimonial (and the admissions of both co-conspirators), meaning that they raise no Bruton problem. See, e.g., United States v. SIngh. 494 F.3d 653, 658 (8th Cir. 2007).   

-CM

Majority Rule: Mississippi Court Finds Juror Can't Impeach Verdict Through Claim Of Majority Vote

Despite the defendant's protestations to the contrary, the type of jury misconduct that allegedly occurred in Edwards v. State, 2008 WL 522608 (Miss.App. 2008), is exactly the type of misconduct that does not form the proper predicate for jury impeachment under Federal Rule of Evidence 606(b) and state counterparts.

In Edwards, Kanethia Edwards, an eleventh grade student, was convicted of aggravated assault based upon a fight with Angelique Lewis, another eleventh grade student, whom Edwards stabbed with a knife.  After she was convicted, Edwards appealed, claiming, inter alia, that the circuit judge should have granted an evidentiary hearing for her to set forth proof that the jury based its guilty verdict on a majority vote instead of reaching a unanimous decision.

Edwards claimed that a hearing was warranted because she obtained an affidavit from a juror named Usry, which stated:

     "During the course of deliberations the jurors, including myself, discussed the case and votes three (3) times on the verdict. The first vote was seven (7) for not guilty and five (5) for guilty. We continued to deliberate and after [the vote] was nine (9) for 'not guilty' and three (3) for 'guilty.' We continued to deliberate and took a third vote. Prior to the third vote, the foreman...and others began to discuss that on the next vote we should go by the majority and allow the majority vote to be the verdict of the jury. The foreman suggested that in order to reach a verdict the jury should agree to allow the majority to be the verdict. During the discussions about the majority vote, I, and at least two (2) other jurors voiced that no matter what the vote was, we were going to vote 'not guilty.' When the last vote turned out to be seven (7) for guilty and five (5) for 'not guilty' one of the ladies on the jury wrote the verdict on a sheet of paper and gave it to the foreman and he knocked on the door. We then went in to the courtroom and the foreman gave the verdict to the court."

The Court of Appeals of Mississippi, however, in addition to finding that Edwards' claim was procedurally barred, concluded that Usry's affidavit was inadmissible under Mississippi Rule of Evidence 606(b), which states that:

     "Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes."

According to Edwards, Usry's affidavit proved "that extraneous prejudicial information was introduced into the jury's deliberation."  But it seems clear to me that the court was correct in finding that the decision to have a majority vote was properly characterized as an internal matter decided solely by the jurors and not as the product of any improper external evidence or influence.

And indeed, this conclusion finds support in the Advisory Committee's Note to Federal Rule of Evidence 606(b).  According to that Note, Federal Rule of Evidence 606(b) was drawn from common law cases, which had held that testimony or affidavits of jurors were incompetent to show, inter alia, "a compromise verdict" or "a quotient verdict."

A "compromise verdict" is "a decision made by a jury in which the jurors split the difference between the high amount of damages which one group of jurors feel is justified and the low amount other jurors favor."  And a "quotient verdict" is "an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award."

While I still question the efficacy of Federal Rule of Evidence 606(b) and state counterparts, I odn't see how they can be applied to quotient verdicts and compromise verdicts, but not majority verdicts.

-CM 

Mayberry, R.F.D.: Sixth Circuit Allows For Introduction Of Prior Inconsistent Statements After Witness Claims Lack Of Memory In Christmas Case

The opinion of the Sixth Circuit in United States v. Mayberry, 540 F.3d 506 (6th Cir. 2008), reveals that the prosecution can introduce a prior inconsistent statement when a witness claims lack of memory at trial.

In Mayberry,  James Peoples appealed his conviction for being a felon in possession of a firearm.  And Peoples was convicted in large part based upon the testimony of informant John Bowman.  According to Bowman, he contacted the Grand Rapids, Michigan police and informed them that Peoples and his codefendant, Shawn Mayberry, were involved in two grocery store robberies.  According to Bowman, Peoples and Mayberry approached him around "Christmas time" 2005 and asked if he would like to participate in their next robbery.

Bowman, however, did not provide this testimony at trial.  Instead, he rendered it before the grand jury.  When he was called at trial, "Bowman claimed he did not remember having conversations with Peoples that implicated Peoples in the grocery store robberies."

At that point, the prosecution introduced his grand jury testimony as prior inconsistent statements pursuant to Federal Rule of Evidence 801(d)(1)(A), which indicates that

     "[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...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."

Peoples subsequently appealed, claiming, inter alia, that Bowman's grand jury testimony was not inconsistent with his testimony at trial and that Bowman was not subject to cross-examination at trial because he claimed lack of memory. 

The Sixth Circuit, however, disagreed, finding first that "[i]t is well established that a witness['] 'limited and vague recall of events, equivocation, and claims of memory loss' can constitute prior inconsistent statements under Fed.R.Evid. 801(d)(1), and thus such statements allow the witness' prior inconsistent grand jury testimony to be admitted as substantive evidence."

Then, with regard to Peoples' second argument, the court found that Bowman did indeed testify at trial and was subject to cross-examination, notwithstanding his claim of memory loss.

While I have trouble with both of these conclusions, and while the prosecution could not have called Bowman for the sole purpose of impeaching him, the Sixth Circuit's conclusions are both accurate applications of the current state of the law.

-CM   

Robbery Wihout Motive: Missouri Court Of Appeals Finds That Drug Evidence Was Improperly Admitted In Christmas Eve Robbery Trial

The recent opinion of the Missouri Court of Appeals in State v. Allen, 2008 WL 5054693 (Mo.App. W. D. 2008), reveals that simply because character evidence is relevant to some permissible purpose does not mean that it is automatically admissible.

