EvidenceProf Blog

Dismissed With Prejudice, Take 2: Recent Maryland Opinion Reveals That The Terrpain State Precludes Jury Impeachment Based Upon Allegations Of Juror Racism

In my forthcoming article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense, I cite to a number of state court opinions precluding jurors from impeaching their verdicts through allegations of juror racial prejudice during deliberations.  In the article, however, I did not cite to any opinions from Maryland, but the recent opinion of the Court of Special Appeals of Maryland in Dorsey v. State, 2009 WL 809451 (Md.App. 2009) reveals that the Terrapin State precludes jury impeachment on these grounds as well.

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Eleven Angry Men: Northern District Of Illinois Rejects Section 2255 Petition Alleging Missing Juror During Deliberations

The recent opinion of the United States District Court for the Nothern District of Illinois in United States v. Webster, 2009 WL 779806 (N.D. Ill. 2009), contains one of the more interesting jury impeachment questions that I have ever seen:  What happens when twelve angry men becomes eleven angry men?  For the Northern District of Illinois, the answer was "nothing," at least when the petitioner seeks relief based upon alleged juror misconduct.

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You're Gonna Get Out In Forever And A Day: Kentucky District Court Precludes Jury Impeachment In Capital Habeas Appeal

Last November, I posted an entry about United States v. Jackson, 2008 WL 4901375 (5th Cir. 2008), in which death-sentenced David Jackson moved for a new trial, alleging, inter alia, that the jury erroneously believed that even if Jackson were sentenced to life without parole, it was still possible he could be released before the end of his life, despite the district court's explicit instruction to the contrary. The Fifth Circuit denied Jackson's motion, finding that the jurors could not impeach their verdict through evidence of a misunderstood jury instruction.  The recent opinion of the United States District Court for the Wester District of Kentucky in Matthews v Simpson, 2009 WL 722073 (W.D. Ky. 2009), is cut from a similar cloth.

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Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay Was Improperly Admitted

The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 2009 WL 792500 (9th Cir. 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.

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Gang Related?: Michigan Court Precludes Jury Impeachment Despite Disturbing Juror Behavior

Federal Rule of Evidence 606(b) generally precludes courts from peering behind the jury room curtain after a verdict has been rendered.  Well, to put it more specifically, the Rule does not preclude courts from such peering, but it does preclude litigants from using what is found to challenge the verdict.  And, as the recent opinion of the United States District Court for the Western District of Michigan in Torrez v. McKee, 2009 WL 528950 (W.D. Mich. 2009), makes clear, what courts find is frequently disturbing.

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Recalculating, Take 4: Court Of Appeals Of New York Hears Oral Argument In Warrantless GPS Tracking Appeal

On several previous occasions on this blog (here, here, and here), I have addressed the issue of whether police are required to obtain a search warrant before attaching a GPS device to a suspect's vehicle.  In the second of those posts, I addressed the case of People v.Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), where 

a police officer, in the course of investigating a series of burglaries and acting without a warrant, attached a GPS device under the bumper of Scott Weaver's van while it was parked on a public street. Based upon the data retrieved from this device and other evidence, Weaver and a codefendant were arrested and charged with burglary in the third degree and grand larceny in the second degree in relation to a theft from a K-Mart Store, as well as burglary in the third degree and petit larceny in relation to a theft from a meat market six months earlier. After he was convicted of these crimes, Weaver appealed to the appellate division, claiming, inter alia, that the trial court erred in denying his motion to suppress all of the evidence obtained against him as a result of the warrantless placement of the GPS device on his van. 

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The Lone Ranger And Tonto Fistfight In Heaven, Take 4: Tenth Circuit Denies En Banc Request In Juror Racism Appeal

Readers of this blog are intimately acquainted with the plight of Kerry Dean Benally.  Last December, I wrote a post which laid out the basic details of his trial and its aftermath:

An officer spotted Kerry Dean Benally, a Native American man, who was allegedly driving erratically in the White Mesa area in southeastern Utah. The officer than followed Benally to his residence. At this point, according to the officer, Benally, who appeared to be intoxicated, punched the officer and struck him in the face with a flashlight. Benally was charged with assault on a federal officer, and trial began and ended quickly with the jury finding Benally guilty as charged. 

