EvidenceProf Blog

'Cos I'm A Good Boy I'm On Parole: Oklahoma Appeal Reveals That Rules Of Evidence Don't (Strictly) Apply At Parole Revocation Hearings

Recently, I wrote a post about how veterans affairs courts are not bound by the Federal Rules of Evidence but still frequently look to them for guidance. Well, the same applies to courts holding probation revocation hearings as is made clear by the recent opinion of the Court of Criminal Appeals of Oklahoma in Hampton v. State, 2009 WL 432843 (Okla.Crim.App. 2009).

In Hampton, the State filed an Application to Revoke Suspended Sentence for Jerry Lynn Hampton. The Application alleged that Hampton had violated the conditions of his probation by having committed the offenses of Attempted Manufacture of a Controlled Dangerous Substance; Unlawful Cultivation of Marijuana; and Unlawful Possession of Controlled Dangerous Substance.

At the evidentiary hearing on that application, the State presented significant evidence that Hampton had violated the conditions of his probation, such as hearsay evidence concerning his

alleged purchase of a large quantity of matches from a local convenience store. While conducting the investigation that led up to his obtaining the search warrant, the agent was told by store personnel "that a guy by the name of Slick (apparently Hampton's nickname) has been coming in with Roger Payne purchasing matches...." [Hampton] objected to this statement as hearsay. [Hampton] further argued that if the trial court were to consider this hearsay statement, it would deprive [Hampton] of his right of confrontation.

After the Oklahoma trial court granted the State's application, Hampton appealed, and the Court of Criminal Appeals of Oklahoma noted that like Federal Rule of Evidence 1101(d)(3), Oklahoma's counterpart states that the rules of evidence do not apply to proceedings for revoking probation. But as noted above, this does not mean that those rules are irrelevant. Instead, in dicta, the court declared:

Today we also hold that an out-of-court statement will presumptively satisfy the confrontation rights of a probationer when that statement is one that would normally be admissible under an established exception to the rules against hearsay. While the rules of evidence in Oklahoma (as well as those rules of evidence found in the federal system and many other jurisdictions), contain provisions declaring such rules inapplicable to probation revocation proceedings, courts in such jurisdictions have found that an out-of-court statement satisfies the due process confrontation requirement when that out-of-court statement is one falling under a long-standing exception to the rules against hearsay.

So, why was this declaration in dicta? Well, the State in Hampton did "not contend that the out-of-court statement at issue f[ell] under such an exception." Nonetheless, the court still affirmed, finding that Hampton had "not demonstrated that the District Court's partial reliance on that out-of-court statement in his particular case ultimately resulted in an unfair revocation proceeding."

-CM

Lock Up: Northern District Of Illinois Grants Summary Judgement To Pretrial Detainees Based In Part On Subsequent Remedial Measure Evidence

The recent opinion of the United States District Court for the Northern District of Illinois in Young v. County of Cook, 2009 WL 436114 (N.D.Ill. 2009), contains interesting issues relating to the Fourth Amendment, the Equal Protection Clause, and the admissibility of evidence of subsequent remedial measures.

In Young, Plaintiffs Kim Young, Ronald Johnson, and William Jones, on behalf of themselves and two certified classes, sued former Cook County Sheriff Michael Sheahan and Sheriff's employees Callie Baird, Scott Kurtovich, and Salvador Godinez (collectively the Sheriff Defendants), as well as Cook County, under 42 U.S.C. § 1983. Those plaintiffs alleged violations of their Fourth and Fourteenth Amendment rights during the time they were confined as pretrial detainees at the Cook County Jail (CCJ). Cook County and the Sheriff Defendants thereafter moved separately for summary judgment, and the plaintiffs moved for partial summary judgment on the issue of liability.

For the most part, the plaintiffs were successful. The court found that the following facts were undisputed:

(1) men at CCJ have been routinely strip searched in groups of up to at least seventy-five individuals; (2) until approximately February 2007, there were no privacy screens in the hallway where the members of Class I were searched at the [Receiving Classification and Diagnostic Center (RCDC)]-meaning they were searched in full view of the other detainees in the group being searched FN8; (3) on occasion, bodily fluids have been present in the hallway where the searches of the Class I members occurred; (4) the members of Class I had, at times, no more than six inches of space between each other during the strip searches before the privacy screens were installed; (5) individuals in the group searches, prior to the installation of the privacy screens, would accidentally bump into and touch each other; and (6) prior to some time in 2006, men were searched using the less dignified bend-and-spread method, whereas women were searched using the squat-and-cough method.

So, how did Federal Rule of Evidence 407, which covers evidence of subsequent remedial measures, come into play?  Well, the plaintiffs wanted to introduce evidence that "[s]ometime after January 2007, a body scanning machine was also installed in the male section at the RCDC" and that  "[i]n or around February 2007, privacy screens were installed in the hallway where groups of men are strip searched at the RCDC."  Now, normally, this evidence would have been inadmissible under Rule 407, which indicates that:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

The problem for the defendants, though, was that they "argue[d] that use of privacy dividers and body scanning machines were and are not always feasible for a number of reasons."  Consequently, the defendants controverted feasibility, and the judge was allowed to consider evidence of the above two subsequent remedial measures.

And based in large part on that evidence, the court was able to grant the plaintiff summary judgment on their Fourth and Fourteenth Amendment claims.  With regard to the plaintiffs Fourth Amendment claims, the court found that

In light of the [above] undisputed facts, the Court finds that the strip searches of the members of Class I before the privacy screens were installed at the RCDC were unreasonable and violated the Fourth Amendment as a matter of law. During that period, the class members, who were undergoing one of the most intrusive types of searches the government may permissibly conduct, were subjected to conditions that greatly enhanced their discomfort and humiliation. They were herded together with dozens of other men and forced to strip and bend over or squat in front of a large group, with less than a foot of space between them.

And with refard to the plaintiffs' Fourteenth Amendment claims, the court rejected all of the defendant's argument, including the argument that "women's menstrual cycles justify a policy affording female detainees greater privacy."  According to the court,

This is not an “exceedingly persuasive” justification for the difference between the male and female searches. Male detainees also present hygiene issues. The fact that some female detainees present one different or additional hygiene issue is insufficient to justify the stark gender-based differences between the search policies prior to the time the privacy screens were installed in the male search area at the RCDC.

-CM

Jumping To Conclusions: Fifth Circuit References Erroneous Prior Rule 704(b) Ruling In False Tax Return Appeal

The recent opinion of the Fifth Circuit in United States v. Adams, 2009 WL 382126 (5th Cir. 2009), addressed a proper Rule 704(b) ruling but references a prior Fifth Circuit opinion which contains what I regard as a horribly misguided Rule 704(b) ruling.

In Adams, Jon Dale Adams appealed from his convictions on two counts of filing false income tax returns in violation of 26 U.S.C. § 7206(1). One of the grounds for Adams' appeal was that the district court failed to declare a mistrial after IRS Agent Jerry Porter testified as follows:

Q: And after you completed your investigation of the defendant, did you come to a conclusion?

A: Yes, sir.

Q: What was that conclusion?

A: After completing the investigation, I concluded that the defendant, under penalties of perjury, willfully filed a 1999 Form 1040X and a 2000 Form 1040, knowing that it was false in that the-it was false as to a material matter..

After Porter rendered this testimony, defense counsel immediately objected, claiming that this testimony was inadmissible under 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 correctly sustained this objection, but it denied defense counsel's motion for a mistrial. Instead, the district court decided to give a curative instruction, which informed jurors that:

[Y]ou heard testimony from the witness generally stating that he had concluded that the defendant acted willfully in filing a false claim. The rules do not permit an expert witness to give an opinion about what ... a criminal's mental state is. So I'm going to strike that portion of his testimony from the record. I'm going to instruct you not to consider that opinion. Okay? I'm instructing you that you cannot consider the expert's opinion as to what he thinks Mr. Adams' mental state is.

This seems to me to be about as good as it gets with curative instructions, which is why I said above that I agreed with the Fifth Circuit's ruling. But in finding that Porter's testimony violated Rule 704(b), the Fifth Circuit contrasted its prior opinion in United State v. Dotson, 817 F.2d 1127 (5th Cir. 1987).