In Allen, Johnny L. Allen appealed his conviction following a jury trial for robbery in the first degree based upon his alleged robbery of a Movie Gallery in Sedalia, Missouri on Christmas Eve.  And some of the evidence used to convict Allen was evidence that when the police arrested him four days after the robbery and performed a search incident to an arrest, they discovered a crack cocaine pipe in his pocket and a bag containing 0.31 grams of crack cocaine in his hat.  Later, during closing arguments, the prosecutor stressed the importance of this drug evidence, informing the jurors that:

     "The defendant has a motive to commit robbery. A crack pipe with residue in his pocket when arrested, more crack in his ball cap. This evidence of motive is uncontradicted by any defense evidence. And I understand that many people have a desire to have more money. Most people who have student loans don't go out and commit robberies. Unfortunately, many people who have a crack habit do....This case is about whether this man walked in on Christmas Eve desperate enough to threaten the use of a gun just to get money to feed a crack cocaine habit. (emphasis added)."

After he was convicted, Allen appealed, claiming, inter alia, that the trial court erred in admitting the evidence of the drugs and drug paraphernalia because the evidence was inadmissible evidence of other crimes."  And he had a point.  Missouri does not have codified rules of evidence, but its courts generally deem evidence of other crimes inadmissible as propensity character evidence. 

On the other hand, Missouri courts do deem such evidence admissible for permissible purposes, such as establishing (1) identity, (2) motive, (3) intent, (4) the absence of mistake or accident, or (5) a common scheme or plan.  And the prosecution claimed on appeal that evidence of the drugs and drug paraphernalia found on Allen was evidence that he had a drug habit, providing him with a motive for robbing the Movie Gallery.

But while the prosecution could thus point to a permissible purpose, its problem was that the appellate court noted that even when a court finds that such a permissible purpose exists, it  "should require that the admission of evidence of other crimes be subjected to rigid scrutiny because the evidence may raise a false presumption of guilt in the jurors' minds."  And the problem for the prosecution was that its drug evidence could not withstand this scrutiny. 

The court noted that:

     "[c]ourts have upheld admission of drug evidence to establish motive where the record explicitly included some explanation of motive. For example, where the defendant testified that he was an addict, it would arguably show he had a motive to traffic in drugs....Or, where the defendant told the detective he had been stealing to support a cocaine habit, the testimony was admissible to show defendant's motive for the burglary....Or, where the evidence of the defendant's prior drug use and the fact that he was pawning items to obtain money for drugs helped show a motive to commit the crimes."

The problem for the prosecution, though, was that:

     "In this case, mere possession of drugs and drug paraphernalia by the accused, four days after the crime occurred, cannot by itself establish motive. The record contains no evidence or testimony attributing any previous drug use or financial trouble to Mr. Allen. In fact, no evidence in the record exists to link the drug evidence with the crime charged. The State's unsubstantiated assertion that Mr. Allen committed the robbery 'to feed a crack cocaine habit' is not evidence. If the State sought to prove motive for the robbery, then the burden was upon the State to present evidence connecting the drug evidence to the robbery that had occurred four days earlier."

The appellate court thus found that the drug evidence was improperly admitted.  It then rejected the prosecution's argument that its admission was harmless error because  "there was very little evidence" about the drugs adduced at trial, and references to the drugs were "very low key."  Instead, the court pointed to the prosecutor's aforementioned statements during closing arguments and held that a new trial was warranted.  And based upon those closing statements, I agree.

-CM

It's No Fun Being An Illegal Alien: Eighth Circuit Finds No Plan Error In Magistrate's Questions About Witnesses' Immigration Status

The recent opinion of the Eighth Circuit in United States v. Almeida-Perez, 2008 WL 5214949 (8th Cir. 2008), raises an issue that has left me very conflicted.  In fact, I don't even think at this point that I can hazard a guess about how courts should address it in the future.

In Almeida-Perez, José and Porfirio Almeida-Perez, brothers who pled guilty to being illegal aliens in possession of firearms that had been transported in interstate commerce, appealed from the district court's denial of their suppression motion and from the twenty-four month sentences it imposed on each of them.  And one of the arguments in Porfirio's brief was that the Magistrate Judge exceeded the bounds of Federal Rule of Evidence 614(b) in examining defense witnesses by, inter alia, asking them about whether they entered this country legally or illegally.

Federal Rule of Evidence 614(b) simply states that "[t]he court may interrogate witnesses, whether called by itself or by a party."  But the Advisory Committee's Note to it cautions that:

     "The authority [of the judge to question witnesses] is, of course, abused when the judge abandons his proper role and assumes that of advocate, but the manner in which interrogation should be conducted and the proper extent of its exercise are not susceptible of formulation in a rule. The omission in no sense precludes courts of review from continuing to reverse for abuse."

So, what does this Note mean, and is it violated when a judge inquires into the circumstances under which a witness entered the U.S.?  And would it be violated if an attorney, as opposed to a judge, asked these same questions?  Unfortunately, the Eighth Circuit didn't have to address these issues in much detail because Porfiro's attorney failed to object to this line of questioning by the judge, meaning that the issue was not preserved for appeal and that there could only be reversal for plain error.

(Of course, this raises the separate issue of the problems presented in requiring a party to object to questioning by a judge.  The Eighth Circuit addressed this problem in passing, noting, "While we recognize the difficulty for a litigant in objecting to actions of the judge presiding over their proceedings, it is nevertheless true that without a trial level objection, there was no opportunity for the Magistrate Judge to address the issue or correct any error into which he may have fallen.")

Instead, the Eighth Circuit merely noted that the issue was a close call, which meant that there was no plain error.  On the one hand, the court "found two cases in which unlawful entry into the country or other violation of immigration laws was considered admissible because relevant to truthfulness."  On the other hand, the court cautioned "that the use of such evidence is fraught with the danger of prejudice to a defendant by introducing the possibility of invidious discrimination on the basis of alienage."