After the verdict was entered, however, a problem soon arose.  When the jury was selected to hear the case, all seated jurors denied that they had any preconceived notions about Native Americans. According to juror Karen Cano, however, some jurors were either fooling the court or fooling themselves.  Cano came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about wanting to send a message to the reservation. 

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Cross The Pages Of The Magazine: Court Notes That Consumer Complaints Are Often Admissible Under The Residual Hearsay Exception

When litigants are unsuccessful in introducing statements under the traditional exceptions to the rule against hearsay, they typically attempt to rely upon Federal Rule of Evidence 807, the residual exception, as a last resort.  Usually, courts rebuff such attempts, but as the recent opinion of the United States District Court for the Western District of Pennsylvania in F.T.C. v. Magazine Solutions, 2009 WL 690613 (W.D. Pa. 2009), makes clear, courts generally have found that consumer complaints qualify for admission under Rule 807.

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Bringing Good Things To Light?: Action Against GE Healthcare Reveals That Illinois Still Uses The "Control Group" Test For Corporate Attorney-Client Privilege Claims

In Upjohn v. United States, 449 U.S. 383 (1981), the Supreme Court explicitly rejected the "control group" test for determining which communications between a lawyer and members of a corporation are protected from disclosure by the attorney-client privilege.  And while Upjohn was not binding upon the application of state rules of evidence/privilege, many states subsequently reached the same result.  But as the recent opinion of the United States District Court for the Northern District of Illinois in Resurrection Healthcare and Factory Mutual Insurance Company v. GE Healthcare, 2009 WL 691286 (N.D. Ill. 2009), makes clear, Illinois is not one of those states.

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The Things We Do For Love: Tenth Circuit Refuses To Craft "Homosexual Exception" To Bias Questioning

The recent opinion of the Tenth Circuit in United States v. Baldridge, 2009 WL 692107 (10th Cir. 2009), reveals that lawyers are given wide latitude to inquire into potential biases that witnesses harbor against or in favor of the parties in a lawsuit.  And according to the court in Baldridge, that latitude extends to questions regarding a homosexual relationship between witness and party.

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News To Me: Aggravated Robbery Appeal Reveals That Texas Does Not Allow For Jury Impeachment Based Upon Extraneous Prejudicial Information

The recent opinion of the Court of Appeals of Texas in Cox v. State, 2009 WL 692606 (Tex.App.-Tyler 2009), reveals that, unlike Federal Rule of Evidence 606(b), Texas Rule of Evidence 606(b) does not permit jurors to impeach their verdicts through allegations that extraneous prejudicial information tainted the deliberation process. And, as Cox makes clear, the consequence of this difference is that jurors cannot impeach their verdicts through allegations that their verdict was based upon a prejudicial newspaper story rather than the evidence presented at trial.

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Oh Microsoft, Microsoft, Moderation Please: Rhode Island Seemingly Applies Frye In Microsoft Patent Infringement Trial

Here's a quick recap of the recent opinion of the United States District Court for the District of Rhode Island in Uniloc USA, Inc. v. Microsoft, 2009 WL 691204 (D.R.I. 2009):  Expert damages testimony in patent infringement cases is unreliable, but it should be admissible because it is generally accepted.

Uniloc involves Uniloc Singapore Private Limited's claim that Microsoft's Product Activation technology ("MPA") in software products such as Windows and Office infringes Claims 12 and 19 of Uniloc's U.S. Patent 5,490,216 ('216 patent).  According to Uniloc, this infringement was willful; according to Microsoft, it has an invalidity defense, and the '216 patent is unenforceable based on inequitable conduct. But none of these arguments were the basis for the court's recent ruling.  Instead, the court was addressing Microsoft's motion to preclude Uniloc's damages expert from testifying at trial.  And the result is an opinion both colorful and troubling.

