EvidenceProf Blog

Thy Son And Daughters True: False Imprisonment Appeal Reveals Broadness Of Minnesota's Prior Consistent Statement Rule

The recent opinion of the Court of Appeals of Minnesota in State v. Samuel, 2009 WL 170772 (Minn.App. 2009), reveals that Minnesota's prior consistent statement rule, Minnesota Rule of Evidence 801(d)(1)(B), is much broader than its federal counterpart, Federal Rule of Evidence 801(d)(1)(B).  And the consequence of that difference was that a statement that would have been inadmissible under the federal rule was admissible under the Minnesota rule in Samuel.

In Samuel, a jury found Meron Samuel not guilty of charges of burglary and criminal sexual conduct, but guilty of false imprisonment based upon an encounter in an apartment building during a late-night party.  BD was the alleged victim of Samuel's criminal sexual conduct and one of the alleged victims of his false imprisonment.  After the late-night party, BD gave a recorded police statement in which she claimed that Samuel committed acts of sexual assault and false imprisonment against her, and she later provided testimony consistent with that statement at trial.  Then, without defense counsel claiming that BD had recently fabricated her testimony or that her testimony was based upon an improper motive or influence, the prosecution introduced into evidence BD's recorded police statement.

On appeal, Samuel claimed, inter alia, that the trial court erred in admitting BD's recorded police statement as a prior consistent statement.  And if his case were being heard under the Federal Rules of Evidence, he would have been correct.  Federal Rule of Evidence 801(d)(1)(B) indicates that:

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

Minnesota Rule of Evidence 801(d)(1)(B), however, indicates that:

     "A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is....consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness."

And the 1989 Committee Comment to Minnesota Rule of Evidence 801 makes clear that this difference in language is not merely a stylistic deviation but an intentional substantive departure from the Federal Rule.  According to the Committee Comment,

     "As amended, Rule 801(d)(1)(B) permits prior consistent statements of a witness to be received as substantive evidence if they are helpful to the trier of fact in evaluating the credibility of the witness. Originally, Rule 801(d)(1)(B) applied only to statements that were offered to rebut a charge of recent fabrication or undue influence or motive. The language of the original rule, if read literally, was too restrictive. For example, evidence of a prior consistent statement should be received as substantive evidence to rebut an inference of unintentional inaccuracy, even in the absence of any charge of fabrication or impropriety. Also, evidence of prompt complaint in sexual assault cases should be received as substantive evidence in the prosecution's case in chief, without the need for any showing that the evidence is being used to rebut a charge of 'recent fabrication or improper influence or motive.'"

And, as is clear from this last sentence, BD's prompt complaint of sexual assault was admissible without the need for any showing that it was being used to rebut a charge of recent fabrication or improper influence or motive.

-CM

Let's Make A Deal: Supreme Court Of Pennsylvania Correctly Affirms Rule 410 Ruling But On Wrong Grounds

I agree with the conclusion of the Supreme Court of Pennsylvania in Commonwealth v. VanDivner, 2009 WL 153221 (Pa. 2009), but disagree with its reasoning.

In VanDivner, James VanDivner was convicted of the first-degree murder of Michelle Cable, criminal attempt to commit criminal homicide with respect to Billy Cable, and the aggravated assault of Cable family friend Larry Newman.  VanDivner was later given a death sentence (as well as a consecutive sentence of 20 to 40 years for the attempted homicide of Billy Cable and a sentence of 10 to 20 years for the aggravated assault of Larry Newman).  Frankly, I am a bit confused from the VanDivner opinion and articles on the case as to whether VanDivner knew the Cables before the subject crimes, but I do know that VanDivner subsequently appealed, claiming, inter alia,

     (1) that the death penalty was improperly imposed because he was mentally retarded (the Pennsylvania Supremes found that the trial court acted properly in finding that VanDivner was not mentally retarded); and

     (2) that the trial court improperly admitted evidence of his plea discussions in violation of Pennsylvania Rule of Evidence 410.

The alleged plea discussions occurred when VanDivner was being taken into an interview room at the Pennsylvania State Police barracks after the subject crimes, and he blurted out to Trooper James Monkelis, "This is a death penalty case and I don't want the needle, life for a life. Tell the DA I will plead guilty to life. I would have killed myself if I knew Michelle was dead."

Pennsylvania Rule of Evidence 410 states in relevant part that:

     (a)  General rule. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

          (1)  a plea of guilty which was later withdrawn;

          (2)  a plea of nolo contendere;

          (3)  any statement made in the course of any proceedings under Rules 409, 414, 424, 311, 313, or 590 of the Pennsylvania Rules of Criminal Procedure, Fed. R. Crim. P. 11, or any comparable rule or provision of law of Pennsylvania or any other jurisdiction regarding the pleas identified in subsections (1) and (2) of this rule; or

          (4)  any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn."

Therefore, VanDivner was invoking Pennsylvania Rule of Evidence 410(a)(4), and according to the Supreme Court of Pennsylvania, he did so unsuccessfully.  According to the court,

     "Rule 410 of the Pennsylvania Rules of Evidence provides that statements made during plea negotiations are not admissible in evidence against the defendant participating in the plea negotiations. Here, however, there is no suggestion that plea negotiations were ongoing at the time appellant made his statement to police. Rather, he had been apprehended a short time before spontaneously making the challenged statement to police. Appellant takes an absolute position on this, resting upon his suggestion that the statement was a negotiation. But the very word 'negotiation' posits the participation of two parties and not unilateral conduct. Here, there was no such negotiation, and thus, Rule 410 exclusion is not implicated."

As I noted above, I agree with this conclusion, but I disagree with the court's reasoning.  And the reason for my disagreement is that the court did not even need to address the unilateral nature of VanDivner's conduct because it was apparent that he was not talking with "an attorney for the prosecuting authority" or its agent.  As I noted in my article, Caveat Accused,

     "Based on disputes among courts over how to apply Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule of Evidence 410 (and upon which Pennsylvania Rule of Evidence 410 is based)..., the Rules were amended in 1979 to provide clarification.  The first dispute was over whether the Rules operated to make plea negotiations between an accused and law enforcement officials inadmissible or whether they only applied when the discussion was between the accused (or his attorney) and a government attorney.  The Advisory Committee found that 'a literal reading of these two rules could reasonably lead to the conclusion that a broader rule of admissibility obtains....'  The Advisory Committee decided that this broader rule was incorrect because the legislative history behind the Rules indicated that their purpose was to allow candor in plea negotiations between the 'attorney for the government and the attorney for the defendant or the defendant when acting pro se ....'  Because this purpose related solely to communications with a government attorney, the Rules were amended so that plea negotiations with law enforcement officials were not covered by it, but were instead covered by the 'body of law dealing with police interrogations.'"

In other words, even if there were a bilateral exchange, VanDivner's statements still would have been inadmissible because he was not speaking to a prosecutor or his agent.

-CM

Must Love Dogs: Texas Appellate Court Finds Trial Court Properly Excluded Habit Evidence In Animal Cruelty Case

In its recent opinion in Vevrecka v. State, 2009 WL 179203 (Tex.App.-Hous. 2009), the Court of Appeals of Texas found that a trial court did not err in precluding a defendant from presenting evidence of her habit of taking care of other animals in her trial for cruelty to her five dogs.  And I agree with the court's opinion.