I agree with the Eighth Circuit that there was no plain error in this case, but, as I indicated above, I am really torn on the issue of whether courts should generally allow this line of questioning and whether a judge's decision to allow such questioning despite a timely objection should form the basis for reversal.  Do readers have any thoughts on the issue?

-CM

A Jury Of His Priors: Court Of Appeals Of Iowa Reverses Murder Conviction Based Upon Extraneous Prejudicial Information Reaching The Jury

The recent opinion of the Court of Appeals of Iowa in State v. Allen, 2008 WL 5234319 (Iowa.App. 2008), represents the rare example of a court reversing a conviction based upon post-verdict jury impeachment.

In Allen, Jarmaine Allen appealed his judgment and sentence for first degree murder on several grounds.  And one of those grounds was "that jurors were exposed to several types of extraneous information during deliberations."  The Court of Appeals of Iowa found that it could hear this argument notwithstanding Iowa Rule of Evidence 5.606(b), which states in relevant part that:

     "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror."

Because Allen was claiming that the jury was exposed to extraneous prejudicial information during deliberations, Iowa Rule of Evidence 5.606(b) did not provide a bar to jury impeachment.  And what was this extraneous prejudicial information?  Well,

     "[t]wo jurors testified that one of their peers told them Allen was incarcerated for another offense at the time of this trial. One juror said, 'Somebody mentioned that [Allen] had already been convicted of one crime so not to worry about convicting him of this one since he was already doing jail time.' Another stated he heard a juror say that Allen 'was incarcerated currently for something else.'"

Now, the trial court previously heard this testimony but decided not to reverse Allen's conviction because "the fact that the defendant had previously been incarcerated was already made part of the record."  The Court of Appeals of Iowa, however, found that the trial court missed the point.  According to that court, while there was evidence produced at trial which indicated that Allen had previously been incarcerated, "[t]here was no indication that Allen was in prison at the time of this trial." 

The Court of Appeals thus reversed and remanded because it concluded that the extraneous prejudicial information concerning Allen's incarceration was sufficiently prejudicial to deny him a fair trial.  And based upon the aforementioned facts, this decision seems correct to me.    

-CM

Gather Round The Table, We'll Give You A Treat: Court Finds Stock Shares To Be Community Property Despite Title Evidence Argument In Hanukkah Case

In In re Marriage of Rosner, 2003 WL 22853006 (Cal.App. 2 Dist. 2003), Leland Rosner and Linda Sherman Rosner were married for approximately eight years before they got divorced after divorce proceedings.  As a result of those proceedings, inter alia, the trial judge determined that 250 shares of Royal Dutch Petroleum stock (1,000 by the time of trial due to stock splits) was community property, prompting Leland's appeal.

And the basis for Leland's argument was that "his name and his name alone was on the gift certificate prepared by his father" which allegedly transferred the stock shares.  According to Leland, this meant that the stock shares should have been considered his separate property pursuant to California Evidence Code Section 662, which states that "[t]he owner of the legal title to property is presumed to be the owner of the full beneficial title.  This presumption may be
rebutted only by clear and convincing proof."

So, why did the trial judge rule against Leland?  Well, the court noted a few reasons.  First of all, while Leland's father claimed that he solely gave the gift certificate to Leland, Linda and her father both claimed that he gave it to Linda at a Hanukkah party and said, "Happy Hanukkah."  The problem for Leland was that Linda presented to the court a photograph of her holding the envelope with the gift certificate.

Moreover, because Leland did not produce the copy of the gift certificate with only his name "until several weeks after his deposition, and had no explanation for where the document had been, the court discounted his evidence. Instead, the court credited the testimony of Linda and her father, bolstered by the photograph showing her holding the envelope."

Most importantly, however, the gift certificate merely symbolized the gift of the stock share transfer, and the transfer itself was "put directly into the couple's joint account."  Therefore, California Evidence Code Section 662 actually supported the proposition that the stock shares were community property, not the proposition that the stock shares were Leland's separate property.

-CM

The Dirty Double: Despite Having Passed Away, Lee Marvin Becomes Embroiled In Second Oral Agreement Dispute

Back in the 1970s, actor Lee Marvin was involved in one of the most famous cases ever dealing with an alleged oral agreement.  And now, even though he has passed away, he has become posthumously embroiled in another such dispute.

Marvin v. Marvin, 557 P.2d 106 (Cal. 1976), is often described as "[t]he landmark decision involving unmarried cohabitants." Michelle Oberman, Sex, Lies, and the Duty to Disclose, 47 Ariz. L. Rev. 871, 894 (2005).  That case dealt:

     "with the affairs of Michelle and Lee Marvin, who lived together for seven years. During that time, Lee Marvin acquired considerable property in his own name. Upon the demise of the relationship, Lee evicted Michelle from the couple's joint home and denied any obligation to support her. According to Michelle, the couple had an oral understanding whereby she would serve as 'companion, homemaker, housekeeper and cook' to the defendant, and they would act as husband and wife. In exchange, they would 'share equally' in the property they accumulated, and he would support her for the rest of her life.  The court accepted her testimony and upheld the legal enforcement of express contracts between unmarried cohabitants. Furthermore, the court suggested that, in future cases involving unmarried cohabitants who lacked express agreements, courts should look to the conduct of parties to determine whether there was an implied agreement to share resources. Finally, it held that courts may also award damages in these cases under the doctrine of quantum meruit." Id.

Lee Marvin has since passed away, but, in an example of deja vu all over again, the actor has once again become embroiled in a dispute involving an attempted eviction and an alleged oral agreement.  This time, Marvin's widow, Pamela, wants to evict her daughter widow and son-in-law, Wendy and Fred King, from the home that they have occupied for 25 years.

According to Pamela, the house should be sold, with the proceeds divided according to longstanding arrangements:   81% to a survivors trust that she manages and the remaining 19% to Wendy.  Meanwhile, the Kings' attorney, Brick P. Storts III, has countered that Lee Marvin intended the property as part of Wendy King's inheritance and that Pamela Marvin is trying to punish her daughter.  Finally, Pamela's attorneys have responded that "Wendy King's claim that Lee Marvin promised her the house as an inheritance wasn't admissible in court under Arizona's so-called 'Dead Man's Statute.'"