In Dotson, Frederick Leon Dotson was convicted of tax evasion after an IRS agent testified, inter alia, that:

In 1983, again, [Dotson's net worth] increased again forty thousand dollars, almost the same amount it did in 1981 through the period, so they are consecutive increases, which lead me to believe that Mr. Dotson's net worth and/or his equity was increasing through the period. This is indicative, and based on my experience shows to me, that he willfully and intentionally increased his income knowing full well that he had not reported the taxes due thereon.

In finding that the district court did not abuse its discretion in striking this testimony, the Fifth Circuit concluded:

The second sentence in the above excerpt can be interpreted in two ways. Interpreting the sentence more favorably to the government, the sentence simply ties the facts recited in the first sentence to the conclusion that the expert, based on his specialized experience, believes they indicate. Interpreting the sentence more favorably to the defendant, the sentence presents an instance in which the expert draws the forbidden conclusion that the defendant "willfully and intentionally" evaded income taxes.

Come again?  The court is right, I suppose, that interpreting the second sentence more favorably to the government, that "sentence simply ties the facts recited in the first sentence to the conclusion that the expert, based on his specialized experience, believes they indicate."  But that conclusion is that Dotson willfully and intentionally evade income taxes, which is precluded under Rule 704(b). Does the Fifth Circuit's parsing of words/meaning make sense to any readers?

-CM

Don't Have A Cow: Virginia Judge Excludes Double Hearsay Testimony In Trial Of Animal-Control Officer

Last May, Virginia animal-control officer Garland Nester went to kill an errant cow but killed a farmer instead. And now, pursuant to a (correct) ruling by the judge in the officer's involuntary manslaughter trial, jurors will not be able to hear testimony regarding the officer's anger in the wake of his futile attempt to track down the cow.

Last May, in Floyd County, Virginia, Nester unsuccessfully spent an hour trying to track down his fleeing cow, chasing him through a swamp, a copse, and along the Blue Ridge Parkway. Nester rented grazing land next to a farm belonging to 75-year-old Paul Belcher, who tried to help Nester corral the cow but instead was fatally shot with a bullet from Nester's .357-caliber semi-automatic pistol.

According to defense attorney David Damico,

Belcher's death was a tragic accident, the apparent result of a bullet ricocheting off the cow's right foreleg. Nester, he said, never saw Belcher, who was up on the raised roadway, Conner Grove Road, 190 feet from Nester and not in Nester's line of sight.

But, according to Amy Tharp, assistant chief medical examiner for Western Virginia,

the wound to Belcher's abdomen did not appear to come from a ricocheting bullet because it apparently entered his body in a tight spiral. If it had ricocheted, said Tharp, the bullet would have wobbled, just as a quarterback's pass does after a defensive lineman deflects it.

Frankly, I'm not sure how why the bullet either ricocheting or not ricocheting matters. I'm assuming that the prosecution is not arguing that Nester saw Belcher because it only charged him with involuntary manslaughter, so I'm not sure how the bullet ricocheting off the cow and striking Belcher would be appreciably different from the bullet striking Belcher directly. The only question, it seems to me, is why Nester was shooting (apparently four bullets) at his cow and whether that act was criminally negligent.

And in that regard, the aforementioned evidentiary ruling will make the prosecution's task difficult. Special Prosecutor Clifford Hapgood

had hoped to show jurors that Nester, 45, was so angry after spending nearly an hour chasing the cow...that he lost his cool, pulled out his .357-caliber semi-automatic pistol and fired four shots with little thought...[while] [h]is son, Travis, stood nearby. Judge Ray Grubbs refused to allow testimony about Nester's anger because it was hearsay evidence: Travis had told Belcher's brother and a high school teacher that his father was furious when he started firing at the cow. Grubbs would not allow Belcher's brother or the teacher to discuss the son's comment during their testimony.

This ruling was correct because testimony by these witnesses would have been double hearsay in that they would have been relating what Travis told them about what Nester told him. And according to the Court of Appeals of Virginia in West v. Commonwealth, 407 S.E.2d 22, 24 (Va.App. 1991), "in order for a hearsay declaration which contains hearsay within it to be admissible, both the primary hearsay declaration and each hearsay declaration included within it must conform to a recognized exception to the hearsay rule."

The problem for the prosecution in Nester's case was that while Nester's statements would be admissions of a party-opponent (the criminal defendant), there is no hearsay exception under which Travis' statements would have been admissible. Thus, the judge properly precluded the testimony.

-CM

If You Were In The Public Eye: Kentucky Court Finds That Third Party Statements Were Properly Excluded From A Public Report

The recent opinion of the Court of Appeals of Kentucky in Adams v. Lexington-Fayette Urban County Government, 2009 WL 350600 (Ky.App. 2009), reveals that simply because third party hearsay is included in a public record or report does not mean that it is magically made admissible by the Public Record/Report exception to the rule against hearsay.

In Adams, John Henry Adams appealed a jury verdict in favor of the Lexington-Fayette Urban County Government (LFUCG) and against him after he sued LFUCG, claiming that he was discriminated against on the basis of race, age, and/or disability in violation of KRS 344 and subjected to unlawful retaliation as a direct consequence of his decision to seek the vindication of his civil rights in violation of KRS 344.280. The facts leading to Adams' lawsuit were as follows:

In 1981, Adams was hired as an employee of LFUCG and assigned to the Division of Building Maintenance and Construction (BMC) as a painter. Sometime later, Adams began experiencing what he believed to be racially-motivated abusive treatment by his supervisor, BMC Director Robert Clark. After Adams brought his concerns about Clark's abusive conduct to Julius Berry, an administrative aide to the mayor, Berry initiated an investigation of the BMC.

On September 7, 1994, Julius Berry issued a report, the "Berry Report," to Sam Dunn, a LFUCG employee, which documented numerous allegations of discriminatory acts committed by Clark against BMC employees, including claims of racism, favoritism, and cronyism. At the conclusion of the report, Berry recommended that Clark's employment be terminated for official misconduct.

At trial, Adams was able to introduce parts of the Berry Report into evidence pursuant to Kentucky Rule of Evidence 803(8), which provides a Public Record/Report exception to the rule against hearsay for

records, reports, statements, or other data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law...[u]nless the sources of information or other circumstances indicate lack of trustworthiness.

The trial court, however, precluded Adams from introducing those portions of the report which "contained quotes, statements, or opinions of third parties," and this ruling formed part of the basis for Adams' appeal.

The Court of Appeals of Kentucky, however, correctly rejected this argument on appeal, citing the Supreme Court of Kentucky's opinion in Prater v. Cabinet for Human Resources, Commonwealth of Kentucky, 954 S.W.2d 954 (Ky. 1997), for the proposition that:

"If a particular entry in the record would be inadmissible for another reason, it does not become admissible just because it is included in a business or public record...." Therefore, when a report contains statements by out-of-court declarants, the statements of these individuals are excluded as hearsay within hearsay, i.e., "double hearsay," unless each statement conforms with an exception to the hearsay rule (e.g., in a report, a doctor's statements of a declarant's statements made for the purpose of medical treatment or diagnosis would be admissible pursuant to KRE 803(4)).

Thus, according to the court of appeals, the trial court acted properly because "Adams did not offer any basis that the third party statements in question conformed to any of our recognized exceptions to the hearsay rule."  This ruling makes sense because the purpose of the rule against hearsay is to exclude unreliable evidence.  The Public Record/Report exception provides an exception to the rule against hearsay because it is generally expected that employees of a public agency will accurately and reliably record things in public records and reports.  But there is no expectation that a private citizen making statements to such an employee will be accurate/reliable, which is why such third party statements are not admissible under the exception.

-CM

The Sense Of The Past: Third Circuit Corrects Worst Present Sense Impression Ruling I Have Ever Seen

The recent opinion of the Third Circuit in United States v Green, 2009 WL 385423 (3rd Cir. 2009), corrects the worst misapplication of the present sense impression to the rule against hearsay that I have ever seen.

In Green, Artega Green appealed from his conviction for distribution of more than 50 grams of cocaine base in violation of 21 U.S.C. § 841. Green was convicted based upon his alleged involvement with a drug transaction conducted out of a car in May 2002, which the DEA recorded in a "low quality" video and audio recording. The crux of the Government's case was proving the identity of the individual captured on its audio and video evidence, and it sought to do so in part based upon the testimony of Confidential Informant Michael Brown, who participated in the buy.