In Vavrecka, a police officer responded to a complaint that several dogs on the property of Jill Young Vavrecka appeared to be abandoned and in distress.  That officer spotted two dogs that looked malnourished and emaciated, with no visible food or water nearby.  After entering the property, the officer noticed that the dogs' food was infested with bugs and strewn with trash, with an unreachable water barrel some distance away.

The two dogs were covered with fleas, and the officer subsequently found three other dogs in similar condition in a back-yard pen. He also noticed the strong smell of urine and fecal matter, which covered the areas where the dogs were confined.  The officer thereafter called Animal Control, which eventually removed the dogs from the property.

When Vevrecka learned that Animal Control had removed the dogs, she attempted to get the dogs back. Understandably, Animal Control petitioned a justice of the peace to release the animals to its care to prevent the animals from being returned to Vevrecka. The justice of the peace granted that petition and ordered the dogs to be released to Animal Control.  But heartbreakingly, while one of the dogs was adopted, the other four had to be euthanized because they suffered from disease.

Vevrecka was later charged with a misdemeanor offense of cruelty to animals and convicted after a jury trial.  Vevrecka subsequently appealed, claiming, inter alia, that the trial judge incorrectly prevented her from presenting habit evidence under Texas Rule of Evidence 406, which states that:

     "Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice."

Under this Rule, the trial court actually permitted a line of questioning as to Vavrecka's habit and routine of care as to the five dogs at issue.  But the court precluded her from presenting evidence concerning her past practice and routine of caring for other stray animals and nursing them to health because it was inadmissible character evidence, not permissible habit evidence.

I think that this distinction makes sense when we look at the Advisory Committee's Note to Federal Rule of Evidence 406, the federal counterpart to Texas Rule of Evidence 406.  According to that Note,

     "Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. 'Habit,' in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving."

Looking at this Note, we can see why the habit evidence regarding Vevrecka's habit and routine of care as to her five dogs was admissible.  Ostensibly, that evidence (which is not explained in any detail in the opinion) revealed that she had the regular response of diligent care to the specific situation of having those five dogs on a day in, day out basis (although the facts of the case would suggest that it was not so regular). 

Conversely, the evidence regarding her care for other stray animals was either simply generalized character evidence regarding her character for care (of animals), or it was indeed habit evidence, but not evidence of a habit relevant to her trial.  It was evidence that she had a regular response of diligent care to the repeated specific situation of having these other stray animals temporarily. 

I think an analogy explains why this was not sufficient habit evidence.  Assume that Vevrecka were accused of child endangerment/abandonment regarding her children and wanted to present "habit" evidence concerning her diligent care of children in her role as a Big Sister or temporary foster parent.  This might be evidence of some type of habit by the accused, but it would not be evidence of a habit relevant to her trial for child endangerment/abandonment regarding her children on an everyday basis.

-CM      

Used To Love Her: Florida Appellate Court Upholds Admissibility Of Google Searches In Murder Appeal

In its recent opinion in Barber v. State, 2009 WL 151026 (Fla.App. 5 Dist. 2009), the District Court of Appeal of Florida, Fifth District, rejected the defendant's argument that the trial court improperly allowed for the admission of Google searches recovered from his computer.  Unfortunately, the court neither stated that grounds for his appeal nor its reason for rejecting it.

In Barber, Justin Barber was convicted of first-degree murder with a firearm for the killing of his wife and sentenced to life in prison.  It was undisputed at trial that Barber and his wife were celebrating a belated third wedding anniversary in April 2002 on a desolate strip of beach located between Ponte Vedra and St. Augustine.  According to Barber, his wife and he were accosted by an unknown assailant as they walked along the ocean, the assailant shot and killed his wife at the surf's edge, and Barber dragged her body to the dune walkover before going for help.  But according to the State, Barber half-drowned his wife in the ocean, then dragged her to the end of the dune walkover, where he shot and killed her.

The State's theory was bolstered by its investigation, which revealed that

     (1) a $2 million life insurance policy covering the lives of both Barber and his wife had been obtained the year before;

     (2) in the months prior to the murder Barber had conducted a Google searches of terms such as "trauma, cases, gunshot, right chest" and "Florida & divorce;"

     (3) Barber had several affairs during his marriage, including a few months prior to the murder;

     (4) on the day of his wife's death, Barber downloaded the Guns N' Roses song "Used to Love Her (But I Had To Kill Her)" Guns N' Roses entitled “Used to Love Her (But I Had To Kill Her)."

After Barber was convicted, Barber appealed, claiming, inter alia,

     "that the trial court erred in denying his motions in limine directed at precluding the State from introducing evidence of (a) his extramarital affairs; (b) his computer search of the terms mentioned; and (c) the $2 million life insurance policy insuring the lives of Barber and his wife."

Unfortunately, the opinion in Barber did not explain how Barber claimed that these pieces of evidence were inadmissible, and the court simply affirmed the trial court's rulings "without further discussion."  Filling in the first and third blanks, I would guess that Barber claimed that any probative value that the insurance policy and extramarital affairs had on the issue of his motive under F.S.A. Section 404(b) was substantially outweighed by the danger of unfair prejudice, making the evidence inadmissible under F.S.A. Section 90.403.  Unfortunately, the brevity of the court's opinion doesn't give me the ability to address this issue with much detail, but I think it suffices to say that both of these pieces of evidence would potentially be strong evidence of motive.

Next, with regard to the Google searches, I would guess that Barber claimed that they were inadmissible hearsay.  But even if these were "statements" by him offered by the prosecution to prove the truth of the matter asserted, they were the statements of a party opponent -- the criminal defendant -- and thus admissible under F.S.A. Section 90.803(18)(a).  Indeed, similar internet searches have been deemed admissible in the recent Jensen trial from Wisconsin and a few other trials mentioned by cnet in an article on the case.

-CM      

Lost In Translation: Court Of Appeals Of Texas Opinion Indicates That Texas Has A Ninth Rule Of Evidence Under Article X

The recent opinion of the Court of Appeals of Texas in Onwuteaka v. Commission For Lawyer Discipline, 2009 WL 136886 (Tex.App.-Houston 2009), reveals that the Texas Rules of Evidence have one more Rule of Evidence under Article X than do the Federal Rules of Evidence.

In Onwuteaka, Edin Perez and Erwin Jimenez sustained personal injuries in an automobile accident and hired attorney Joseph Onwuteaka to represent them in their personal injury matters.  Upon becoming dissatisfied with Onwuteaka's representation, Perez filed a Spanish language grievance with the State Bar of Texas.  Thereafter, Onwuteaka elected to have his disciplinary matter tried in district court before a judge, who entered a judgment against Onwuteaka and imposed a three-year fully probated suspension from the practice of law and monetary sanctions.

Onwuteaka subsequently appealed, claiming, inter alia, that that the trial court abused its discretion by admitting a translated version of Perez's State Bar complaint.  Onwuteaka claimed that the English translation of Perez's complaint failed to comply with Texas Rule of Evidence 1009(a), which states that:

     "[a] translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial."

According to Onwuteaka, the affidavit submitted by the Commission For Lawyer Discipline failed to articulate the translator's qualifications.  The Court of Appeals of Texas, however, found this argument to be without merit because:

     "the trial court did not admit the English translation. Rather, the court sustained Onwuteaka's objection with respect to the English-translated version and admitted only the original Spanish version."