And, unless there are some facts of which I am unaware, I would have to agree with Pamela's attorneys.  A.R.S. Section 12-2251, Arizona's "Dead Man's Statute," states that:

     "In an action by or against personal representatives, administrators, guardians or conservators in which judgment may be given for or against them as such, neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, intestate or ward unless called to testify thereto by the opposite party, or required to testify thereto by the court. The provisions of this section shall extend to and include all actions by or against the heirs, devisees, legatees or legal representatives of a decedent arising out of any transaction with the decedent."

This is exactly what Wendy is trying to do:  testify regarding a "transaction with or statement by the testator."  Thus, her proposed testimony regarding the house should be barred by Arizona's Dead Man's Statute.

-CM    

We The Jury: Supreme Court Of Pennsylvania Refuses To Hear Allegations Of Extreme Juror Racial Prejudice In Death Penalty Apeal

Sometimes, I wake up and read a news article or court opinion that puts a smile on my face because of an apparent wrong that has been righted, a justice wrenched from the grasps of an injustice.  Today is not one of those days.

Last March, I posted an entry about a Post-Conviction Collateral Relief Act (PCRA) petition by Fabian Smart, an African-American man from Pennsylvania who was convicted of murder in the first degree in connection with the beating death of a Lock Haven area man and sentenced to life imprisonment without the possibility of parole.  According to Smart, a jury member contacted him after the trial and told him that jury members used racial slurs, which were brought up "early and often."  The judge, however, precluded Smart's attempt to impeach the jury's verdict through this evidence pursuant to Pennsylvania Rule of Evidence 606(b), which states in relevant part that:

     "Upon an inquiry into the validity of a verdict, including a sentencing verdict pursuant to 42 Pa.C.S.A. §  9711 (relating to capital sentencing proceedings), a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received."

In that post, I noted that this ruling was consistent with another Pennsylvania opinion, this one decided in the shadow of no towers.  As I noted,

     "In Tabchi v. Duchodni, 56 Pa. D. & C.4th 238 (Pa.Com.Pl. 2002), an Arab husband and wife and their three children were involved in a car accident and brought a civil action against the other driver for their injuries.  They thereafter moved for partial summary judgment on the issue of liability, and their motion was granted; the defendant was held solely responsible for the accident, leaving only the issue of damages to be tried before the jury. Id. at 239.  At that trial, however, which began on September 24, 2001, "the jury returned a verdict in the amount of zero dollars as to each of the five plaintiffs, even though injuries to two of them were uncontroverted." Id.

     After the jury rendered its verdict, one of the jurors approached plaintiffs' counsel and allegedly informed him of disparaging remarks concerning plaintiffs' Arabic heritage and culture made by other members of the jury during the course of their deliberations. Id. at 241. Several days later, the court received a letter from the jury foreperson which claimed that the ethnicity of the plaintiffs was openly discussed and apparently considered as a factor in the jury's deliberations. See id.  The plaintiffs thereafter moved for a new trial, alleging, inter alia, that this prejudice made the jury's verdict fatally flawed. See id.

     The court rejected this claim, finding that the "[p]laintiffs' contention that the jury was influence by anti-Arab bias and bigotry in the course of its deliberations is based solely upon the allegations of other jurors.  However, such prejudice in the deliberative process, if it existed, and as odious and repugnant as it would be, is not and external or extraneous input that would override the sacrosanct nature of jury deliberations." Id. at 250 (emphasis added)."

While both of these rulings were troubling to me, they were lower Pennsylvania court opinions, giving me hope that if such a case ever reached the Supreme Court of Pennsylvania, that court would perhaps reach the opposite conclusion or at least address the broader Constitutional ramifications of excluding juror allegations of prejudice.

But those hopes were squashed when I read the Supreme Court of Pennsylvania's opinion in Commonwealth v. Steele, 2008 WL 5250893 (Penn. 2008).  Steele sounds a lot like Smart.  Roland William Steele, an African-American man, was convicted of three counts of first-degree murder, two counts of robbery, and two counts of theft by unlawful taking based upon his alleged killing of three Caucasian women.  Like Smart, Steele filed a PCRA, and that motion was denied, leading to his appeal to the Pennsylvania Supremes.

One of Steele's claims in his PCRA was that "his due process rights and right to a fair and impartial jury were violated by [inter alia] the racial prejudice of one of the jurors."  Specifically, Steele referenced a

     "declaration of one of the jurors, [Mr. Mellow,] who stated that race was an issue from the inception of the trial. The juror stated in his declaration that 'early in the trial one of the other jurors commented on the race of the defendant. He also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty....'  The juror continued:

     I was upset that he would articulate his prejudice and speculate on the guilt of the defendant, ignoring the instructions of Judge Bell.... His comments continued at other breaks and he made very racist remarks. First one juror, then two or three more gradually became drawn to his position as the first week wore on. These jurors also belittled the efforts of the defense lawyer. They were openly critical of him and actually made fun of him....

     The juror also stated that the juror that made the racist remark said, during the trial, that [Steele] should 'fry, get the chair or be hung."

And this is where Steele diverges from Smart.  While Smart was given life imprisonment without the possibility of parole, the racist juror's wishes in Steele were granted:  Steele was given three separate death sentences.

So, what did the Supreme Court of Pennsylvania do with this claim?  Did it allow Steele to introduce the declaration upon the recognition that "death is different?"  Did it recognize the Constitutional ramifications of its decision but lamentably apply the strict language of Pennsylvania Rule of Evidence 606(b) and exclude the declaration?