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Like A Virgin (Islands' Opinion)?: Supreme Court of V.I. Finds 1953 Uniform Rules Of Evidence Apply In Criminal Trials

The 1953 Uniform Rules of Evidence were kind of like Betamax or HD DVD: they just never really caught on and were eventually supplanted by a better competitor. See Michael Teter, Acts of Emotion: Analyzing Congressional Involvement in the Federal Rules of Evidence, 58 Cath. U. L. Rev. 153, 158 (2008).  For the Uniform Rules of Evidence, the competitor was the Federal Rules of Evidence, and the Uniform Rules of Evidence raised he white flag in 1974 when they were amended to be "nearly identical to the then-proposed Federal Rules of Evidence." Deirdre M. Smith, An Uncertain Privilege: Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in the Federal Courts, 58 DePaul L. Rev. (2008). The Uniform Rules of Evidence were amended again in 1999 (and again in 2005) but I'm not sure that many people noticed; for most intents an purposes, the Federal Rules of Evidence are the only game in town.

But according to the recent opinion of the Supreme Court of the Virgin Islands in Phillips v. People, it's the 1953 Uniform Rules of Evidence that reign supreme in the Virgin Islands' non-federal courts.  And based upon the way that those Rules treat hearsay, other courts might want to reconsider the way that they do business.

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Welcome To The Blogosphere: Legal Planet (The Environmental Law and Policy Blog)

I recently came across the excellent blog Legal Planet (The Environmental Law and Policy Blog), which launched in January.  The contributors to the blog are a collection of heavy hitters in the field of environmental law: Professors Eric Biber, Ann Carlson, Holly Doremus, Ethan Elkind, Dan Farber, Richard Frank, Sean Hecht, Cara Horowitz, Timothy Malloy, Cymie Payne, Steve Weissman, and Jonathan Zasloff. Some of the recent interesting posts on the blog have covered issues such as state insurance regulators taking steps toward addressing climate risk, mandatory renewable portfolio standards, and California's salmon crisis.  I strongly recommend the blog to readers of this blog.

-CM  

Curiosity Killed The Jury?: New York Times Story Addresses The "Google Mistrial"

On March 8th, I posted an entry about an appeal in which the Eleventh Circuit refused to allow jurors to impeach their verdicts through allegations that "jurors allegedly exchang[ed] e-mails both during trial and during deliberations."  At the time, I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Well, yesterday, John Schwartz took on this issue, and the issue of jurors doing internet research, in his New York Times article, As Jurors Turn to Web, Mistrials Are Popping Up. 

The launching point for Schwartz's article was a "big federal drug trial in Florida" which recently ended in a mistrial based upon nine jurors doing research on the case on the internet." According to Schwartz, this type of mistrial

might be called a Google mistrial. The use of BlackBerrys and iPhones by jurors gathering and sending out information about cases is wreaking havoc on trials around the country, upending deliberations and infuriating judges.  

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You're On Notice: Eleventh Circuit Finds that Rule 404(b)'s Notice Requirement Doesn't Apply To Intrinsic Evidence

The recent opinion of the Eleventh Circuit in United States v. Watley, 2009 WL 635185 (11th Cir. 2009), reveals that the criminal pre-trial notice requirement of Federal Rule of Evidence 404(b) applies only if the evidence at issue is extrinsic to the charged offense.

In Watley, Anthony Watley appealed from his convictions for being a felon in possession of firearms, possessing cocaine with intent to distribute, and possessing a firearm in furtherance of a drug trafficking offense. These convictions resulted from a drug bust at Watley's house on May 22, 2007, and the prosecution also presented evidence of prior drug sales at Watley's house on April 30, 2007 and May 18, 2007.

On Watley's appeal, the Eleventh Circuit rejected his argument that evidence regarding these other drug sales was inadmissible under Federal Rule of Evidence 404(b); instead, the court found that:

Since Watley was charged with possessing cocaine with intent to distribute, the government was entitled to establish, through circumstantial evidence, Watley's knowledge of the cocaine at the house and knowledge of, if not direct participation in, the drug distributions that occurred there.

The court also found that the evidence of the other drug sales was admissible to explain why a search warrant was obtained for Watley's house.