Notwithstanding the inapplicability of Texas Rule of Evidence 1009(a) to Onwuteaka's trial, I think it makes Article X of the Texas Rules of Evidence an improvement over Article X of the Federal Rules of Evidence, which ends with Federal Rule of Evidence 1008.  It seems to me to be the necessary compliment to Rule of Evidence 604, which states that:

"[a]n interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation."

-CM

Area Of Expertise: Iowa District Court Finds that Experts Can't Render Duress/Coercion Testimony In Drug Trial

The recent opinion of the United States District Court for the Southern District of Iowa in United States v. Ceballos, 2009 WL 105692 (S.D. Iowa 2009), provides a nice illustration of some of the expert testimony that a criminal defendant cannot present regarding her mental condition pursuant to Federal Rule of Evidence 704(b).

In Ceballos, Heather Marie Ceballos was charged with acting as an interpreter during a drug transaction for her boyfriend and interpreting another drug transaction for Gomez.  Before trial, Ceballos informed the government that she planned to present evidence of Gomez's repeated acts of domestic violence against her to prove that her actions were involuntary and/or the product of coercion/duress.  This evidence was to take three forms: 

     -(1) "family members' testimony regarding the abuse she received from Gomez;"

     -(2) her "testimony about the abuse;" and

     -(3) "expert testimony on her mental condition and domestic violence in general."

The government subsequently submitted a motion in limine seeking to exclude this testimony, and the district court understandably found that this testimony was irrelevant to the issue of whether Ceballos acted voluntarily.  Conversely, the court found that this testimony was relevant on the issue of coercion/duress and admissible, with one notable exception.

That exception was based upon Federal Rule of Evidence 704(b), which 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."

The district court noted that Ceballos' proposed "expert testimony on her mental condition" consisted of "statements regarding the law on coercion, duress, and voluntariness and statements applying that law to [Ceballos]."  The court correctly found that this proposed testimony was "a clear violation of the Federal Rules of Evidence including Rule 704(b)," rendering it inadmissible at trial.

-CM

Rock, Chalk, Recorded Talk?: Kansas To Consider Bill Requiring Recording Of Interrogations Of Suspects

Under a new bill sponsored by Kansas State Senator David Haley, law enforcement officers across Kansas would have to videotape their interrogations of suspects, with any untaped statements being inadmissible at trial.  According to Haley, various police agencies in 48 states, including some in Kansas, videotape interrogations of people in custody.  Indeed, as I noted last year, Illinois has a law requiring officers to videotape their interrogations after Barack Obama was able to get legislation passed over severe opposition.

There is similar opposition in Kansas, and it comes from the expected source:  law enforcement officials and prosecutors.  They have claimed that the if the bill were passed, it would be costly and raise the issue of whether questioning someone before arrest could be used as evidence if not videotaped.

I tend to side, however, with those courts which have found that not recording interrogations increases costs, on balance.  For instance, the Supreme Judicial Court of Massachusetts found in Commonwealth v. DiGiambattista, 813 N.E.2d 516, 529 (Mass. 2004), that: 

     "As is all too often the case, the lack of any recording has resulted in the expenditure of significant judicial resources (by three courts), all in an attempt to reconstruct what transpired during several hours of interrogation conducted in 1998 and to perform an analysis of the constitutional ramifications of that incomplete reconstruction."

And as the Supreme Court of Iowa found in State v. Hajtic, 724 N.W.2d 449, 454 (Iowa 2006),

     "We are aided in our de novo review of this case by a complete videotape and audiotape of the Miranda proceedings and the interrogation that followed."

And while requiring that interrogations be recorded creates some problems, I agree with the Supreme Court of Arizona's conclusion in State v. Jones, 49 P.3d 273, 279 (Ariz. 2002), that:

     "[r]ecording the entire interrogation process provides the best evidence available and benefits all parties involved because, on the one hand, it protects against the admission of involuntary or invalid confessions, and on the other, it enables law enforcement agencies to establish that their tactics were proper."

-CM

It's No Fun Being An Illegal Alien, Take 2: SDNY Finds That City Can Question Civil Plaintiff About His Illegal Alien Status For Impeachment Purposes

The recent opinion of the United States District Court for the Southern District of New York in Hocza v. City of New York, 2009 WL 124701 (S.D.N.Y. 2009), is the latest example of a court finding that entering this country illegally is probative on the issue of the untruthfulness of a witness and not unduly prejudicial. 

In Hocza, Roland Hocza was injured while performing on a government contract at Rikers Island and subsequently sued the City of New York for negligence and violations of various statutory provisions.  The City thereafter sought a pre-trial ruling declaring that evidence indicating Hocza was an undocumented alien should be admissible as, inter alia, impeachment evidence in the event that Hocza testifies at trial. 

The court agreed with the City, finding that:

     "The City also seeks to present evidence with regard to Hocza's unlawful presence in the United States, arguing that the question of whether he has willfully misrepresented a material fact or perpetrated a fraud by reason of his unlawful presence in the United States bears on his credibility. Evidence of a witness's character for truthfulness is governed by Fed.R.Evid. 608.  The City may inquire as to specific instances of conduct that are relevant to the witness's character for veracity, but it may not introduce extrinsic evidence as to that conduct."

Specifically, Federal Rule of Evidence 608(b) states in relevant part that:

     "Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness...may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified."

Furthermore, impeachment evidence under Rule 608(b) is still subject to the balancing test of Federal Rule of Evidence 403, which states that:

     "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."

So, according to the district court in Hocza, a witness' status as an illegal alien makes it more likely that he is lying than a witness who is a U.S. citizen or a legal alien, and this probative value on the issue of untruthfulness is not substantially outweighed by the danger of unfair prejudice by introducing the possibility of invidious discrimination on the basis of alienage.

When I posted an entry about an Eighth Circuit opinion back in December which reached a similar conclusion, I ended by noting,

     "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."

Thinking about this issue some more, I strongly disagree with the court's conclusion in Hocza.  I don't think that a person's status as an illegal alien tells us anything about the likelihood that they will be an honest or dishonest witness.  It tells us that the person was trying to make a better life for himself, his family, and/or offspring yet to come.  But if an illegal alien were to tell me what he observed at a crime scene, I would trust him no less than a legal alien or U.S. citizen.  But, in effect, courts making decisions such as the one in Hocza are telling us that we should draw a distinction, that we have reason to distrust the illegal alien based upon the way that he entered the country.  And according to these courts, not only does this evidence have this probative value, but that value is not substantially outweighed by the danger of invidious discrimination.  But isn't the alleged probative value of this evidence invidious discrimination in and of itself?

-CM    

None of Your Business: Fifth Circuit Opinion In Kroger Robbery Appeal Raises Fascinating Hearsay Issue

The recent opinion of the Fifth Circuit in United States v. Dunigan, 2009 WL 117418 (5th Cir. 2009), raises a fascinating evidentiary issue, even though it was one that the Fifth Circuit did not need to address.

In Dunigan, shortly after a bank, located in a Kroger grocery store, opened for business, a man entered it, jumped over the top of the counter, pointed a weapon at a bank employee's face, and demanded that she give him the money.  A witness claimed that after the man stole the money, the witness saw a white Dodge Avenger with a license plate containing the letters "H" and "Q" leaving the area.

FBI Agent Kleinlein subsequently investigated the robbery, and when he searched the area surrounding the store for a white Dodge Avenger, he locating one with the license plate H01XHM.  Thinking that the witness had misidentified the "Q," Kleinlein contacted the Texas Department of Transportation ("TxDOT") and found out that there was no white Dodge Avenger registered in Texas with a "Q" in the license plate.