Unfortunately, the answer is "no and no."  Instead, in a curt conclusion that seemed completely insouciant to the fact that it had a man before it sentenced to die and extreme allegations of racial prejudice and influence, the court found that

     "Despite [Steele's] contentions, the exception to the general no impeachment rule is not implicated here. The exception only applies to outside influences, not statements made by the jurors themselves.... Here, one particular juror made some troubling statements. However, these statements were not based on any evidence not of record, or on any outside influences. Rather, one juror was attempting to influence the other jurors' opinion, although it was done inappropriately before deliberations. Indeed, Mr. Mellow's declaration states that the juror '... seemed to prey on the weaker jurors and tried to sway them....' Nevertheless, the influence here was internal, not from outside sources. Once the verdict was entered, the jurors, including Mr. Mellow, became incompetent to testify regarding any internal discussions or deliberations."

I mean no offense to the Supreme Court of Pennsylvania, but I have to ask, "How can you be so cold?"  I'm not typically a person who shows much emotion, but I welled up reading the court's opinion.  How could the court be so matter of fact with the stakes involved in this case?  How could they not address the Constitutional issues raised by Steele, even if it ultimnately rejected them?  I feel sick to my stomach, and it looks to me like the Justices gave Steele's claim as much consideration as a request by their children to buy them a candy bar at the grocery checkout aisle.  I'm sure that's not the case, but how else would a person reading the opinion take it?

As readers of this blog know, the article I am submitting to law reviews this spring addresses the exact issue raised in Steele, and I can only hope that I can change a few hearts and minds by claiming that decisions such as the decision of the Supreme Court of Pennsylvania violate the right to present a defense.      

-CM

To The Payne: Supreme Court Of Idaho Vacates Death Sentence Based Upon Improper Victim Impact Statements

Last month, I posted an entry lamenting the United States Supreme Court's refusal to grant cert in two victim impact statement appeals.  One of those impact statements can be found on the Supreme Court's website, and, as you can see, it not only contains images of the victim and statements concerning the effect of her death on her family, but also Enya music and a clip of wild horses running free.

The basis for my displeasure was that in Payne v. Tennessee, 501 U.S. 808 (1991), the Supreme Court held that the Eighth Amendment does not place a per se bar on admitting victim impact statements in the sentencing phase of capital murder trials, but also held that:

     "[i]f, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment."   

The basis for my displeasure was that, as Justice Stevens mused in dissent,

     "At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence.  Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use."

Well, even without that guidance, the Supreme Court of Idaho in State v. Payne, 2008 WL 5205959 (Idaho 2008), was recently able to determine that victim impact statements rendered a defendant's sentencing proceeding fundamentally unfair and thus vacated his death sentence and remanded for resentencing.

In Payne, a district court sentenced Darrell Edward Payne to death for the murder of Samantha Maher after a jury found him guilty of kidnapping, raping, robbing, and murdering her.  Payne subsequently appealed, claiming, inter alia, that the admission of "inflammatory” and inadmissible victim impact statements violated his constitutional rights.

These victim impact statements included:

     "an excessive number of letters from family members and friends, many of which stated the author's opinions about Payne, his character and the crime. Additionally, numerous family members and friends testified at the sentencing hearing and gave their opinions about Payne, his character and the crime. During the full day of victim impact testimony, described Payne as evil, a waste of aspirin, a sociopath, a cold-blooded killer, unremorseful, a predator, cold and calculating, not a man, not even human, selfish, a coward, a pathetic monster, a wimp and a man without a conscience. Witnesses also expressed their wishes that Payne 'rot in hell,' 'burn in hell' or be tortured." 

Moreover, "[o]ne witness noted Bible passages he wished the court to consider; each passage called for death for a certain crime."  Specifically,

     "[t]his witness stated: 'As in the Good Book there's some scripture numbers I'd like to put into the record but I will not read them. Numbers 35:16, Deuteronomy 24:7, and the two special young women [Payne raped in Barber Park, Deuteronomy] 22:25.' Numbers 35:16 states, 'If a man strikes someone with an iron object so that he dies, he is a murderer; the murderer shall be put to death.' Deuteronomy 24:7 states, 'If a man is caught kidnapping one of his brother Israelites and treats him as a slave or sells him, the kidnapper must die. You must purge the evil from among you.' Deuteronomy 22:25 states, 'But if out in the country a man happens to meet a girl pledged to be married and rapes her, only the man who has done this shall die.'"

And while the United States Supreme Court has not set forth clear guidance on what can be included in victim impact statements, the state of Idaho has.  According to I.C. Section 19-2515(5)(a),

     "Information concerning the victim and the impact that the death of the victim has had on the victim's family is relevant and admissible. Such information shall be designed to demonstrate the victim's uniqueness as an individual human being and the resultant loss to the community by the victim's death. Characterizations and opinions about the crime, the defendant and the appropriate sentence shall not be permitted as part of any victim impact information."

Applying this standard to the above statements, the Idaho Supremes concluded that "[t]hese statements [we]re characterizations and opinions about Payne, the crime, his appropriate punishment, and calls to religious authority as the basis for punishment; as such, none of these statements were admissible."  It then vacated Payne's sentence and remanded for resentencing because there was "a reasonable doubt as to whether the evidence contributed to Payne's sentence."  And looking at the facts of Payne's case, I don't see how the court could have ruled any other way.

-CM

The Hands That Hold The Privilege: Cape May Murder Trial Reveals That New Jersey Places Confidential Marital Communications Privilege In Hands Of Both Spouses

A murder trial in Cape May, New Jersey gives me the opportunity to delve into New Jersey's confidential marital communications privilege.  The state has charged Jesse Watkins with first-degree murder in connection with his alleged killing of Craig White.  And according to Superior Court Judge Raymond Batten, Watkins' ex-wife, Karen Fox, will be able to testify at trial regarding Watkins' private confession to her.