Watley also raised the argument that the evidence of these other drug sales was inadmissible because the prosecution failed to provide him with pre-trial notice of its intent to introduce this evidence in accordance with the last clause of Federal Rule of Evidence 404(b), which states that:

the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

The Eleventh Circuit, however, rejected this argument, finding that the evidence at issue was intrinsic, rather than extrinsic, to the charged offense. In other words the evidence of the other contemporaneous drug sales was "inextricably intertwined" with the charged offense, both in terms of the behavior of Watley in committing the subject crime and the police in investigating that crime. And because it was intrinsic evidence, Watley should have known that the prosecution would admit it and was not entitled to the pre-trial notice otherwise required by Federal Rule of Evidence 404(b)

-CM

Call For Papers & Panels: Outsiders Inside: Critical Outsider Theory and Praxis in the Policymaking of the New American Regime

LatCrit XIV: Fourteenth Annual LatCrit Conference
http://www.latcrit.org/

CALL FOR PAPERS & PANELS

OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS
IN THE POLICYMAKING OF THE NEW AMERICAN REGIME

American University - Washington College of Law
Washington, D.C.
October 1 - 4, 2009


Please join us at LatCrit XIV, the Fourteenth Annual LatCrit (Latina and Latino
Critical Legal Theory, Inc.) Conference, which will take place in Washington, D.C.,
from Thursday, October 1 through Sunday, October 4, 2009.

LatCrit/SALT Junior Faculty Development Workshop

The Seventh Annual Junior Faculty Development Workshop, sponsored jointly with the Society of American Law Teachers (SALT), will begin at 9:00 am, Thursday, October 1st and continue through Friday morning.

LATCRIT XIV THEME

OUTSIDERS INSIDE: CRITICAL OUTSIDER THEORY AND PRAXIS IN THE POLICYMAKING OF THE NEW AMERICAN REGIME

In October 2009, LatCrit will meet inside the Beltway for the first time in its history amidst a tectonic shift in American government. With the January inauguration of President Barack H. Obama, the nation’s first “outsider” president, we also saw the ascendance of a new progressive governance philosophy in Washington. As a biracial former law professor with working class and immigrant roots and an international and multicultural upbringing, Mr. Obama ran a progressive campaign that echoed many core LatCritical values, including internationalism and global-mindedness, the valorization of human rights and multidimensional diversity, the centrality of antidiscrimination work, a commitment to rigorous interrogation of longstanding dominant assumptions and norms, and a preference for discourse and dialogue over militarism. Notably, President Obama’s Yes We Can! campaign slogan has its roots in the ¡Si Se Puede! rallying cry coined by Dolores Huerta of the United Farm Workers movement and invoked in more recent progressive and mostly Latino/a political actions.

The new Presidential administration and enlarged bicameral Democratic majority in Congress account only for part of the historic paradigmatic transition in American national government. The ongoing deterioration of the American and world economies also has catalyzed an aggressive reassessment by moderate and even some conservative thinkers of the wisdom of the Reagan Revolution’s uber alles dependency on the private marketplace for the realization of the public good – an antiregulatory disposition that dominated federal government through the last seven presidential administrations. In the United States, the failure of the government’s dominant antiregulatory disposition to prevent the ensuing economic meltdown has catalyzed a new, aggressive Federal response in the form of much more statist economic interventions, including the de facto nationalization of key economic components. To add irony, it was the administration of President George W. Bush – the loudest in exalting the power of unbridled private marketplaces to regulate themselves – that laid the foundation for the national takeover of large sectors of the financial services and banking industries.

These quantum changes in the leadership and driving philosophies of American government present unique and in some cases unprecedented opportunities for scholars engaged in critical outsider scholarship to influence and inform national policy and legislation. The new executive and legislative branch incumbents have telegraphed early receptivity to the instantiation of LatCritical and other progressive theories and principles in the tangible products of Federal government (i.e., legislation, regulation, presidential directives, and, of course, caselaw). As President Obama’s aspirational campaign continues to transition into the nouveau regime at the helm of the most powerful government on Earth, millions of Americans expect the vague Yes We Can promise to become the Yes We Are reality.