Kleinlein thereafter obtained a search warrant for the vehicle and the apartment of its registered owner, Samantha Mattingly, who was Jonas N. Dunigan's girlfriend. When Kleinlein searched the apartment, he found several items similar to items that witnesses saw on the robber during the robbery (including a Kroger shopping bag), and "Dunigan's physical appearance was also similar to the descriptions given by witnesses."

Kleinlein was later charged with robbery and convicted after, inter alia, Kleinlein testified about his investigation, including his call to TxDOT.  Thereafter, he appealed, claiming, among other things, that the district court erred by allowing Kleinlein's testimony regarding his call to TxDOT because it was inadmissible hearsay.

The district court had allowed for the admission of Kleinlein's testimony pursuant to Federal Rule of Evidence 803(7), which provides an exception to the rule against hearsay for:

     "[e]vidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of [the business records exception], to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness."

The Fifth Circuit, however, correctly found that it did not need to address this issue because "[h]earsay must be used 'to prove the truth of the matter asserted,' and Kleinlein was testifying only to describe how he eventually located Dunigan, not to prove that there were no Dodge Avengers with a 'Q' on the licnse plate."  Thus, because Kleinlein's testimony was not hearsay, the court did not need to apply a hearsay exception.

But if Kleinlein's testimony were in fact hearsay, the Fifth Circuit would have needed to apply a different hearsay exception than the one applied by the district court.  That is because Federal Rule of Evidence 803(7) covers the absence of entries in the records of a private business.  Meanwhile the Rule that covers the absence of entries in the records of public offices or agencies such as TXDOT is Federal Rule of Evidence 803(10).  So, at first blush, one might say that Kleinlein's testimony would clearly have been admissible under Federal Rule of Evidence 803(10) because it concerned the absence of an entry in the records of a public office or agency.

But, just as Federal Rule of Evidence 803(7) is the converse of the business records exception to the rule against hearsay, Federal Rule of Evidence 803(10) is the converse to Federal Rule of Evidence 803(8), the public records exception to the rule against hearsay, which provides an exception to the rule against hearsay for:

     "[r]ecords, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness."

Under this Rule, courts typically admit Department of Transportation records/reports under Federal Rule of Evidence 803(8)(C) in civil actions and against the Government in criminal cases. See, e.g., Robbins v. Whelan, 653 F.2d 47, 52 (1st Cir. 1981).  But, based upon the plain language of Federal Rule of Evidence 803(8)(C), such DOT records/reports are inadmissible against a defendant in a criminal trial.

So, this is the fascinating evidentiary issue.  Obviously, Federal Rule of Evidence 803(8)(C) precludes the admission of DOT records/reports against a defendant in a criminal trial, but does its converse, Federal Rule of Evidence 803(10), preclude the admission of evidence of the absence of entries in DOT records/reports?  I would think that because the Rules serve similar interests and because of the connection between the two Rules, Federal Rule of Evidence 803(10), should preclude the admission of this evidence.  But the Fifth Circuit didn't have to address this issue, and I'm not aware of any court that has.

[EDIT:  Willliam A. Woodruff of the Campbell University School of Law wrote me and noted that DOT records would likely be covered by Federal Rule of Evidence 803(8)(A) or Federal Rule of Evidence 803(8)(A), not Federal Rule of Evidence 803(8)(C).  And he is right.  The Advisory Committee's Note to Rule 803 states that Rule 803(8)(C) will cover "the so-called 'evaluative' report" while Rule 803(8)(B) will govern cases such as T'Kach v. United States, 242 F.2d 937 (5th Cir. 1957), which dealt with the "affidavit of [a] White House personnel officer that [a] search of records showed no employment of accused, charged with fraudulently representing himself as an envoy of the President."  What happened in the Kroger robbery appeal seems analogous to the situation in T'Kach.  Of course, that raises the question of whether what happened in the Kroger case consisted of "matters observed by police officers and other law enforcement personnel," which would then make the evidence inadmissible under Rule 803(8)(b), which doesn't apply in criminal cases.]

-CM    

Giving Him The Business: Second Circuit Overanalyzed Confrontation Clause In Fraud Appeal

The recent opinion of the Second Circuit in United States v. Kelley, 2009 WL 19083 (2nd Cir. 2009), seems to me to have reached the correct conclusion regarding the admissibility of a corporate tax return signed by a managing partner of a defendant's corporation.  But I think that it did so on the wrong grounds.

In Kelley, Kevin O. Kelley, who owned a majority interest in First Venture Leasing (FVL), appealed from his convictions on four counts of securities fraud and three counts of wire fraud.  And part of the basis for his appeal was that the prosecution improperly secured these convictions by presenting evidence of FVL tax returns in violation of his rights under the Confrontation Clause.

Readers of this blog know that in its opinion in Crawford v. Washington, the Supreme Court

     essentially found that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.

Based upon Crawford, it is easy to see why the Second Circuit found that the Confrontation Clause was not violated by introduction of FVL's tax returns which were signed by a managing partner.  It found no problem because the tax returns were not "testimonial" in that they were not prepared with the expectation that they would be used at a later trial (unlike, say, statements made to the police).

But in my mind, the Second Circuit didn't even need to get to this step of the analysis because the Confrontation Clause did not cover the tax returns.  As the Second Circuit noted, the tax returns were admissible notwithstanding the rule against hearsay based upon Federal Rule of Evidence 801(d)(2)(D), which indicates that:

     "A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."

In other words, because Kelley and the managing partner were business partners, the tax returns signed by the managing partner were admissible against Kelley as if he had signed the returns himself.  Therefore, the Confrontation Clause was inapplicable.  As the Seventh Circuit noted in United States v. Chappell, 698 F.2d 308, 312 (7th Cir. 1983),

     "The exclusion of party admissions from the definition of hearsay, unlike most hearsay exceptions, is not grounded on a probability of trustworthiness but rather on the idea that a party cannot object to his failure to cross-examine himself. See 4 Weinstein and Berger, Weinstein's Evidence ¶ 801(d)(2)[01] (1981)....This Court has repeatedly held...that extrajudicial statements properly admissible under FRE 801(d)(2)(E) (admissions by coconspirators) do not violate a defendant's Sixth Amendment rights....The similarities between coconspirators and agents are readily apparent, and we see no reason to differentiate between them for Confrontation Clause analysis purposes."

-CM

Mama Couldn't Be Persuaded: Eleventh Circuit Incorrectly Applies Best Evidence Rule To Attempt To Refresh Recollection

In its recent opinion in United States v. Henry, 2009 WL 73156 (11th Cir. 2009), the Eleventh Circuit properly found that the defendant's mother/tax preparer could not testify regarding the amount of his gambling winnings, but it seemingly did so at least partially on the wrong grounds.

In Henry, Tony Henry appealed his convictions for conspiracy to possess with intent to distribute crack cocaine, possession with intent to distribute a quantity of cocaine base, distribution of crack cocaine, and knowingly opening, using, and maintaining a place for the purpose of manufacturing and distributing cocaine base.  And, according to his appellate brief, "[t]he primary focus of [his] defense was that he achieved financial success as a gambler" while "[t]he Government contended he made his money through the sale of narcotics."