In a rather dramatic turn of events, however, Michael Brown, the CI involved in the controlled transaction, testified as the sole defense witness. According to Brown, Green never got out of the car on the day of the buy, and the person depicted on the video selling the drugs was an individual known as "Tex." Brown also stated that the DEA agents had used him before in other controlled buys, always with the goal of catching Green on tape selling drugs; but they were never successful, and were upset at Brown because of this.

Thereafter, over Green's vigorous objection, the Government was permitted to introduce as substantive evidence a statement that Brown purportedly made some 50 minutes following the controlled buy in question, after he was brought back to DEA offices, questioned, and debriefed by the case agents. In that statement, which the district court admitted as a present sense impression under Federal Rule of Evidence 803(a)(1), "Brown attested that it was Green who sold him the drugs."

On appeal, Green claimed, inter alia, that this evidentiary ruling was incorrect, and the Third Circuit began by noting that Federal Rule of Evidence 803(a)(1) provides an exception to the rule against hearsay for:

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

The court then properly found that:

The fundamental premise behind this hearsay exception "is that substantial contemporaneity of event and statement minimizes unreliability due to [the declarant's] defective recollection or conscious fabrication...." "The idea of immediacy lies at the heart of the exception," thus, the time requirement underlying the exception "is strict because it is the factor that assures trustworthiness...." Put differently, the temporality requirement must be rigorous because the passage of time-or the lack thereof-is the effective proxy for the reliability of the substance of the declaration; hence the greater the passage of time, the less truthworthy the statement is presumed to be, and the more the scales should tip toward inadmissibility."

The court thereafter agreed with the government that courts have not adopted a bright-line time limit after which a statement is necessarily inadmissible under Rule 803(a)(1), but it noted that it was "nevertheless unaware of any legal authority for the proposition that 50 minutes after the fact." Nonetheless, the Third Circuit found that it did not need to define "the precise temporal limits of application of the present-sense impression exception, nor whether a statement made 50 minutes after the fact could ever be properly admitted under Rule 803(a)(1). According to the court, this was so because:

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

-CM

Ford Tough: Ninth Circuit Preludes Jury Impeachment In Case Against Ford

The recent opinion of the Ninth Circuit in Beville v. Ford Motor Co., Inc., 2009 WL 394809 (9th Cir. 2009), presents a nice illustration of two types of jury conduct that do not form a proper predicate for jury impeachment.

In Beville, Dawn Beville sued the Ford Motor Company, alleging that Ford's decision not to mandate a back-up alarm on one of its semi-truck models was a design defect and that the defect caused an accident in which of one of these vehicles backed up into Paul Beville, crushing and killing him. And after a jury entered a verdict in favor of Ford, Dawn moved for a new trial.

Part of the basis for her motion was that (a) one juror prepared a series of questions and answers while at home during a break in deliberations and discussed these notes with the jury, and (b) another juror discussed his personal experience with a forklift. The Ninth Circuit, however, found that neither of these alleged acts formed the proper predicate for jury impeachment pursuant to Federal Rule of Evidence 606(b), which indicates in relevant part 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 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.

With regard to the juror's shared notes, the Ninth Circuit correctly found that the jurors shared notes were neither extraneous prejudicial information nor an improper outside influence because "the notes reflected the juror's internal thought processes, and there is no evidence the juror relied on extrinsic materials in preparing them." And with regard to the juror's forklift comments, the court again correctly concluded that "[t]he personal experiences described here were of the type permissible for discussion during juror deliberations." As support for this finding, the court cited to its previous opinion in Grotemeyer v. Hickman, 393 F.3d 871, 879 (9th Cir. 2004), where it noted that:

a juror's past personal experiences may be an appropriate part of the jury's deliberations. Indeed, 50% of the jurors' time [is] spent discussing personal experiences, according to one researcher.

-CM

Double Coverage: Supreme Court Of Iowa Finds Dying Declaration And Excited Utterance Exceptions Both Applied In Murder Appeal

The recent opinion of the Supreme Court of Iowa in State v. Harper, 2009 WL 277087 (Iowa 2009), provides a nice (but disturbing) illustration of something that I teach my Evidence students: Statements falling under the dying declaration exception to the rule against hearsay also often fall under the excited utterance exception (and also the less useful medical treatment/diagnosis exception).

In Harper, the fire department arrived at Holly Michael's home and found her in the basement, laying face down, hands and feet bound, and wrapped in a burning comforter. Her hands and arms were severely burned, and the fingers on her left hand were charred off. In the ambulance, en route to the hospital, Michael insisted that she wanted to die.

At the emergency room, a hospital staff member heard Michael say "I think I'm going to die." An x-ray technician also heard Michael say, "please don't kill me" and "Harper did it, Harper did it." Furthermore,

One of the treating physicians initially thought Michael was dead based on the severity of her burns. After he discovered she was alive and conscious, he asked her what had happened. She said that Sessions Harper had raped her, tied her, and set her house on fire. The doctor asked her to repeat what she had said, and Michael again said that Sessions Harper had raped her, tied her, and set her house on fire. Another physician treating Michael also heard what she had said. Based upon Michael's statements, a doctor performed a rape kit examination. Another attending physician treating Michael asked her who had done this, and Michael replied "Sessions Harper. He tied me up, raped me, and left me in the basement."

Eighteen days after the incident, Michael died from complications from the burns and inhalation injuries. Harper was thereafter arrested and charged with first-degree sexual abuse, kidnapping, murder, and arson. After he was found guilty on all charges based in large part on the testimony of the above medical service providers, Harper appealed, claiming, inter alia, that Michael's statements were inadmissible hearsay and/or admitted in violation of his rights under the Confrontation Clause.

The Supreme Court of Iowa disagreed, finding that Michael's statements were admissible under both the dying declaration and the excited utterance exceptions to the rule against hearsay. Iowa Rule of Evidence 5.804(a)(2), the dying declaration exception, provides an exception to rule against hearsay for:

A statement made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstances of what the declarant believed to be the declarant’s impending death.

The court correctly found that this exception applied because Michael indicated that she thought she was going to die (indeed, one doctor even thought that she was dead), and her statements clearly concerned the cause of what she believed to be her imminent death.

Meanwhile, Iowa Rule of Evidence 5.803(2), the excited utterance exception, provides an exception to the rule against hearsay for:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Again, the court correctly found that this exception applied because Michael made her statements soon after she was rescued, and she made her statements while still under the stress of excitement caused by the startling event of her burning. The court also properly found that the fact that some of Michael's statements were made in response to questions was not fatal because "the fact that a statement was prompted by a question does not automatically disqualify it as an excited utterance."

The Supreme Court of Iowa also indicated that Michael's statements could have been admissible under Iowa Rule of Evidence 5.803(4), which provides an exception to the rule against hearsay for:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

But because it had already found that the other two exceptions applied, it did not need to resolve this issue. Even if this exception would have applied (and I think it would have), it wouldn't have been very useful because generally the medical treatment/diagnosis exception has been read so as not to allow statements concerning the identity of the perpetrator to be admissible

(Finally, the court concluded that Michael's statements were not "testimonial," meaning that there was no Confrontation Clause problem).

-CM

Call for Proposals by the Workshop Program Committee for the AALS Section on Academic Support

Call for Proposals by the Workshop Program Committee for the AALS Section on Academic Support

2010 AALS Annual Meeting in New Orleans, Louisiana
Annual Meeting Dates: January 6-10, 2010

The theme of our 2010 AALS workshop will be:

“Transforming Learning in the Classroom: the 21st Century Law Professor”

The AALS Section on Academic Support will showcase how professors are transforming the learning environment of their classrooms through innovative and creative methods. Many of these methods have their roots in traditional academic support tenets of varying lesson plans to reach different learning styles, providing feedback throughout the semester, assessing students in creative ways, engaging students both in and out of the classroom, and encouraging students to take responsibility for their own learning. The committee requests proposals that demonstrate modern classroom and teaching techniques including but not limited to: active learning activities, teaching assessment procedures, exam drafting, skills development in doctrinal courses, and innovative lesson plans. Show us what’s new and different in legal education in the 21st century!