But with these openings come potential pitfalls. Although the ascendance of a putatively progressive president and likeminded Congressional majority indeed may open up new opportunities to bridge the theory/praxis chasm, it also may pose serious challenges to the independence and even legitimacy of progressive critical theory movements. Should the cooption or even distortion of conservative theory by militaristic, extremist partisan politicos serve as a cautionary tale in the formation of new relationships between the progressive government and outsider critical theorists? More specifically, what if the first year in office of the Yes We Can presidential candidate unfolds into more of a No We Won’t disappointment? What if the exigencies of governing to and from the middle – which many pundits insist is the sine qua non for reelection viability – result in the sacrificing of Obama’s progressive promise? What roles should outsider critical legal scholars and their scholarship assume then? More generally, what should the incarnation of progressive theory in the new American regime look like? And what prevents that theory from being co-opted and corrupted by the corroding influences of insider power?

The LatCrit XIV Host Committee invites the submission of proposals for panels and papers related to this open-textured theme and encompassing the fullest array of theoretical and doctrinal topics and approaches. Because we will be in Washington, DC, we encourage the submission of paper and panel proposals propounding prescriptive critiques of discrete areas of law, policy and regulation of specific relevance to outsider communities, including (but by no means limited to) economic justice, international and comparative law, criminal law and the death penalty, civil rights and constitutional law (including gender and LGBT equality, reproductive and disability rights), feminist legal theory, immigration, political and electoral (dis)enfranchisement, communications policy and intellectual property, healthcare, education, employment, tax policy, and the environment. We also, of course, welcome proposals for more theoretical panels and papers, particularly (but not exclusively) in areas linked to the challenges posed by progressive governance and the ascendance of outsiders to positions of ultimate authority.

Please submit your panel and paper proposals through the online process at the LatCrit website (http://www.law.du.edu/latcrit/index.htm) no later than MONDAY, APRIL 27, 2009. Please note that although paper proposals for work-in-progress sessions may be submitted now, we will continue to accept those proposals through mid-July (please refer to LatCrit website for forthcoming additional details).

Standing LatCrit Themes

LatCrit conferences seek to feature and balance four basic perspectives in organizing each annual conference’s substantive program. These four perspectives are listed as themes below. They have, thus far, served as useful lenses of LatCritical inquiry, enabling LatCrit scholars to develop an impressive body of work that increasingly links issues of identity to the substantive analysis of law, policy and process. This effort to link identity issues to substantive analyses has been particularly fruitful in revealing the way race and ethnicity are implicated precisely in those areas of law and policy that are ordinarily thought not to be about race and ethnicity: for example, in the operations and assumptions of international law and legal process, foreign affairs, liberal democracy, religion and sexuality, to name just a few areas of recent LatCrit attention.

To build on these accomplishments, everyone is encouraged to develop their proposals with a view to: (1) expanding our understanding of the impact of race and ethnicity in substantive areas of law and policy ordinarily thought to be about "something other than race" (e.g. issues of sovereignty, labor rights, globalization, intellectual property, antitrust law); and (2) deepening our analysis of the various ways in which identity issues intersect, conflate and conflict in our self-understandings and coalitional efforts. The following four themes are offered, therefore, as possible points of reference for thinking in new ways about familiar issues (like affirmative action and bilingual education), as well as for encouraging critical forays into new substantive areas (like communications or antitrust laws):

1) Papers or panels that focus on the multidimensionality of Latina/o identity and its relationship to current legal, political and cultural regimes or practices. The ideal is to explicate aspects of the Latina/o experience in legal discourse, both domestically and internationally. Nonetheless, you are free to address identity issues that do not specifically touch upon Latina/o identity or the law.
2) Papers or panels especially salient to this region (the East Coast). Regional emphasis ensures that the Conference's geographic rotation will illuminate local issues, helping us understand how local particularities produce (inter)national patterns of privilege and subordination.
3) Papers or panels that elucidate cross-group histories or experiences with law and power, such as those based on the intersections of class, gender, race, sexuality and religion. In this way, each Conference aims to both elucidate intra-Latina/o diversities and contextualize Latina/o experience within inter-group frameworks and Euro-Heteropatriarchy. Accordingly, we constantly ask how we can create progressive movements, communities and coalitions that meaningfully recognize difference.
4) Papers or panels that connect or contrast LatCrit theory to other genres of scholarship, both within and beyond law and legal theory, including but not limited to the various strands of critical outsider jurisprudence (critical race theory, feminist legal theory, queer legal theory) that critique class, gender, race, sexuality and other categories of social-legal identities and relations.