At trial, Henry attempted to establish this defense by calling his mother, Karen Simmons, who testified that she was Henry's "tax preparer."  While Simmons was on the witness stand,

     "Henry sought to introduce into evidence...documents that she stated were photocopies of 'W-2G' forms received from casinos reflecting Henry's gambling winnings for several years. She stated that they were used to prepare Henry's income tax returns."

The district court, however, found that the W-2G forms were hearsay and not covered by the business records exception.  Henry thereafter attempted to question Simmons regarding whether she knew, from preparing Henry's tax returns, what amounts of money had been recorded on the forms.  But the court again rebuffed this attempt, finding that "to the extent that Henry was asking Simmons about his tax returns, her testimony would be excluded by the best evidence rule."  Finally, "[t]he court also refused to allow Henry to use the excluded forms to refresh Simmons's recollection regarding the amount of Henry's gambling winnings."

On Henry's appeal, the Eleventh Circuit affirmed all three of these rulings, and I have no problems with the court's logic regarding the first two rulings.  But I disagree with its logic on the third.  According to the Eleventh Circuit, the district court acted properly in making its third ruling because Simmons' proposed "testimony regarding her memories of Henry's tax returns was barred by the best evidence rule."

The best evidence rule, Federal Rule of Evidence 1002, states that:

     "To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress."

Meanwhile, Federal Rule of Evidence 1003 states that:

     "A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

Thus, you can see why Simmons' proposed testimony regarding what was recorded on Henry's tax returns was inadmissible based upon the best evidence rule because Henry produced neither those returns nor photocopies of them at trial.

But at the same time, Henry did produce photocopies of the W-2G forms at trial, so the best evidence rule should have provided no bar to Simmons being able to testify about Henry's gambling winnings if those forms refreshed her recollection pursuant to Federal Rule of Evidence 612.

But there was another bar to Simmons' proposed testimony.  And that is, as noted above, the W-2G forms were hearsay and, apparently, the only basis for Simmons' proposed testimony.  Thus, Simmons' proposed testimony itself would have been hearsay and inadmissible.  Therefore, the Eleventh Circuit reached the correct conclusion but likely based upon the wrong reasoning.

-CM

Kentucky Fried Opinion: Hospital's Appeal Reveals That Kentucky Courts Use The Wrong Test In Bias-Liability Insurance Cases

The recent opinion of the Court of Appeals of Kentucky in University Medical Center, Inc. v. Beglin, 2009 WL 102800 (Ky.App. 2009), reveals that Kentucky court are applying the wrong analysis when determining whether evidence of liability insurance is admissible to prove bias.

In Beglin, Jennifer Beglin died after being treated for Chron's Disease at University Medical Center d/b/a University of Louisville Hospital.  Beglin's husband subsequently sued several defendants, including the hospital and Drs. Susan Galandiuk and Dr. Guy Lerner.  After trial, the jury awarded the husband $9,047,003.09 after finding that the hospital, or its employees and agents, acted negligently in causing his wife's death.  However, two employees who were found not to have acted negligently were Galandiuk and Lerner, after both provided testimony favorable to the other at trial.

The hospital subsequently appealed, claiming, inter alia, that the trial court erred by failing to permit it to introduce, as proof of the doctors' bias, evidence that Dr. Galandiuk and Dr. Lerner were insured by the same malpractice carrier (meaning that if either was found liable, the other's insurance rates would go up).  The court noted that the issue was governed by Kentucky Rule of Evidence 411, which states that:

     "Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."

Of course, as is clear from the text of this Rule, if evidence of liability insurance is offered to prove bias, there is no Rule 411 problem; instead, the court simply needs to determine under Kentucky Rule of Evidence 403 whether the evidence should be excluded because its probative value is substantially outweighed by the danger of unfair prejudice, i.e., the danger that jurors will find against a party because they know that insurance will cover any award of damages.  So, in Beglin, the court should have admitted the evidence that Dr. Galandiuk and Dr. Lerner were insured by the same malpractice carrier unless it found that its probative value for establishing bias was substantially outweighed by the danger that the jurors would find against them if they knew that insurance would cover any award of damages against them.

But that's not what the Court of Appeals of Kentucky did.  Instead, it cited to its previous opinion in the factually similar Wallace v. Leedhanachoke, 949 S.W.2d 624, 628 (Ky.App.1996), where it found that:

     "The mere fact that the two physicians shared a common insurance carrier-absent a more compelling degree of connection-does not clearly evince bias by the expert, and its arguable relevance or probative value is insufficient to outweigh the well-established rule as to the inadmissibility of evidence as to the existence of insurance....We cannot conclude that evidence indicating that Sachetello might experience rising insurance rates is so probative as to the issue of his credibility or bias as to outweigh the prejudicial import of evidence of insurance."

Applying this reasoning, the court found that the trial court did not err in excluding similar evidence in Beglin.  As the above language makes clear, however, it applied the wrong analysis.  According to the Court of Appeals of Kentucky, the evidence of that Dr. Galandiuk and Dr. Lerner were insured by the same malpractice carrier was inadmissible because its probative value didn't outweigh its unfairly prejudicial effect.  But under Rule 403, it didn't need to make such a finding for the evidence to be admissible.  The probative value of the evidence could have equaled its unfairly prejudicial effect or the prejudicial effect of the evidence could have even outweighed its probative value, but to a non-substantial degree, and the court would have been obligated to admit it.

-CM

Just Plane Dumb: Arizona Opinion In Bounty Hunters' Case Against Southwest Reveals That "Character" Evidence Is Admissible To Prove Notice

The recent opinion of the Court of Appeals of Arizona in Hudgins v. Southwest Airlines Co., 2009 WL 73251 (Ariz.App. Div. 1 2009), reveals that "character evidence" is admissible to prove notice.  It also reveals that bounty hunters cannot board flights with weapons.

In Hudgins, Thomas Hudgins and Leroy Devore were bounty hunters who flew from Baltimore to Phoenix on a Southwest flight to apprehend a fugitive in Arizona.  Before making the trip, they called Southwest to obtain instructions on how to lawfully transport handguns, and a representative told them to arrive two hours early, bring photo identification, and have departmental letters setting forth their itinerary and explaining their purpose for transporting weapons.

After arriving at the airport, Hudgins and Devore presented cards at the ticket counter identifying themselves as bail enforcement agents with H & D Enterprises and provided the requested information. A Southwest agent thereafter provided them forms entitled, "Notice to Armed Individuals," (NAI) and, in a space provided to list the individual's "[l]aw enforcement or authorizing [a]gency," Hudgins wrote "H & D Enforcement Agent" and Devore wrote "H & D Enterprises."

Southwest personnel did not ask any questions of the men and failed to realize they were not law enforcement agents.  Indeed, Hudgins and Devore asked to check their weapons because they did not have a fugitive in custody, but a Southwest employee told them to take the weapons on board, and another employee signed the NAI forms as written authorization to do so.

Subsequently, the lead flight attendant took the NAI forms to the captain, who spoke with a Baltimore terminal agent and was mistakenly told that Hudgins and Devore worked for HUD.  But near the end of the flight, Devore informed another flight attendant that he was a bounty hunter, and the captain was eventually told that the men were bounty hunters, not HUD employees.  Because the captain did not deem Hudgins and Devore to be an immediate threat, he continued the flight to Phoenix, but when he called the Phoenix ground operations for a gate assignment, he followed what he believed to be applicable Southwest flight operation manual procedures by requesting that law enforcement meet the airplane at the gate for assistance. And while neither the captain nor any other Southwest employee asked law enforcement agents to arrest Hudgins and Devore, they were indeed arrested upon landing for carrying concealed dangerous weapons on an aircraft in violation of 49 U.S.C. Section 46505(b)(1).