The Program Committee will give preference to presentations designed to engage the workshop audience, so proposals should contain a detailed explanation of both the substance of the presentation and the interactive methods to be employed. In addition, we would like to highlight talent across a spectrum of law schools and will look for variety in presentations and presenters. If you do not have a proposal to submit, but are interested in participating in a presentation, please contact Emily Randon (see below), as assistance with the overall workshop is always welcome.

Based on participant numbers for the last several years, we anticipate over 100 people attending the program. To assist the presenters in the interactive piece, the program committee members and other volunteers will be on hand to act as facilitators with audience members.

Proposals must include the following information:

1. A title for your presentation

2. A brief description of the objectives or outcomes of your presentation.

3. A brief description of how your presentation will support your stated objectives or outcomes.

4. The amount of time allocated for your presentation and for the interactive exercise. No single presenter should exceed 45 minutes in total time allowed. Presentations as short as 15 minutes will be acceptable.

5. A detailed description of how the presentation will be interactive.

6. Whether you plan to distribute handouts, use PowerPoint, or employ other technology.

7. A list of the conferences at which you have presented within the last three years, such as AALS, national or regional ASP or writing conferences, or other academic conferences. (The committee is interested in this information because we wish to select and showcase seasoned, as well as fresh, talent.)

8. Your school affiliation, title, courses taught, and contact information (include email address and telephone number).

9. Any articles or books that you have published describing the lesson you will be demonstrating.

Send proposals by Monday, March 9, 2009 to Prof. Emily Randon, University of California, Davis School of Law, at the email address of [email protected]. If you have questions, feel free to contact Emily Randon directly at 530-752-3434.

If you know of colleagues who are true innovators in techniques that achieve the objectives of the academic support community, please encourage them to submit proposals!

We look forward to seeing you in New Orleans!

The ASP Section Program Committee:
Emily Randon, Chair
Robin Boyle Laisure
Hillary Burgess
Barbara McFarland
Kathy Garcia
ASP Section Chair: Pavel Wonsowicz

Blue Kentucky Girl: Kentucky Court Finds That Witness' Incompetence Extends To Her Hearsay Statements

The recent opinion of the Court of Appeals of Kentucky in Harris v. Commonwealth, 2009 WL 350615 (Ky.App. 2009), reveals that if a witness is incompetent to testify at trial, her pre-trial statements also typically won't be admissible under any hearsay exception.

In Harris, Bridget Harris appealed from her conviction for first degree criminal abuse. That conviction was based in large part on the allegations of her five year-old child, A.H., who claimed that Harris burned her with a cigarette. A.H., however, did not testify to these facts at trial because the trial court deemed her incompetent to testify under Kentucky Rule of Evidence 601(b), which indicates that:

A person is disqualified to testify as a witness if the trial court determines that he:

(1) Lacked the capacity to perceive accurately the matters about which he proposes to testify;

(2) Lacks the capacity to recollect facts;

(3) Lacks the capacity to express himself so as to be understood, either directly or through an interpreter; or

(4) Lacks the capacity to understand the obligation of a witness to tell the truth.

In deeming A.H. incompetent to testify, "the trial court expressed reservations that A.H. met any of the minimal qualifications set out in KRE 601(b), with the exception that the witness demonstrated the ability to perceive." Specifically, in reaching this conclusion, the trial court noted that:

A.H. gave inconsistent, contradictory and disjointed accounts of the incident. At one point, A.H. denied that Bridget had burned her, stating that she had burned herself on a stove. Indeed, she tended to agree with whatever question was asked of her. Although A.H. could give responsive answers to biographical questions, she demonstrated little practical understanding about the obligation to tell the truth. Moreover, A.H.'s statements at the competency hearing clearly showed that she was unable to accurately distinguish between reality and imagination.

So, how did A.H.'s allegations make it to the jury? Well, A.H. made the burning allegations to nurse practitioner Stacey Smallwood and social worker Patricia Reynolds, and, after the trial court deemed A.H. incompetent to testify, it permitted Smallwood and Reynolds to testify about A.H's allegations pursuant to Kentucky Rule of Evidence 803(4). Under that Rule, there is an exception to the rule against hearsay for:

Statements made for purposes of medical treatment or diagnosis and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to treatment or diagnosis.

According to the Court of Appeals of Kentucky, the problem with this conclusion is that a child's testimonial incompetence generally extends to her hearsay statements. In other words, a witness' incompetence to testify at trial generally renders her incompetent to "testify" as a hearsay declarant. Indeed, the court noted that in B.B. v. Commonwealth, 226 S.W.3d 47 (Ky. 2007), the Supreme Court had rejected the exact same route of admissibility that the trial court approved in Harris.

And while the court in Harris noted that the court in B.B. merely found that a declarant's incompetence is a consideration in determining the admissibility of the hearsay statements, it found that based upon A.H.'s clear inability to testify at trial, her statements could not be admitted under Kentucky Rule of Evidence 803(4)

-CM

The Bloodhound Gang: Detroit Free Press Article Addresses Admissibility Of Bloodhound Tracking Evidence

An article in Monday's Detroit Free Press mentions that "[a]s an annual treat for Free Press staffers, a few dog owners participating in the 2009 Detroit Kennel Club’s dog shows Feb. 28 and March 1 brought their dogs in for a visit." In providing information about the bloodhounds, the article indicates that:

Their background as scent hounds gives bloodhounds the distinction as the only breed whose testimony is admissible in some courtrooms. They have to prove their training and background and their handler has to be sworn in, not the dog.

This is an accurate statement. As the Court of Appeals of South Carolina found in State v. White, 642 S.E.2d 607, 614 (S.C.App. 2007), courts generally admit evidence that bloodhounds tracked down a defendant if the prosecution can establish that the bloodhounds

(1)...are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2)...possess these qualities, and have been accustomed and trained to pursue the human track; (3)...have been found by experience reliable in such pursuit; [and] (4)...were put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.

Moreover,

[a] foundation for the admission of dog tracking evidence is sufficient if it provides evidence as to (1) the extent of the handler's experience and training; (2) the dog's characteristics of scent acuity and power to discriminate between human and other scents; and (3) the handler's assessment of the dog's reliability.

On the other hand, a minority of states (including Illinois), hold that dog tracking evidence is per se inadmissible because

(1) the actions of the bloodhounds are unreliable; (2) the evidence constitutes hearsay; (3) the defendant is deprived of his constitutional right to confront the witnesses against him; (4) the defendant should not be placed in jeopardy by the actions of an animal; (5) a defendant cannot cross-examine the dogs; and (6) a jury might be awed by such testimony and give it much greater weight and importance than warranted."

And at least with regard to this second conclusion, I disagree with these courts because, as I noted in a previous post, in People v. Centolella, 305 N.Y.S.2d 279 (N.Y.Co.Ct. 1969), the court correctly found that bloodhound tracking evidence

falls into the category of opinion evidence rather than hearsay. The animals are not witnesses against a defendant any more than a microscope or a spectograph. They are not subject to cross-examination any more than the animal. It is the handler who is the witness and he is merely asked to testify to what the animal actually did, not his opinion as to guilt or innocence of a person. A person is no more placed in jeopardy by the action of an animal than he is by a breath analyzer or a blood test.

Of course, some courts go in the other direction and "conclude that evidence of tracking by a dog is admissible where the dog is not a bloodhound as long as the final three foundation requirements [from the first test above] are satisfied. State v. Green, 334 S.E.2d 263, 265 (N.C.App. 1985).

-CM

A Trial That Will Live In Infamy?: Washington Case Reveals That The State Has No Version Of Rule 606(b)

A Washington judge should be able to hear about racist statements that jurors allegedly made during a medical malpractice trial because Washington state does not have a state counterpart to Federal Rule of Evidence 606(b).

An article on the case in which the racist statements were allegedly made doesn't provide much in the way of details, but it appears that Darlene and Bill Turner sued Dr. Nathan P. Stime, a Spokane general practitioner, whom they claimed committed medical malpractice in connection with a cancer diagnosis. The jury's verdict went against the Turners, and their attorney, Mark D. Kamitomo, claims that the verdict was not based upon the evidence presented at trial, but upon the jury's racism, and has filed a motion for a new trial. What separates this case from many of the cases I have discussed on this blog (such as here, here, here, here, here, and here) is that the alleged racism was directed against Kamitomo himself and not his clients.