The Sponsoring Institution – American University Washington College of Law

Founded in 1898, the American University Washington College of Law is the first law school in the world founded by women, Ellen Spencer Mussey and Emma Gillett, who did so in part to combat the de facto exclusion of women from legal education and practice. WCL also was the first law school to have a woman dean and the first to graduate an all female law school class. The law school later expanded its mission to provide more generally opportunities for those historically outside the mainstream of the legal profession.

Today WCL is one of the most diverse law schools in the country, with 1,216 full-time JD students (40% identifying as minorities and 55% women), 160 students in two LLM degree programs and 25 SJD candidates. WCL’s student body includes native speakers of 92 languages and dialects, with almost all nations of the world represented. Its main building at 4801 Massachusetts Avenue, NW, occupies nearly 180,000 square feet over six stories, including the 54,000-square foot Pence Law Library.

WCL’s faculty consists of 61 tenured and tenure-track and over 100 active visiting and adjunct professors engaged in teaching, scholarship and service benefiting a myriad of professional and community institutions and social justice causes. Dr. Claudio Grossman, WCL dean and Raymond I. Geraldson Scholar for International and Humanitarian Law, is the longest serving Latino law school dean in the nation and an active practitioner of international and human rights law, currently serving as the unanimously elected chair of the United Nations Committee against Torture (UNCAT).

The Conference Sites

The LatCrit/SALT Junior Faculty Development Workshop (On Thursday, October 1) and the first full day of the LatCrit Conference (Friday, October 2) will take place in the Conference Center at the Hyatt Regency Bethesda Hotel in Bethesda, Maryland, which also will serve as the primary lodging site for conference attendees. A very accessible and comfortable hotel, the 390-room Hyatt Regency Bethesda offers two full-service restaurants, fully equipped fitness center, in-room broadband Internet access, and spacious conference facilities. The hotel is located at the heart of Downtown Bethesda, a diverse and lively urban center two miles northwest of the Washington, DC, border and three miles from American University. Over 200 restaurants, three live theaters, two cinemas, and several bookstores are within a short walk of the hotel, which sits directly above the Bethesda station on the Metro Red Line, offering rapid, low-cost and high-frequency rail service to Dupont Circle (15 minutes); the National Mall, White House, and Capitol Hill (20 minutes); and Reagan National Airport (30 minutes).

The LatCrit XIV planning committee selected the Hyatt Regency Bethesda in June 2008 after a lengthy and exacting search, and was able to lock in a significantly discounted guestroom rate for LatCrit attendees, comparable to previous LatCrit conference rates, in what is one of the most expensive hotel markets in the nation. Hotel reservation information will be made available, together with conference registration information, in early summer.

Most of the conference events on Saturday, October 3, including several rounds of panels, all work-in-progress workshops, and a community lunch, will take place at the American University Washington College of Law. Free shuttle bus transportation will be available between the hotel and the law school.

There's No Record Of It: Eighth Circuit Seemingly Finds No Criminal Case Exception To Rule 803(10)

Back in January, I posted an entry that raised a hypothetical question about the interplay between Federal Rule of Evidence 803(8)(B) and Federal Rule of Evidence 803(10). Well, in its recent opinion in United States v. Harris, 2009 WL 614771 (8th Cir. 2009), the Eighth Circuit addressed that issue. And I think that it reached the wrong conclusion.

In Harris, Antonio Harris appealed from his conviction for possessing over fifty grams of cocaine base (crack) with intent to distribute it. One of the grounds for his appeal was that the district court

erred by allowing Julie Hancock, his probation officer at the time of trial, to testify to the contents of his probation file. During the trial, Mr. Harris, in an effort to establish that Detective Liston had planted the drugs seized in his apartment, testified that the detective had harassed him on three separate occasions and that he (Mr. Harris) notified Kelly Wilkins, who was his probation officer at the time, each time he had such an encounter as he was required to do. Ms. Hancock testified that Mr. Harris's probation file, which Ms. Wilkins maintained during the time period in question, did not contain any notations indicating that Mr. Harris had made any calls to Ms. Wilkins or notified her of any supposed harassment.