According to Fox, in 1990, before her marriage to Watkins, she disclosed to him that she had an abortion before she met him.  Watkins then revealed a secret of his own:  He had learned that Fox was also dating White, his cousin, so he "took White out to a field, had him dig a hole and then shot him with a shot gun."  Notwithstanding this confession, Watkins and Fox later married in 1997 and divorced in 2000.

So, why wasn't Watkins' confession to Fox covered by New Jersey's confidential marital communications privilege?  Well, without even having to look at the privilege, it is clear that the confession was given before the couple was married, meaning that Fox could testify about it under any state's version of the privilege.  When we look at New Jersey's version of the privilege, though, we see that it has some eccentricities.  According to New Jersey Rule of Evidence 509,

     "No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2) [Rule 501(2)]. When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be a privileged communication."

The first point I want to make about this privilege is that it is the rarest type of confidential marital communications privilege.  The vast majority of states place the privilege either in the hands of the defendant spouse, who can prevent his spouse from testifying against him, or in the hands of the testifying spouse, who can choose whether to testify against the defendant spouse.  New Jersey is thus one of very few states that requires the consent of both spouses to have the privilege waived.

The second point is that I have come across very few confidential marital communications privileges that address the separation situation (although some courts read these in).  So, according to New Jersey, if you have a "War of the Roses" type situation where spouses are separated but living under the same roof, the privilege still applies.  And if spouses are separated and living apart but they briefly reconcile for a night of passion, the privilege still applies as well.      

-CM

What Kind Of Right?: Seventh Circuit Suggests In Dicta That Right To Present A Defense Could Apply To Discretionary Evidentiary Rulings

It is well established in Supreme Court precedent that:

     "[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense." Crane v. Kentucky, 476 U.S. 683, 690 (1986).

And in every Supreme Court case finding that a court's application of a rule of evidence violated a defendant's right to present a defense, the rule applied by the court has been a per se rule of exclusion.  But can a court only violate a defendant's right to present a defense through mechanistic application of per se rules of exclusion? 

That was the approach taken by the Ninth Circuit in Moses v. Payne, 2008 WL 4192031 (9th Cir. 2008).  As I noted in a previous post, the Ninth Circuit found that a trial court's refusal to allow a defendant to admit expert testimony pursuant to Washington Rule of Evidence 702 could not have violated his right to present a defense because:

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

Well now, in its recent opinion in Simonson v. Hepp, 2008 WL 5134700 (7th Cir. 2008), the Seventh Circuit has suggested in dicta that a court can violate a defendant's right to present a defense through a discretionary evidentiary rule such as Rule 702.

In Hepp, Chas Simonson was convicted of sexually assaulted his seven-year-old daughter.  And some of the evidence used to prove that the daughter was sexually assaulted was the testimony of Nurse Julie Kennedy-Oehlert, who testified that the daughter's hymenal tissue along the lower portion of her vagina was "virtually missing."  In her opinion, the only explanation was insertion of an object, such as a man's penis.

To counter this testimony, Simonson sought to develop an alternate explanation for the hymenal damage. He made an offer of proof that his daughter was severely constipated when she was one year old, and that her mother and grandmother attempted to extract the stool by pressing their thumbs against her rectal and vaginal areas as if they were trying to "pop a pimple." The state trial judge disagreed and precluded Simonson from presenting expert testimony on this issue because "[o]rdinary experience and common sense" did not reveal the link between the alleged cause and effect."

On Simonson's appeal, the Seventh Circuit affirmed, concluding that

     "[w]hile there is some intuitive merit to the idea that pressure near the vaginal and rectal areas could result in tearing of the hymen, it is far from obvious. It is not like asking a jury to consider, say, the fact that a blow from a baseball bat can lead to a broken limb. Nevertheless, it is tempting to buy Simonson's argument that there was relevant expert testimony available-Kennedy-Oehlert's statement that the hymen generally stays intact "unless there is some pressure put directly on that tissue or near that tissue." It is tempting, we say, but not wholly convincing. It was reasonable to hold that this testimony did not suit the purpose because Kennedy-Oehlert announced this general proposition only as background to her specific conclusion (that the injury was caused by insertion of an object). Kennedy-Oehlert probably would have been surprised to learn Simonson's application of her testimony. That's how the state courts saw it, and we are not prepared to label that view objectively unreasonable."

So, the Seventh Circuit found no violation of Simonson's right to present a defense, but as you can see in the dicta from the above block quote, it might have found such a violation in, say, an assault case, where the defendant was trying to argue that a victim's injuries were caused by a bat-wielding co-defendant rather than by the defendant's fists. 

Readers of this blog know that I am a big fan of a broad reading of the right to present a defense (indeed, my next article argues that it should apply to allegations of racial/religious prejudice by jurors), so why do I disagree with the Seventh Circuit's dicta, and why did I previously agree with the Ninth Circuit's ruling?

Well, the right to present a defense applies to cases where judges follow the letter of a per se evidentiary rule and thus exclude evidence despite the exclusion violating the spirit of the law and/or the ends of justice.  Conversely, when a trial judge improperly applies a discretionary rule of evidence, such as by excluding expert evidence that a bat can break a limb, an appellate court can simply find that the judge abused his discretion and order a new trial on evidentiary grounds without having to resort to the right to present a defense.

-CM   

The Hand That Holds The Privilege: Case Reveals That Military Rule Of Evidence Places Confidential Marital Communications Privilige In Hands Of Speaker

The recent opinion of the United States Air Force Court of Criminal Appeals in United States v. James N. Durbin, 2008 WL 5192441 (A.F.Ct.Crim.App. 2008), reveals that the holder of the confidential marital communications privilege under the Military Rules of Evidence is the spouse making the statement at issue.