After the verdict was entered, one juror came forward and alleged that

five jurors — three women and two men — had disparaged Kamitomo in closed-door jury proceedings, calling him "Mr. Kamikaze," "Mr. Miyashi" and "Mr. Miyagi," a character in the movie "The Karate Kid."

Another juror corroborated this claim and also indicated in an affidavit that

One juror remarked on the coincidence that their verdict would be read on Pearl Harbor Day - saying that given the date, another juror’s racially insulting remark about Kamitomo was "almost appropriate" (In an interesting/sad twist, Kamitomo's father was 8 years old when his family was seized in Vancouver, B.C., and relocated to an internment camp at Lemon Creek, B.C., after the Japanese attacks on Pearl Harbor).

So, as noted, the was not the typical juror racial bias case, and it likely won't have the typical result. As I have noted on this blog,

"Rule[606(b)] has repeatedly been held to preclude a juror from testifying, in support of a motion for a new trial, that juror conduct during deliberations suggests the verdict was tainted by racial bias." Victor Gold, Juror Competency to Testify that a Verdict was the Product of Racial Bias, 9 ST. John's J. Legal Comment.125 (1993).

Washington, however, does not have a version of Federal Rule of Evidence 606(b). According to the Court of Appeals of Washington, Division 2, in Marvik v. Winkelman, 109 P.3d 47, 50 (Wash.App. Div. 2 2005),

Although many jurisdictions do not allow a juror to impeach a verdict, our State allows juror affidavits or declarations to impeach a verdict as long as the information provided does not relate to a factor that "inheres in the verdict...." Generally, a fact "inheres in the verdict" if it "relates to the effect of evidence or events upon the mind of a juror, or is directly associated with the juror's reasons, intent, motive, or belief, when reaching the verdict."

Thus, the jurors should be able to impeach their verdict through testimony concerning the racist statements but not by testifying about the effect of any of those statements on their verdict.

(Hat tip to Professor Ann Murphy, who posted the story on the Evidence Professor Listserv).

-CM

Of A Constitutional Character?: Eastern District Of Michigan Denies Constitutional Challenge To Admission Of "Other Bad Acts" Evidence

In its recent opinion in Fields v Howes, 2009 WL 304751 (E.D. Mich. 2009), the United States District Court for the Eastern District of Michigan denied Randall Lee Fields' petition for a writ of habeas corpus, finding that "[t]here is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence." And I would imagine that any court would reach the same conclusion, whether presented as part of a habeas petition or as part of a direct appeal.

In Howes, Randall Lee Fields filed a pro se petition for a writ of habeas corpus, challenging his convictions for two counts of third-degree criminal sexual conduct based upon the following facts adduced at trial:

The victim testified that he met defendant when he was approximately twelve years old through defendant's nephew whom the victim met on a school bus. Defendant lived across the street from the victim. The victim also met James Philo, another adult, at defendant's house. After the victim started “hanging out” with defendant, Philo moved into defendant's house and the three of them spent time together watching television and sometimes pornographic films. The victim described one instance when, after consuming alcohol and smoking marijuana, the defendant and Philo went into the bedroom where defendant performed oral sex on the victim. Philo also placed his mouth on the victim's penis. The victim testified that defendant performed oral sex on him on two separate occasions. Deputy Batterson testified that while defendant was in custody on an unrelated domestic abuse matter, he was questioned about his relations with the victim. Defendant provided a statement that corroborated the victim's testimony but added that on one occasion he engaged in oral sex with Philo and the victim in a motel in Toledo, Ohio and that he masturbated the victim on two other occasions.

In his petition, Howes claimed, inter alia, that the trial court erred in admitting "other act" evidence regarding uncharged sexual relations he had with the victim and in admitting testimony that Philo also engaged in sexual acts with the victim. On Howes' direct appeal to the Court of Appeals of Michigan, he had previously argued that this "other act" evidence was inadmissible under Michigan Rule of Evidence 404(b), but that court rejected that argument, concluding that:

The prosecution did not offer this evidence as Rule 404(b) evidence, but rather, as part of the whole story surrounding the criminal acts for which defendant was charged. The evidence was admissible as part of the res gestae of the offenses, independent of MRE 404(b)...." Evidence of other criminal acts is admissible when so blended or connected with the crime of which [the] defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime...." Here, defendant fostered a relationship between himself and the victim as well as between Philo and the victim. The three spent time together on several occasions watching television and pornographic films. On occasion, defendant offered the victim alcohol and marijuana. It was under these circumstances and on more than one occasion that defendant had sexual relations with the victim and/or Philo had sexual relations with the victim in defendant's presence. These acts were so blended with the crimes defendant was charged with that they incidentally explained the circumstances of those crimes. Therefore, the trial court did not err in admitting this evidence. People v. Fields, 2004 WL 979732 (Mich.App. 2004).

In his petition for writ of habeas corpus, Howes did not reallege this evidentiary argument but instead argued that Michigan violated his right to due process by allowing for the admission of propensity evidence in the form of other bad acts evidence. And, the Eastern District of Michigan rejected that argument, finding that “[t]here is no clearly established Supreme Court precedent which holds that a state violates due process by permitting propensity evidence in the form of other bad acts evidence.”

But what would have happened if Howes raised this argument on his direct appeal to the Court of Appeals of Michigan? Well, the trial court had to admit the other bad acts evidence at issue as res gestae because it does not have a state counterpart to Federal Rule of Evidence 414, which permits the admission of the defendant's other acts of child molestation in his prosecution for child molestation.  And as I recently noted with regard to that Rule, it has withstood multiple constitutional challenges."  I thus don't think that any court under any circumstance would have agreed with Fields.

-CM

The Change He Deserved?: Seventh Circuit Engages In Interesting Rule 407 Analysis In Wyeth Appeal

The recent opinion of the Seventh Circuit in Giles v. Wyeth, Inc., 2009 WL 331290 (7th Cir. 2009), provides me with the opportunity to discuss a couple of interesting aspects of Federal Rule of Evidence 407, the subsequent remedial measure rule.

In Giles, Jeff Giles, a forty-six-year-old man, took his life in the fall of 2002. His widow thereafter filed a wrongful death suit against Wyeth, the manufacturer of Effexor, the antidepressant Giles began taking two days before his death. A jury found in favor of Wyeth, and Giles' widow subsequently appealed, claiming, inter alia, that the district court erred by precluding her from introducing warnings that accompanied Effexor in the years following Giles' death.

The first question that the Seventh Circuit had to address was whether the district court excluded evidence of these warnings under Federal Rule of Evidence 407 or Federal Rule of Evidence 403. Rule 407 indicates in relevant part that:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.

And, Rule 403 provides 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.

The Seventh Circuit concluded that the district court excluded evidence of these warnings under Rule 403 for two reasons. First, the district court initially granted Wyeth's motion in limine seeking to exclude this evidence by concluding that "[p]ost remedial measures will not be-they're not admissible. The Court is exercising its discretion not to admit that." If the court were applying Rule 407, its decision would have been mandatory, not discretionary whereas rulings under Rule 403 are discretionary. Secondly, and more importantly, during trial, the plaintiff's counsel asked the district court to revisit its pre-trial ruling, but the court still precluded the evidence, finding that "[u]nder 403, although relevant, the Court's going to exclude this evidence finding that its probative value is substantially outweighed by the confusion of the issues before this...jury."

So, why did this distinction matter? Well, if the district court had deemed the evidence inadmissible under Rule 407, its ruling would have been legal and as such reviewed by the Seventh Circuit de novo. But, because the district court excluded this evidence under Rule 403, its ruling was factual, and the Seventh Circuit could only have reversed for abuse of discretion. And the Seventh Circuit found no such abuse.

The Seventh Circuit engaged in a fairly extended review of the district court's opinion, but in the heart of its analysis, it found that the district court's Rule 403 ruling was proper because:

The warnings that accompanied Effexor after Mr. Giles's death had little, if any, probative value in this case. First, and most significantly, the excluded warnings did not help establish that Wyeth knew or should have known about an increased risk of suicidality in adults of Mr. Giles's age. Mr. Giles was forty-six years old when he took Effexor. The excluded post-2002 warnings, however, focused on children and adults younger than twenty-five years old. The "black box" in the 2005 warning, for example, was entitled "Suicidality in Children and Adolescents" and warned that antidepressants had increased the risk of suicidal thinking and behavior in children and adolescents with major depressive disorder and other psychiatric disorders. But it made no such statement about adults. The 2007 warning expanded the 2005 black box warning to "young adults," meaning persons younger than twenty-five, but Mr. Giles did not fall within this age group either.