Later, however, the government dropped all charges against Hudgins and Devore, and the FAA decided not to pursue any civil penalties against them because "it appear[ed] every attempt was made to comply with instructions given to [them] by the airline."  Hudgins and Devore, however, subsequently sued Southwest based upon its acts and omissions on the date of the flight and during the ensuing federal investigations.  And while the trial court entered summary judgment for Southwest on all claims, the Court of Appeals of Arizona later reversed (1) the entry of summary judgment on the cause of action sounding in negligence, and (2) the trial court's ruling that as a matter of law Hudgins and Devore were not entitled to punitive damages. On remand, a jury thereafter found Southwest liable to Hudgins and Devore for $500,000 each in compensatory damages and $4 million each in punitive damages.

Southwest subsequently appealed, claiming, inter alia, that the trial court erred by allowing for the admission of a letter from the FAA to SWA's in-house attorney concerning a prior

     "incident in which other bounty hunters were permitted to board a SWA flight with weapons. The letter stated that although the bounty hunters had presented false information, SWA personnel had failed to ask basic questions of them that would have prevented the deception. Significantly, the letter further provided as follows:

          Unfortunately this appears to be a prevelant [sic] problem in Arizona where, at least some individuals calling themselves Bail Recovery Agents or Bounty Hunters have been able to present themselves as being authorized to travel armed when indeed, they are not.

     The letter closed by warning SWA to review its procedures to prevent future violations, which could result in the assessment of civil penalties."

Southwest claimed that this letter constituted inadmissible propensity character evidence, but the Court of Appeals of Arizona correctly rejected this argument, finding that:

     "[t]he letter demonstrated that SWA had notice prior to [the incident at issue] that 'bail recovery agents' were not authorized by the FAA to fly with weapons and that close inspection of identifying documents was necessary to prevent such occurrences....[B]ecause the letter was not introduced to prove SWA acted in conformity with its actions in the [prior] incident but to show notice, the letter fell within a Rule 404(b) exception."

Southwest also claimed that the probative value of the letter was substantially outweighed by its unfairly prejudicial effect, but the court also correctly rejected this argument, finding that:

     (1) "the FAA letter did not say that SWA had a 'prevalent problem' in allowing bounty hunters to fly with weapons but that the problem existed in Arizona. Indeed, the fact the FAA only issued a warning to SWA for a single incident suggested SWA did not have a prevalent problem;" and

     (2) "at SWA's request, the trial court gave a limiting instruction to the jury regarding the FAA letter."

-CM

Meet Virginia: Supreme Court of Virginia Opinion Reveals That Virginia Has Different Expert Evidence Rule Than Do The Federal Rules

The recent opinion of the Supreme Court of Virginia in Commonwealth v. Wynn, 2009 WL 103364 (Va. 2009), reveals an important distinction between the Virginia Code and Federal Rule of Evidence 703.

In Wynn, the Commonwealth filed a petition in circuit court for the civil commitment of Freddie Lee Wynn as a sexually violent predator under the Sexually Violent Predators Act.  At the time, Wynn was incarcerated on two convictions for aggravated sexual battery of a child under age thirteen.  After the circuit court determined that probable cause existed to believe Wynn was a sexually violent predator, Wynn elected to have a trial by jury. At the conclusion of the evidence, the jury returned a verdict finding that Wynn was not a sexually violent predator, and the circuit court entered an order in accordance with the jury verdict.

The Commonwealth subsequently appealed, claiming that the circuit court made two erroneous evidentiary rulings:

     "The first evidentiary ruling occurred during the Commonwealth's direct examination of Dr. Miller [who testified that Wynn suffers from pedophilia, paraphilia, and antisocial personality disorder]. The Commonwealth attempted to elicit testimony about allegations of sexual misconduct by Wynn made by children other than the victim involved in Wynn's two aggravated sexual battery convictions. Dr. Miller had learned about those allegations, which concerned sexual abuse that supposedly occurred during the same time frame as the sexual batteries for which Wynn was convicted, by reviewing documents in a file maintained by the Assistant Commonwealth's Attorney who had prosecuted Wynn. When the Commonwealth asked Dr. Miller to relate specific information about those other allegations, Wynn objected, stating that the allegations were 'hearsay upon hearsay' and he could not cross-examine either the accuser, the person who prepared the documents detailing the allegations, or the individual who created the file. In response, the Commonwealth asserted the allegations constituted information Dr. Miller relied upon in arriving at his conclusions and the jury could decide what weight to give his opinions based on those allegations."

The circuit court determined that "Dr. Miller could testify that there were allegations from other children, but had to omit the specific details of those allegations."

On appeal, the Commonwealth claimed that the details of those allegations should have been admissible pursuant to Federal Rule of Evidence 703, which states that:

     "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect."

As is clear from the last sentence of this Rule, otherwise inadmissible facts or data upon which an expert relies can be admissible if they successfully navigate the probative value/prejudicial effect tightrope, which the Commonwealth claimed that the evidence at issue did.  But the problem for the Commonwealth was that Wynn was heard in Virginia state court and was thus governed by the Virginia Code, not the Federal Rules of Evidence.

And as the Supreme Court of Virginia correctly noted, while the analogous Virginia Code Section 801.401.1 "was based, in part, on Federal Rules of Evidence 703 and 705, there is a significant difference between our statute and Federal Rule of Evidence 703."  This different is evident from the text of Virginia Code Section 801.401.1, which states that:

     "In any civil action any expert witness may give testimony and render an opinion or draw inferences from facts, circumstances or data made known to or perceived by such witness at or before the hearing or trial during which he is called upon to testify. The facts, circumstances or data relied upon by such witness in forming an opinion or drawing inferences, if of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences, need not be admissible in evidence.

     The expert may testify in terms of opinion or inference and give his reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

     To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals or pamphlets on a subject of history, medicine or other science or art, established as a reliable authority by testimony or by stipulation shall not be excluded as hearsay. If admitted, the statements may be read into evidence but may not be received as exhibits. If the statements are to be introduced through an expert witness upon direct examination, copies of the statements shall be provided to opposing parties thirty days prior to trial unless otherwise ordered by the court."

This text makes clear that Virginia Code Section 801.401.1 "does not contain th[e] proviso" that otherwise inadmissible facts or data upon which an expert relies can be admissible if they successfully navigate the probative value/prejudicial effect tightrope.  Thus, the Supreme Court found that there was no basis for the admission of the details of the hearsay allegations against Wynn and affirmed the circuit court's judgment (after finding that the Commonwealth's other evidentiary objection was also without merit).

-CM      

Floods Of South Dakota: Incoming SD Legislator Plans To Propose New Child Molestation Character Evidence Rule

South Dakota does not currently have a rule of evidence that allows for the admission of a criminal defendant's prior acts of child molestation when he is charged with child molestation.  But if an incoming lawmaker has his way, that will all soon change. 

Like its federal counterpart, Federal Rule of Evidence 404(b), SDCL 19-12-5 provides in relevant part that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith."  In other words, evidence that a criminal defendant charged with child molestation had previously molested children would be inadmissible to prove that he had a propensity to molest children and that he likely acted in conformity with that propensity at the time of the alleged crime.  Or, to put it more simply, that evidence would be inadmissible to prove, "Once a child molester, always a child molester."