In Durbin, around midnight on a night in March 2005, Ms. GD, then the wife of James Durbin, was doing homework on his laptop computer, whereupon she discovered what she believed to be child pornography. After discovering the images, she woke her husband and demanded an explanation. And after initially denying knowledge of how the images got on his computer, he claimed that "it was just a one-time thing" and promised to delete the images. Ms. GD told her husband that he was sick, that he needed help, and demanded that he leave their residence.

Subsequently, a panel of officers sitting as a general court-martial found James Durbin guilty of one specification of wrongfully possessing child pornography based in part upon the Ms. GD's testimony about what she told him after discovering the alleged child pornography.  And part of the basis for his appeal was that her testimony was rendered in violation of Military Rule of Evidence 504(b), its confidential marital communications privilege, which states in relevant part that:

     "A person has a privilege during and after the marital relationship to...prevent another from disclosing, any confidential communication made to the spouse of the person while they were husband and wife and not separated as provided by law....[T]he privilege may be claimed by the spouse who made the communication or by the other spouse on his or her behalf."

Of course, the problem for the defendant was the last portion of the rule, which places the privilege in the hands of the spouse who made the confidential communication, his wife, and because she "opted to disclose her communications she had with [him],...the military judge did not abuse his discretion in admitting her statements."

I thus agree with the court's opinion on the privilege issue, but I also wonder why the wife's statements were not deemed inadmissible hearsay, an issue which the opinion did not address.  I suppose that if the wife's statements were made immediately after viewing the images, they could have constituted present sense impressions.  And if we can characterize viewing what one believes to be child pornography as a startling event, and we can assume that the wife was still under the stress of that startling event when she spoke to her husband, her statements could have constituted excited utterances.  But I would need to know more about the facts of the case to make either of those conclusions.

-CM

Motor City Mistake: Judge's Cutting Short Of Pre-Trial Examination Renders Former Testimony Exception Unavailable

According to an article in the Detroit News, "[a] mistake by 36th District Court Judge Miriam Martin-Clark led to charges being thrown out against an auto mechanic accused of beating a man with a lead pipe in an argument over a $17,500 real estate deal gone bad, according to the Michigan Court of Appeals."  And the article is right.

In People v. Al-Lahham, 2008 WL 5158897 (Mich.App. 2008), the prosecution charged Mohamed Al-Lahham with assaulting Marlon Ozier with intent to commit murder.  Subsequently, during a pre-trial examination of Ozier, defense counsel began to explore inconsistencies between Ozier's statements to the police and his testimony at the examination, resulting in the following exchange:

     "THE COURT: Okay. We're closing this out, Mr. Cripps [defendant's counsel]. I assume you're done.

     MR. CRIPPS: No, I'm not done.

     THE COURT: Well, you are, you are. I'm not allowing you anymore questions. The Court gave you fair warning, five minutes. It's now after five minutes, so the Court is not allowing anymore questions by you of this witness.

     MR. CRIPPS: I object to that, but you're the Court, you're cutting me off.

     THE COURT: You cannot object. I'm cutting you off. It is now 1:21. This Court is not supposed to take the staff through the lunch break and we have done that and we have allowed you a great latitude to question this witness. You're cut off. You're cut off. Mr. Burton [the prosecutor], if you have anything brief you may ask it, otherwise I'm going to excuse this witness. This is ridiculous."

At this point, defendant's counsel explained that he had only been cross-examining Ozier for twenty minutes and asked to adjourn for lunch and continue the cross-examination afterwards, but the court refused.  The court noted that the standard for a preliminary hearing was different than that for a trial and that the testimony and evidence defendant's attorney's wanted to present went to questions of fact that would "be determined by the next-at the next stage of the proceeding...."

But this testimony would not be forthcoming because Ozier was murdered before trial, and Al-Lahham wasn't a suspect in his killing.  But the prosecution wanted to admit Ozier's testimony from the pre-trial hearing pursuant to Michigan Rule of Evidence 804(b)(1), the former testimony exception to the rule against hearsay, which in relevant part renders admissible:

     "[t]estimony given as a witness at another hearing of the same... 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."

The trial court, however, found Ozier's testimony to be inadmissible, and the Michigan Court of Appeals affirmed.  It did not do so, however, on the ground that the former testimony exception was inapplicable.  Indeed, the court noted that "[i]n the present case, there is no doubt that Ozier is unavailable and that defendant's counsel did in fact have some opportunity to cross examine Ozier." 

The court, however, found that this conclusion did "not end the inquiry." Instead, it found that admission of Ozier's testimony would violate the Confrontation Clause because

     "[t]he Confrontation Clause does not require that the defendant be afforded only some opportunity to cross-examine the witnesses against him; rather, it requires that the defendant be afforded the opportunity to effectively cross-examine the witnesses against him."

I agree with this Confrontation Clause conclusion by the court, but I disagree with its hearsay ruling.  Just as the Confrontation Clause requires the opportunity to effectively cross-examine and not merely some opportunity to cross-examine, the former testimony exception requires a full and fair opportunity to develop testimony, not just some opportunity to do so. See, e.g., People v. Harris, 2001 WL 1004367 (Mich.App. 2001).

In the end, though, the evidentiary result was the same, and because it left the Wayne County Prosecutor's office without enough evidence to convict Al-Lahham, they dropped the case against him."

-CM

Mississippi Confidential: Supreme Court Of Mississippi Finds Patient's Threats To Judges Not Covered By Psychotherapist-Patient Privilege

As was noted by the Supreme Court of Mississippi in its recent opinion in Hearn v. State, 2008 WL 5173879 (Miss. 2008), for the psychotherapist-patient privilege to apply, it must have been the patient's intent that his statements to his psychotherapist be kept confidential. 

In Hearn, Michael Henry Hearn was convicted on two counts of intimidating a judge.  And the judges whom he allegedly intimidated were Judge Larry E. Roberts, who was the judge in an aggravated assault trial against Hearn and who also disposed of drug-related charges against him, and Judge Robert Bailey, who substituted for Judge Roberts at a plea hearing on those drug-related charges against Hearn.   