Instead of suggesting an increased risk of suicidality, the Effexor warnings after 2002 actually more directly disclaimed any increased risk of suicidality in adults of Mr. Giles's age. The 2007 black box warning, the most recent one at issue, made explicit that for a person in Mr. Giles's age group, no increased risk of suicidality had been shown. It unambiguously stated: "Short-term studies did not show an increase in the risk of suicidality with antidepressants compared to placebo in adults beyond age 24." Warnings of an increased risk of suicidality that pertained only to much younger persons did not tend to show Wyeth's knowledge of an increased risk for persons of Mr. Giles's age.

Of course, the above might lead one to wonder how the evidence of Wyeth's post-2002 warnings could have been admissible under Rule 407, which is the only way that the district court could ultimately have excluded that evidence under Rule 403. Well, Wyeth did not simply voluntarily change its warnings after 2002; instead, the changes were mandated by the FDA. And while the Seventh Circuit has not yet addressed this issue, it makes sense that the Rule would not apply under these circumstances because the main policy goal of Rule 407 -- encouraging defendants to take subsequent remedial measures without fear that evidence of those changes will be used against it at trial -- does not (really) apply when the defendant legally has to take the remedial measure at issue. Indeed, this is the argument that the plaintiff made in her brief in Giles, but it is one that the Seventh Circuit did not have to address because the district court's opinion was not based upon Rule 407.

-CM

KKK In A Box?: Connecticut To Replace Controversial Intoxilyzer 5000 With Equally Controversial Alcotest 7110 MKIII-C

I've written three previous posts (here, 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.

In brief, that controversy went as follows:

-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.

But, my concerns aside, New Jersey is now using the Alcotest 7110 MK III-C, and Connecticut has just decided to follow suit as it will spend nearly $1 million to replace its current Intoxilyzer 5000 with the Alcotest. According to Lt. J. Paul Vance, the State Police spokesman, "The new machines are better technology. The current machines are seven years old and the cost to maintain them far outweighs buying new ones."

And while I have no doubt that this was part of the motivation for the switch, I am sure that a motion by attorney James "Jay" Ruane played a part as well. Ruane recently filed a motion in Superior Court on behalf of a Norwalk client arrested for drunken driving, claiming the Intoxilyzer 5000 discriminate against African-Americans. Or, as Ruane puts it with regard to the Intoxilyzer 5000s, "They are KKK in a box." The basis for this claim is that that "Dr. Michael Hlastala, a lung physiologist at the University of Washington, examined research of other lung physiologists and with his own research determined the Intoxilyzer 5000 does not adequately test black men." (Specifically, according to Hlastala, the lung capacity of an African-American male is approximately 3% smaller than that of a Caucasian. "Because of the smaller capacity, an arrestee must expel a greater fraction of his lung capacity, [and] the Intoxilyzer 5000 results are inflated by a factor of 3 percent," Hlastala concluded).

Of course the question remains whether the Alcotest 7110 MK III-C adequately tests anyone.

-CM

Dismissed With Prejudice?: Eastern District Of Tennessee Issues Strange Opinion In Appeal Alleging Juror Racial Bias

I am currently in the final stage of completing my new article, Dismissed With Prejudice, which argues that precluding jurors from impeaching their verdicts after trial based upon allegations of racial, religious, or other prejudice violates the right to present a defense. And as part of that final stage, I was scanning recent opinions on the issue and came across the opinion of the United States District Court for the Eastern District of Tennessee in United States v. Taylor, 2009 WL 311138 (E.D. Tenn. 2009). At first this seemed like a promising opinion which bucked the majority trend and allowed jury impeachment based upon allegations of racial prejudice. But on closer inspection, I realized that it was a poorly reasoned opinion that, to paraphrase Inigo Montoya, doesn't mean what the judge thinks it means.

In Taylor, Rejon Taylor, an African-American man, was convicted of four capital offenses in connection with a carjacking, kidnapping, and murder and given a death sentence. He thereafter moved for a new trial and evidentiary hearing and moved to interview jurors ahead of that hearing. The basis for the latter motion was at least two-fold. First, according to alternate juror Everage Holloway and two regular jurors, all 12 seated jurors and all six alternates were aware of and discussed media reports which indicated that Taylor had called jurors "racist rednecks." Also, according to Holloway, he "heard (jurors) talking about how we needed to make an example of him. It was like, here's this little black boy. Let's send him to the chair, and all I ever thought was that he made the unluckiest (gun)shot of his life."

In addressing Taylor's motion, the court considered Federal Rule of Evidence 606(b), which indicates in relevant part 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 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.

Under this Rule, the court's analysis of the first allegation was easy. The media reports were clearly extraneous prejudicial information, could form the proper predicate for jury impeachment, and led the court to grant Taylor an evidentiary hearing on the issue.

The second allegation posed a tougher question, and the court did not handle it well. In deciding whether it could address the allegation of racial bias, the court noted that the controlling precedent was the Sixth Circuit's precedent in Mason v. Mitchell, 320 F.3d 604 (6th Cir. 2003), which "list[ed] a juror's use of racial slurs as an internal influence" and thus not a proper subject for jury impeachment. Nonetheless, the court found that this "conclusion [wa]s unsupported by any discussion" and noted that the opinion went "on to discuss whether racial slurs affected the defendant's right to a fair trial." I disagree with this first conclusion. The Sixth Circuit clearly cited the Supreme Court's opinion in Tanner v. United States, 483 U.S. 107 (1987), which clearly held that something that originates from the jurors themselves is internal to the jury deliberation process and not the proper predicate for jury impeachment.

The court then cited three other opinions, which it cited for the proposition that "[o]ther circuit courts have held that evidence about jurors' racial bias is admissible under Rule 606(b) or to ensure a fair trial." But the first opinion it cited, United States v. Henley, 238 F.3d 1111 (9th Cir. 2001), concluded nothing of the sort; instead, it found that a juror's comments were admissible to show that he lied during voir dire, not to (directly) impeach the verdict. And the second opinion it cited, Shillcutt v. Gagnon, 827 F.2d 1155 (7th Cir. 1987), found that allegations of racial slurs did not form the proper predicate for jury impeachment and then, relying on Tanner, quickly shot down the defendant's argument that such an application of Rule 606(b) violated his Sixth Amendment right to a fair trial. And while the third opinion did indeed find that juror (anti-Semitic) bias did form the proper predicate for jury impeachment, "Rule[606(b)] has repeatedly been held to preclude a juror from testifying, in support of a motion for a new trial, that juror conduct during deliberations suggests the verdict was tainted by racial bias." Victor Gold, Juror Competency to Testify that a Verdict was the Product of Racial Bias, 9 ST. John's J. Legal Comment.125 (1993).

But, let's put the court's apparent cherry picking for a second. Whether properly or improperly, it clearly seems to me that the court was saying that Rule 606(b) shouldn't be read to preclude jury impeachment through allegations of racial bias and at the very least that a strong argument could be made that the preclusion of such impeachment would violate a defendant's Sixth Amendment right to an impartial jury. So, what did the court do?

Well, it snatched defeat from the jaws of victory. According to the Court,

In Tanner, the Supreme Court noted defendants' rights to a fair trial are protected by several aspects of the trial process: the determination of jurors' suitability at voir dire; the observations of the jury by the court, counsel, and court personnel; the observations of jurors by each other, who can report inappropriate behavior to the court "before they render a verdict"...; and the ability to impeach a verdict with nonjuror evidence of misconduct....Here, neither Juror # 256, Holloway, nor any other juror or nonjuror reported any incident of racial bias to the Court or court personnel. Jurors at times communicated with court personnel over scheduling issues and comfort issues, and no one reported any of the issues now raised by Holloway. At the start of trial, counsel had an opportunity to conduct suitable voir dire, which consisted of a lengthy written questionnaire and then oral questioning of jurors, first in large groups, then in small groups. In addition, the Court, counsel, and court personnel observed jurors throughout the trial without learning of any racist behavior. Finally, in its verdict form determining Defendant should receive the death penalty each juror affirmed their decision was not influenced by race. The Court concludes there is no credible allegation of racial bias infecting the proceedings.