But, this actually isn't the case in trials conducted under the Federal Rules of Evidence because Federal Rule of Evidence 414 states that:

     "In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant."

As I have noted before, this Rule was "enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, despite the overwhelming majority of lawyers, judges, legal organizations, and law professors opposing the laws when it was submitted for public comments."

But while Congress added this Rule to the Federal Rules of Evidence, most states, including South Dakota, have not followed suit.  Recently elected South Dakota State Rep.-elect Lance Russell would like to change that.  He plans to introduce a bill that would let juries hear evidence of prior molestations in trials where the defendant is accused of child molestation.  According to Russell, "state juries need to have all the evidence in such cases - as federal juries already do."

Of course, the question is whether the probative value of such evidence is substantially outweighed by the danger of unfair prejudice that it creates.  Most lawyers, judges, and law professors answered this question in the negative, and, as I have noted before, I agree with them.  Now, the question will be where South Dakota legislators fall on the question.   

-CM

Lost Spouse, Lost Privilege?: Pennsylvania Cold Case Murder Trial Involves Interesting Spousal Privilege Issues

An upcoming cold case murder trial for a man charged with the beating death and robbery of a Pennsylvania adult video store clerk should involve some interesting spousal privilege issues.  Sixteen years ago, someone killed Donald V. Gosline at a Liverpool, Pennsylvania adult video store and stole $1,372 from the store.  Authorities eventually brought charges against Steven Carl Buttolph after his then-wife, Marcie Piazza, contacted state troopers in 1995 to say that Buttolph committed the homicide.   But Buttolph was freed when Piazza later invoked spousal immunity and refused to testify against him at a preliminary hearing.

The murder case then turned cold, but it heated up again after authorities retrieved DNA from cigarette butts found at the crime scene, used a search warrant to obtain a DNA sample from Buttolph, and found that his DNA was consistent with the DNA found on the cigarette butts (this part of the story is confusing to me because the story on the case indicates that "Buttolph acknowledged shortly after the killing that he had been in the [adult video] store the night Gosline died,"  so I don't know what the DNA evidence added to the equation).  So, Buttolph will now stand trial.  And because Buttolph and Piazza have now divorced, authorities have wondered whether Piazza, whom has not yet been located, can now testify against Buttolph.   

Specifically, "Perry County District Attorney Charles F. Chenot III said Monday that either spouse can raise the spousal privilege, and his legal research indicates that it may still be in force even after a divorce."  Is he correct?  Well, to find out, we first need to ask which spousal privilege would apply to Piazza's possible testimony.  42 Pa.C.S. Section 5914 states in relevant part that:

     "Except as otherwise provided in this subchapter, in a criminal proceeding neither husband nor wife shall be competent or permitted to testify to confidential communications made by one to the other, unless this privilege is waived upon the trial."

Thus, if Buttolph told Piazza in private and while they were married that he murdered Gosline, Piazza would not be able to testify about this confidential communication during the course of the marriage.  And, as in most states, under this privilege, "disclosure of confidential communications made during a marriage is prohibited even following the dissolution of the marriage." Commonwealth v. Weiss, 776 A.2d 958, 967-69 (Pa. 2001). 

And when we think of the rationale behind this privilege, it makes sense.  Confidential marital communications are privileged because we want spouses to feel free to speak openly and honestly to each other without the fear that those communications will later be aired out in open court.  If the privilege terminated with the termination of the marriage, there would be no point to the privilege because that is exactly the time when one would expect disclosure.  This would be like finding that the attorney-client privilege ends with the end of the attorney-client relationship.

But, from the article on the case, it appears that at least some of Piazza's possible testimony would not be covered by 42 Pa.C.S. Section 5914.  According to that article, state troopers have said that Gosline told them "that she remembered Buttolph had a large, untreated gash on his right hand shortly after Gosline died."  This proposed testimony would concern what Piazza observed, not what Buttolph told her, meaning that it would not be covered by 42 Pa.C.S. Section 5914 and could only potentially be covered by 42 Pa.C.S. Section 5913, which states in relevant part that:

     "Except as otherwise provided in this subchapter, in a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse...."

And the obvious problem for Buttolph on this front is that this privilege clearly states that it only applies to a person's "then lawful spouse," meaning that the privilege "is extinguished upon death or divorce." Commonwealth v. Hancharik, 565 A.2d 782, 790 (Pa.Super. 1989).  Thus, if Piazza is located, she cannot claim that testimony on this matter or other things that she observed would be covered by privilege.

(Hat tip to Christopher Robinette of Widener Law and TortsProf Blog).

-CM

The Smartest Guys In The Room?: Fifth Circuit Makes Interesting Forfeiture By Wrongdoing Rulings In Enron Appeal

The recent opinion of the Fifth Circuit in United States v. Skilling, 2009 WL 22879 (5th Cir. 2009), reveals that the forfeiture by wrongdoing doctrine can apply not only against criminal defendants but also against the prosecution.

In Skilling, former Enron Corporation CEO Jeffrey K. Skilling Jeffrey K. Skilling appealed from his convictions for conspiracy, securities fraud, making false representations to auditors, and insider trading.  And on appeal, he sought to prove prosecutorial misconduct by presenting hearsay evidence that potential witnesses did not meet with him because they feared governmental reprisal.  According to Skilling, this hearsay evidence should have been admissible at trial pursuant to Federal Rule of Evidence 804(b)(6), which deems admissible "[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."

Now, usually, Rule 804(b)(6) applies when a criminal defendant kills or incapacitates a potential witness for the prosecution, but the Fifth Circuit correctly noted that the Rule also applies "where the government is responsible for making a witness unavailable."  But the problem for Skilling was that he did not claim at trial that the hearsay evidence was admissible under Rule 804(b)(6), meaning that the Fifth Circuit could only reverse for plain error.  And the problem for Skilling was that he could not demonstrate such plain error.

And the reason why he couldn't do so is actually pretty interesting.  The hearsay evidence that Skilling presented were the hearsay declarations of an attorney for several former Enron employees.  But what he failed to present was any material independent of the hearsay itself which tended to indicate wrongdoing by the government.  According to the Fifth Circuit, this was fatal because

     "this court has not resolved whether, to invoke Rule 804(b)(6) properly, a party must make this evidentiary showing with material independent of the hearsay itself. This is a question of first impression, and there are persuasive arguments for either position or for a hybrid of the two. This question is especially difficult here given that it was the defense counsel who made the uncorroborated hearsay declarations. Under such circumstances, any error is not plain."

I agree with the Fifth Circuit's ruling that there could not be plain error because the hearsay issue was a question of first impression.  That said, I wonder how the court would have dealt with the issue if Skilling had preserved it for appeal, and it will be interesting to see which approach the Fifth Circuit and other courts ultimately take on the "independent material" issue.

(The Fifth Circuit did vacate Skilling's sentence and remand for resentencing based upon a different issue)

-CM

What Would You Do?: Court Of Appeals Of Texas Correctly Applies Rule 606(b) To Prevent Jury Impeachment

I often criticize courts on this blog for the way that they apply Federal Rule of Evidence 606(b) and state counterparts, but the recent opinion of the Court of Appeals of Texas in Gutierrez v. Martinez, 2008 WL 5392023 (Tex.App.-Houston [1 Dist.] 2008), seems to address a situation where the court had no other choice but to apply the anti-jury impeachment rule.