Around the same time that Hearn filed for post-conviction relief in connection with his aggravated assault conviction, he began sending to the judges a string of letters that "were mostly incoherent, and laden with obscene language and biblical references."  Neither judge gave these letters much consideration until Judge Roberts received a disturbing letter from Dr. Tom Moore, a psychologist at East Mississippi Correctional Facility (where Hearn was housed), which stated that:

     "I was instructed to evaluate [Hearn's] mental status following repeated threats to harm (kill) [Judge Roberts and Judge Bailey]....His release date is 12/26/05, after which he asserts that he plans to carry out his threats to harm.

     I met with [Hearn] on 7/29/04 for approximately one hour. During that initial session he reported that he would carry out his threats to harm the two judges whom he feels unjustly incarcerated him for 'the stabbing incident...where I was just trying to defend myself.' The inmate perceives that he is '..justified, 'out of love..,' [sic] to correct the injustice. He is willing (“eager”) to risk incarceration again to complete his goal. On 8/13/04 the inmate approached the undersigned in the hall to question whether this letter was sent to the two judges. He again verbalized vehemently his intentions to do harm.

     The medical and mental health personnel have mixed judgments regarding whether the inmate is serious about following through with his intentions to harm. There is a consensus, however, that he is more than capable of causing harm.

     There is enough evidence based upon diagnosis and presenting behaviors that the inmate presents a threat to the judges in question...."

This letter was then essential to Hearn's conviction on two counts of intimidating a judge and played a large role in his appeal.  According to Hearn, his statements to Dr. Moore were covered by Mississippi Rule of Evidence 503(b), its psychotherapist-patient privilege, which states in relevant part that

     "[a] patient has a privilege to refuse to disclose and to prevent any other person from disclosing...confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition...."

The Supreme Court of Mississippi, however, first found that Dr. Moore could disclose Hearn's statements to him pursuant to Mississippi Code Annotated Section 41-21- 97, which states in relevant part that

     "[H]ospital records of and information pertaining to patients at treatment facilities or patients being treated by...psychologists...shall be released...when the patient has communicated to the treating... psychologist...an actual threat of physical violence against a clearly identified or reasonably identifiable potential victim or victims, and then the treating...psychologist...may communicate the threat only to the potential victim or victims, a law enforcement agency, or the parent or guardian of a minor who is identified as a potential victim."

The Court, however, further found that it did not even need to rely upon this Section because Mississippi Rule of Evidence 503(b)

     "protects only confidential communications which are not intended to be disclosed to third parties....Hearn asked Dr. Moore in the hallway whether the two judges had been warned. When Dr. Moore said that he had done so, Hearn approved. By intending to disclose his communications to a third party, Hearn waived any and all rights under the psychotherapist-patient privilege."

This seems like the correct conclusion to me.  It appears clear that Hearn wanted Dr. Moore to communicate his threats to the judges, meaning that Hearn did not intend for the threats to be confidential and thus that they were not protected by the psychotherapist-patient privilege,

-CM

Judiciary Under The Influence, Take 3: New Jersey Faces Observation Period Problems With Alcotest

I've written two previous posts (here and here) about the New Jersey controversy over its Breathalyzer alternative, the Alcotest 7110 MK III-C, a breath alcohol testing technology which uses both infrared and electromechanical analysis as a dual system of chemical breath testing.  Without rehashing that controversy, I think that it is enough to say that

     -the Supreme Court of New Jersey had questions about the reliability of that test;

     -appointed retired appellate judge Michael Patrick King as special master to investigate the technology and report his findings on it;

     -Judge King initially reported that the technology was unreliable in a 268 page report;

     -Judge King later reversed himself in a 108 page report, which indicated that despite "minor defects" with the technology, it is more reliable than the Breathalyzer; and

     -the Supreme Court of New Jersey found that the Alcotest was sufficiently reliable to be used in drunk driving prosecutions, but only if officers follow certain procedures such as observing suspects for twenty minutes before administering the test.

At the time of those posts, I mused whether the court was acting based upon actually thinking that the test is reliable or whether it was a "judiciary under the influence" because 10,000 drunken driving prosecutions involving the test were put on hold while the Court decided whether the test was reliable and admissible.

Even assuming propriety by the Court, however, do we have practicality?  I didn't report on the case of New Jersey Judge Peter Toursison at the time, but I now present to you abbreviated facts of what he did during the twenty minute observation period that has to precede the administration of the Alcotest:

     "Tourison attempted to apply Chapstick to his lips, which delayed the Alcotest. According to protocol for operating the device, nothing can be in or around a driver's mouth for 20 minutes before the test is administered. When the police took the Chapstick away, Tourison produced and used another tube before it, too, was confiscated.

     Then, when a patrolman turned his back, Tourison placed a penny in his mouth. It's a common ploy, says Herbert Leckie, of DWI Consultants in Lebanon, N.J., who trains lawyers and police on Alcotest operation. While the penny won't affect the test, the presence of an object in a suspect's mouth may show the officer didn't perform a proper oral inspection, thus fouling the testing process."

Now, Judge Tourison did later plead guilty to DWI, but Plainfield Police Officer Rodney Sanders may be luckier.  Sanders claimed that after North Plainfield Officer Robert DeJesus pulled him over for suspected DWI, he failed to comply with the 20 minute observational period because he only had him perform two field sobriety tests.  Meanwhile, (in addition to insisting that he kept an eye on Sanders for 24 minutes, making sure he did not burp, regurgitate or go to the bathroom in that time period), DeJesus has claimed that he only administered two field sobriety tests "to save Sanders the embarrassment, knowing Sanders was a policeman who had served longer than he."

It seems to me that when you potentially have problems with your breath alcohol test based upon pennies, chapstick, and deferential police officers, you don't have a very good test, and I wonder whether the Court might eventually changed his mind if some similar problems become evident.

-CM