What? Of course nobody came forward during trial. If they did, the judge would have decided whether jurors needed to be dismissed or whether there needed to be a mistrial, and those decisions could have been reviewed on appeal. In other words, Rule 606(b) would have been inapplicable. It seemed to me that the court was arguing against the Sixth Circuit precedent it was citing, but, instead, the above conclusion clearly establishes that the United States District Court for the Eastern District of Tennessee (like most courts) is never going to allow jurors to impeach their verdicts after trial through allegations of racial bias.

-CM

Litigating With The Sopranos, Take 2: New Jersey Legislature Might Approve Forfeiture By Wrongdoing Exception

In January, I wrote a post about State v. Byrd, 923 A.2d 242 (N.J.Super.A.D. 2007), an opinion by the Superior Court of New Jersey, Appellate Division, which was based upon the following facts:

Dionte Byrd and Freddie Dean, Jr. appealed their convictions for felony murder and related charges in connection with the killing of Charles "Minnesota Fats" Simmons in Simmons' apartment in Trenton in 2001.  Both Byrd and Dean were convicted in large part based upon the statements of Kenneth Bush, who indicated, inter alia, that he rode in a van to Simmons' apartment with Byrd and Dean, both of whom were armed, remained in the van while they entered the apartment, saw them return, with Byrd having suffered a gunshot wound to the leg, and heard both men discuss the shooting.

Bush, however, did not testify to these facts at trial.  Instead, he refused to testify, claiming that both defendants threatened him with bodily harm if he testified against them.  The above facts were merely what Bush told Trenton Police Detective Anthony Manzo in a transcribed, written statement.  And, at the trial court level, after a lot of legal wrangling, 

"[t]he judge stated that he was clearly convinced of the legitimacy of Bush's expressed concerns about testifying. He confirmed his ruling the next day and announced that he intended to admit Bush's statement following a reliability hearing. Thereafter, at the conclusion of the hearing,...the judge permitted Detective Manzo to read Bush's statement to the jury."

Although the judge agreed that the procedure was novel, with little case law to provide support, he was of the opinion that "no examination or cross-examination was possible given the attitude of the witness."

The defendants thus appealed, claiming that New Jersey has no counterpart to Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing exception to the rule against hearsay, which allows for the admission of

"[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."

In addressing this issue, the Appellate Division noted that since the adoption of Federal Rule of Evidence 804(b)(6), several state supreme and intermediate appellate courts have adopted the forfeiture by wrongdoing exception "through judicial decision.  But the court nonetheless reversed, concluding that

"such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with the procedure prescribed in N.J.S.A. 2A:84A-38 and -39, rather than by judicial opinion.... Accordingly,...the trial court should not have permitted Detective Manzo to testify as to Bush's out-of-court statement."

As I noted, the state subsequently appealed, and I indicated that "[w]e should have the response of the Supreme Court of New Jersey shortly."  Well, now the state's legislature might grease the wheels.  Assemblyman Sam Thompson recently introduced a joint legislative resolution that will permit New Jersey’s courts to amend its Rules of Evidence guideline to permit a "forfeiture by wrongdoing" exception to the hearsay rule, which would be patterned after the federal courts’ rules of evidence.  According to Thompson,

"This resolution will give our courts the authority to allow into evidence the statements of individuals whose well-being is threatened by the defendant or someone affiliated with the accused....Federal law permits the 'forfeiture by wrongdoing' exception to account for such occurrences.  This exception will ensure that intimidation of witnesses is not a viable defense weapon for the accused....Adding this component to the permitted hearsay rule will assist prosecutors in their efforts to overcome attempts to coerce a witness against testifying....Threatening a witness should not be an option for a defendant in either a federal or state court."

As I noted in my prior post, "at least 31 states and the District of Columbia have adopted the forfeiture rule."  Will New Jersey be next?

-CM

Not Feeling Minnesota: Minnesota Appeal Reveals That The State Allows Jury Impeachment Based Upon Internal Threats Of Violence Or Actual Violence

The recent opinion of the Court of Appeals of Minnesota in State v. Moore, 2009 WL 304802 (Minn.App. 2009), reveals that Minnesota permits jurors to impeach their verdicts after trial through testimony concerning threats of violence or actual violence by other jurors. And I wonder whether readers of this blog agree with the distinction drawn by the state.

In Moore, Curtis Moore appealed from his convictions for 1st and 3rd degree criminal sexual conduct, alleging, inter alia, jury misconduct. Specifically, the ground for this argument on appeal was that:

"Less than two hours after the verdict was entered, [juror] A.S. telephoned the district judge's chambers and stated that she was 'not ok' with the verdict....At [a subsequent] summary hearing, Moore's attorney reported that after the trial, while he was speaking to another juror about what had influenced their decision, A.S. approached and listened to the conversation. A.S. was crying. The first juror referenced some 'personal attacks' by another juror directed to him and A.S.

The district court continued the hearing to the next day and prohibited the parties from contacting any of the jurors. At the continued hearing, Moore requested a Schwartz hearing based on allegations of 'personal attacks' during deliberations and A.S.'s telephone call to the district court. The district court denied the motion, concluding that Moore had not established a prima facie case of juror misconduct. But the district court permitted the parties to contact A.S. and told them to come back if there was additional evidence supporting a Schwartz hearing. On behalf of the prosecutor, a police officer contacted A.S. that day. A.S. said she was not threatened with physical violence or coerced during deliberations, but she felt 'pressured' by the jurors to reach a guilty verdict. A report of this conversation was forwarded to the district court.

Months later, Moore's attorney sent the district court an investigator's report of a conversation with A.S. A.S. told the investigator that she did not believe that there was enough evidence to convict Moore and she felt pressured to change her vote to 'guilty.' She stated that she was not coerced or physically threatened but noted that one juror made 'highly inappropriate' personal attacks against another juror. She also stated that one of the sequestered jurors had left the hotel to move his car. Neither party moved for a Schwartz hearing based on the additional conversations with A.S."

In Moore's appeal, he claimed that the court erred in not holding a Schwartz hearing to address this alleged jury misconduct. Those familiar with Federal Rule of Evidence 606(b) might wonder why it was even a possibility that the jury in Moore might have been able to impeach its verdict based upon threatened or actual juror attacks, something internal to the jury deliberation process. That Rule (and many state counterparts) provides in relevant part 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 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."

Because threatened or actual violence by jurors does not fall under any of these three exceptions, it would not form the proper predicate for jury impeachment although some courts have mused in dicta that they might read in such an exception in an certain cases. See, e.g., Anderson v. Miller, 346 F.3d 315, 327 (2nd Cir. 2003) ("It is certainly far from unreasonable to conclude that credible allegations of threats of violence leveled by one juror by another would fall within this exception.").

Minnesota Rule of Evidence 606(b), however, states in relevant part 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 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, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict." (emphasis added).

As is clear from the italicized language, Minnesota does explicitly allow for jury impeachment based upon allegations of threatened or actual violence. The Committee Comment to the Rule both explains the reason that it was amended to be different from Federal Rule of Evidence 606(b) and the reason why the Rule was inapplicable in Moore. According to the Comment:

"The amended rule allows jurors to testify about overt threats of violence or violent acts brought to bear on jurors by anyone, including by other jurors. Threats of violence and use of violence is clearly outside of the scope of the acceptable decisionmaking process of a jury. The pressures and dynamics of juror deliberations will frequently be stressful and jurors will, of course, become agitated from time to time. The trial court must distinguish between testimony about 'psychological' intimidation, coercion, and persuasion, which would be inadmissible, as opposed to express acts or threats of violence."

So, this is the distinction I mentioned above. And I have to say that I'm not buying it. Is Minnesota saying that psychological intimidation and coercion are not clearly outside the scope of the acceptable decisionmaking process of the jury? Is it saying that a juror's threat to punch another juror if he doesn't vote "guilty" forms a proper predicate for jury impeachment but a juror's threat to ruin another juror's reputation or finances does not? Such distinctions seem arbitrary to me. What do readers think?