In Martinez, Everardo Gutierrez and Maria Sanchez were involved in a traffic accident with Arturo Martinez.  In that accident, Martinez's car collided into the rear of Gutierrez's SUV, which Gutierrez was driving, and in which Sanchez was a passenger, along with their infant, Ashley. Gutierrez subsequently sued Martinez, who did not contest his negligence in causing the collision.  Thus, the ensuing trial solely addressed the issue of whether and to what extent Martinez caused the appellants' damages for physical pain/mental anguish and their reasonable expenses of necessary medical care. And after that trial,  "[t]he jury awarded appellants no damages."

This result seemed strange to me, and it turns out that the trial court improperly excluded the appellants from presenting affidavits concerning the cost and necessity of medical services provided to them in the wake of the accident.  Of course, the result was strange to the appellants as well, and they filed a motion for judgment notwithstanding the verdict or, in the alternative, motion for new trial, in which they complained of the trial court's exclusion of the affidavits and argued that it led to the rendition of an improper verdict.

And in that motion, they argued that

     "the jury considered the absence of such affidavits during their deliberations and would have awarded all the damages requested if the affidavits had been provided. Appellants apparently base this assertion on allegations made in post-trial affidavits of two trial counsel regarding hearsay statements of a juror with whom counsel had a conversation after trial."

The Court of Appeals of Texas, however, correctly noted that it could not consider the jurors' post-trial affidavits pursuant to, inter alia, Texas 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve."

According to the court:

     "We do not consider any of these affidavits because the rules of civil procedure and civil evidence prohibit the consideration of evidence of statements by jurors regarding matters or statements that occurred during the course of jury deliberations, unless it involves an outside influence."

As I noted above, I agree with the Court of Appeals of Texas on this point.  The affidavits of the jurors seem speculative at best, and if they were admitted would encourage the type of judicial second guessing that Rule 606(b) is designed to avoid.

That said, while I agree with this evidentiary ruling by the Court of Appeals, I disagree with its ultimate decision to affirm the trial court's ruling.  I won't go into the details of the case on this blog, but I invite readers to check out the court's opinion to determine whether you think that the appeal was properly handled.

-CM 

Unlimited: Alaska Case Reveals The Futility Of Limiting Instructions For Common Plan Evidence

The recent opinion of the Supreme Court of Alaska in Sowinski v. Walker, 2008 WL 5413724 (Alaska 2008), reveals that a litigant must ask for a limiting instruction to receive one.  But it also reveals the seeming futility of asking for a limiting instruction when evidence of past acts are used to prove common plan or scheme.

Walker arose from an ATV accident which occurred after minors Justin Vaughn and Robert Walker consumed alcohol they had allegedly purchased at DelRois Liquor Store. After drinking, the minors and Crystal Brueggeman rode an ATV and struck a cable, resulting in the deaths of Vaughn and Walker "within seconds or minutes."

The personal representatives of the decedents' estates and the decedents' families thereafter sued several parties, including DelRois, whom they sued for providing alcohol to the underage decedents and against whom they sought punitive damages.  Ultimately, the Superior Court found that DelRois was sixty-two percent responsible for the accident, and several appeals ensued including an appeal by DelRois.

One of the grounds for DelRois' appeal was that the court erred in admitting the testimony of other minors, who claimed that DelRois sold alcohol to other minors (in addition to selling alcohol to the decedents on the night in question).  In rejecting this argument, the Supreme Court of Alaska held in part that the

     "plaintiffs used the testimony, in part, to show a pattern of reckless alcohol sales to minors in support of their punitive damages claim. This was permissible 'other acts' evidence used to demonstrate potentially reckless behavior by DelRois. The superior court did not give a limiting instruction to the jury about the permissible and impermissible uses of this testimony. Alaska Rule of Evidence 105 states that when evidence is admissible for one purpose but not another, the court shall restrict the evidence to its proper scope and instruct the jury accordingly-but only upon request. Here, DelRois did not request a limiting instruction, and thus cannot complain that none was given."

On this latter point, the Alaska Supremes were clearly correct.  Alaska Rule of Evidence 105 indicates that:

     "When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. In cases tried to a jury, evidence inadmissible as to one party shall not be admitted as to other parties until the court has made all reasonable efforts to effectively delete all references to the parties as to whom it is inadmissible."

The key phrase here is "upon request," and because DelRois did not request a limiting instruction, it could not complain on appeal that one should have been given. At the same time, it seems to me that such a limiting instruction would have been futile.  Alaska Rule of Evidence 404(b) states that:

     "Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Thus, for instance, the prosecution in a trial for safecracking could introduce the defendant's prior crimes of safecracking not to prove "Once a safecracker, always a safecracker," but to prove knowledge, i.e., that the defendant knew how to crack safes.  And defense counsel could ask for a limiting instruction stating:

     "You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of knowledge. You should consider the evidence only for this limited purpose."

Now, you might question whether jurors would follow such a limiting instruction, but the instruction at least seems to make sense in terms of what the jurors should and should not consider.

But we can contrast this with the situation in Walker.  The testimony by the other minors was not admissible to prove "Once an underage alcohol seller," but it was admissible to prove that DelRois had a pattern of selling alcohol to minors.  Thus, a limiting instruction might have stated:

     "You have heard evidence of acts of the defendant other than those charged in the indictment. You may consider this evidence only on the question of pattern (or common plan or scheme). You should consider the evidence only for this limited purpose."

A limited purpose indeed!  Now, it is true that there is a legal distinction between propensity/conformity evidence and pattern/common plan or scheme evidence. But even legal experts struggle with the nature of this distinction, and I don't see how a limiting instruction such as the one listed above would be helpful in any way to the defendant/jury. 

-CM

To Take The Stand Or Not?: Texas Appeal Reveals That Criminal Defendants Must Testify To Appeal Conviction Impeachment Rulings

The recent opinion of the Court of Appeals of Texas in Burks v. State, 2008 WL 5341296 (Tex.App.-Houston 2008), teaches an important lesson, which is that, in order for a criminal defendant to be able to appeal a court's ruling regarding the admissibility of his prior conviction(s) for impeachment purposes, the defendant must testify at trial.

In Burks, Devian Charles Burks appealed his conviction for assault.  And part of his argument on appeal was that "the trial court committed reversible error by ruling that the State would be allowed to impeach him with the five prior convictions if he chose to testify at trial." 

And indeed, at trial, over Burks' objection, the trial court ruled that it would allow impeachment of Burks through his prior felony convictions if he chose to testify (but the record did not show that the trial court determined whether it would permit impeachment with any misdemeanor convictions). The problem for Burks, however, was that he did not subsequently testify.

And while that might have been the best strategy at trial, it also foreclosed the possibility of Burks later appealing this evidentiary ruling on appeal.  That is because, since the United States Supreme Court's opinion in Luce v. United States, 469 U.S. 38 (1984), courts have consistently held that a criminal defendant must testify at trial to be able to challenge a trial court's decision to allow the prosecution to impeach him through prior convictions.

And that is exactly what the Court of Appeals of Texas found in Burks.  According to the court,

     "[t]o preserve error on a trial court's ruling that permits the State to impeach a defendant with prior convictions, the defendant must have testified....A reviewing court is unable to weigh the probative value of the proffered testimony against its prejudicial effect without a factual record of the appellant's testimony at trial....Without such a record, there is no impeachment evidence for prior convictions and we cannot sufficiently review for error."

-CM