-CM

Lie To Me?: Supreme Court Of Maine Opinion Reveals That Jury Deliberations Can Be Used To Prove Juror Deceit During Voir Dire

The recent opinion of the United States District Court for the District of Maine in Watts v. Maine, 2009 WL 249236 (D. Me. 2009), reveals the important point that while jurors cannot testify regarding jury deliberations to impeach their verdicts after trial, they can testify regarding those same deliberations to prove that a juror lied during voir dire (which can have the effect of impeaching the verdict).

In Watts, Donald Watts filed a 28 U.S.C. Section 2254 petition, seeking to invalidate his convictions on charges of sexual misconduct. One of the grounds for Watts' appeal was that Juror 26 lied during voir dire in answering "No" to the following questions:

1. Have you or a close relative or friend ever been a victim of sexual abuse or sexual assault?

2. Have you or a close relative or friend ever been subjected to a charge of sexual abuse or sexual assault or been investigated for sexual abuse or sexual assault?

3. Have you and other family members ever been separated from one another due in whole or in part to sexual abuse or sexual assault or claims of sexual abuse or sexual assault?

4. Have you had any experiences in life that would make [it] difficult or impossible for you to consider evidence in a case of alleged sexual abuse or sexual assault objectively and impartially?

5. Is there any reason why you could not consider evidence in a case of alleged sexual abuse or sexual assault objectively or impartially?

The basis for the contention was the affidavit of Juror 19, who claimed that "during the end of deliberations and prior to the jury's final vote to convict Watts, Juror 26 'told the story of her own victimization, or sexual abuse.'" The court then questioned Juror 26, and she

"indicated that when she was seventeen years old, she was at a party drinking alcohol, and engaged in a consensual sexual experience with a teenage boy, who she thought was approximately eighteen years old. She accompanied the boy to a parked car, and they started kissing and touching each other. He eventually placed his hand down her pants, and this physical contact hurt her. This contact included digital vaginal penetration, which caused bleeding and required medical treatment afterward. When the touching hurt her, however, she told him to stop, and he did stop. She did not consider herself to be a victim of sexual abuse or sexual assault. She also testified that she did not consider her experience as a teenager to have affected her objectivity or impartiality in reaching a verdict in Watts's case. She told the court that she never even thought about this sexual experience until she was in the jury room. It was when the other jurors discussed similar life experiences involving drinking alcohol at parties when they were young that Juror 26 remembered this event, and then told the deliberating jurors about her experience."

Based upon this evidence, the trial court afforded Watts the relief he sought, but the Maine Law Court reversed. In so doing, the court first made clear the reason why it could consider the evidence at issue. The court acknowledged that under Maine Rule of Evidence 606(b),

"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 that juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any 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. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received."

But, the court noted an important "exception" to this Rule is that "serious allegations of juror bias in the context of juror dishonesty or inaccuracy in answering a voir dire questionnaire is...[a] limited circumstance when the court, within its discretion, may proceed with a post-trial hearing to inquire into potential juror bias." But the problem for Watts was that, according to the court, Juror 26 did not lie during voir dire because:

"Juror 26 did not consider herself to have been the victim of sexual abuse or a sexual assault, and never characterized the limited sexual experience she related to her fellow jurors as sexual abuse or as a sexual assault, which was what the questionnaire was directed toward. Rather, the experience that Juror 26 related to her fellow jurors was consensual, albeit uncomfortable, and an experience that would not be uncommon among teenagers and young adults."

Thus, the Maine Law Court reversed the trial court, and the United States District Court for the District of Maine saw no reason to award Watts relief under 28 U.S.C. Section 2254.

I want to make one final point about Watts because the research on my nearly completed jury impeachment article uncovered a fascinating historical tidbit. In noting the justification for Rule 606(b), the court cited to the Supreme Court's 1915 opinion in McDonald v. Pless, 238 U.S. 264 (1915), as "contributing to 'the great weight of authority in this country' establishing strict limitations on allowing jurors to impeach their verdicts." This citation was unsurprising because Pless was the most important opinion cited in support of the passage of the stricter version of Federal Rule of Evidence 606(b) and in support of its Constitutionality in Tanner v. United States, 483 U.S. 107 (1987).

And, indeed, Pless does explain in great detail why we need a strict anti-jury impeachment rule although, ironically, it also cautioned that "it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.'" But that's not the greatest irony of Pless. And that irony is that Pless was a civil appeal, with the Supreme Court finding that the private redress that could be achieved through jury impeachment was not quite enough to justify the evils that would be unleashed if jury impeachment were allowed (at least in most cases). But, here is how the Court concluded its opinion:

"The suggestion that, if this be the true rule, then jurors could not be witnesses in criminal cases, or in contempt proceedings brought to punish the wrongdoers, is without foundation. For the principle is limited to those instances in which a private party seeks to use a juror as a witness to impeach the verdict."

In other words, the essential opinion underlying Rule 606(b) found that jurors should not be prevented from impeaching their verdicts in criminal cases. And yet, that is exactly what has happened in a great deal of cases, often with Pless cited as the most compelling authority.

-CM

Withdrawal Symptoms: Eighth Circuit Opinion Raises Question Of Whether Moving To Withdraw A Guilty Plea Braches A Plea Agreement

The recent opinion of the Eighth Circuit in United States v. Quiroga, raises, but does not answer, a fascinating evidentiary issue: Does moving to withdraw a guilty plea breach a plea agreement?

In Quiroga, a grand jury charged Francisco Quiroga "with possession with intent to distribute five grams or more of pure methamphetamine within 1000 feet of a playground." Quiroga thereafter "signed a written plea agreement with the government" which contained the dreaded Mezzanatto waiver. That waiver provided in relevant part that:

"If the defendant violates any term or condition of this plea agreement, in any respect, the entire agreement will be deemed to have been breached.... If the defendant does breach this agreement, he faces the following consequences: (1) all testimony and other information he has provided at any time to attorneys, employees or law enforcement officers of the government, to the court, or to the federal grand jury, may and will be used against him in any prosecution or proceeding...."

Quiroga subsequently "entered a plea of guilty, which the district court accepted based on the report and recommendation of a magistrate judge." Two months later, however, Quiroga moved to withdraw his plea, claiming that his attorney incorrectly advised him that he could not be sentenced as a career offender. And while the court initially denied Quiroga's motion, on reconsideration, it allowed him to withdraw his guilty plea.

At Quiroga's ensuing trial, he moved to preclude the prosecution from presenting any evidence concerning his initial plea agreement and his withdrawn guilty plea pursuant to Federal Rule of Evidence 410, which indicates in relevant part that:

"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 Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

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

The district court rejected this argument, and the Eighth Circuit later affirmed, (1) noting that Quiroga failed to dispute that he breached his plea agreement when he moved to withdraw his guilty plea and (2) rejecting his argument that his agreement to waive his rights under Rule 410 was not knowing and voluntary. I am much more interested in the point that Quiroga did not contest.

You see, the district court actually did address the issue of whether Quiroga breached his plea agreement when he moved to withdraw his guilty plea. But in addressing that issue, the court found that it was bound by the Eighth Circuit's opinion in United States v. Swick, 262 F.3d 684 (8th Cir. 2001), which it thought stood for the proposition that moving to withdraw a guilty plea breaches a plea agreement. As the Eighth Circuit correctly noted in Quiroga, however, it actually didn't answer this question in Swick.

So, how would the district court have ruled if it didn't incorrectly read Swick? Well, the court actually noted in dicta that it was troubled by the "apparent assumption" in Swick

"that moving to withdraw a guilty plea is a breach of the plea agreement, triggering the clause waiving Rule 410 rights. The court says apparent assumption, because there is no explanation whatsoever in Swick...of how or why moving to withdraw a guilty plea violates a plea agreement. After all, when a party to a contract moves for declaratory judgment in a civil action to determine whether the contract is enforceable, that action is not construed to be a breach of the contract."

This conclusion makes sense to me, and taking it one step further, it the court in this hypothetical were to determine that the contract were not enforceable or voidable, the party would not be deemed to have breached the contract, just as the criminal defendant who is allowed to withdraw his guilty plea should not be deemed to have breached the plea agreement.

-CM