Harris argued that Hancock's testimony was inadmissible under Federal Rule of Evidence 803(8)(B), which provides an exception to the rule against hearsay for:

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth... 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.

According to Harris, because Rule 803(8)(B) specifically retains the hearsay objection "in criminal cases" for "matters observed by police officers and other law enforcement personnel," the district court should have deemed Hancock's testimony inadmissible. The Eighth Circuit disagreed, concluding that:

803(8)(B) "does not bar the admission of all law enforcement agency records...." While it does prohibit the admission of records that contain opinions or conclusions resulting from criminal investigations, it does not bar the admission of records concerning routine and unambiguous factual matters....Ms. Hancock's testimony was offered for the purpose of ascertaining what Mr. Harris told Ms. Wilkins, something that involves a routine and unambiguous factual notation and not an opinion, a finding of fact, or a conclusion....Thus, even if Rule 803(8)(B) were applicable here, it would not bar Ms. Hancock's testimony.

But the Eighth Circuit noted that because Hancock was establishing the absence of a record of Harris' alleged calls, the Rule that applied was Federal Rule of Evidence 803(10), which states that:

To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

According to the court,

it is Fed.R.Evid. 803(10) that is relevant here because Ms. Hancock's testimony was not offered to show what was in Mr. Harris's file; it was offered to show what was not in it. Rule 803(10) allows for admission of testimony that "a diligent search failed to disclose [a] record" to prove the "nonexistence of a matter" where a record of such a matter would have been "regularly made and preserved by a public office or agency." Ms. Hancock testified, in part, that it was normal policy for probation officers to make an entry in a probationer's file for each contact with the probationer, and there were no notations in Mr. Harris's file indicating that Mr. Harris had contacted Ms. Wilkins. Ms. Hancock's testimony was therefore admissible to prove that Mr. Harris did not tell Ms. Williams about any alleged police harassment.

Now, it seems to me that this conclusion can be read in two ways. The first is that (a) Rule 803(8)(B) only covers reports/records that contain opinions or conclusions resulting from criminal investigations, so (b) Rule 803(10) only covers the absence of entries in reports/records that contain opinions or conclusions resulting from criminal investigations. If that's the case, I have no objection to the opinion.

But it seems to me that the Eighth Circuit reached the broader conclusion that there is no criminal case exception to Rule 803(10). And certainly, there is nothing in the language of Rule 803(10) that indicates that there is such an exception. Nonetheless, I see no good reason why there would be a criminal case exception to the public record/report Rule while there wouldn't be such an exception for the Rule covering the absence of entries in public records/reports. Indeed, is there really even any difference between the two Rules?

-CM

What, A Fraud?: Southern District Of Texas Refuses To Pierce Attorney-Client Privilege Based Upon Strange Fraud Allegation

The recent opinion of the United States District Court for the Southern District of Texas in Doty v. Sun Life Assur. Co. of Canada, 2009 WL 614907 (S.D. Tex. 2009), addressed a strange request to pierce the attorney-client privilege (based upon the crime-fraud exception) that the court properly rejected.

In Doty, after

Kathleen Doty, an ex-employee of Clear Creek Independent School District (CCISD), was denied long-term disability payments under the Plan maintained by CCISD, she filed suit against Defendant, Sun Life Assurance Company of Canada (Sun Life) by invoking federal jurisdiction under the Employee Retirement Income Security Act (ERISA). Unfortunately, for Doty, CCISD's long-term disability plan is a governmental plan exempted from ERISA coverage. Sun Life did not challenge the Court's jurisdiction, but moved for summary judgment on other grounds. After summary judgment was granted in favor of Sun Life, Doty's counsel realized his mistake and filed a Motion to Dismiss for lack of subject matter jurisdiction. The District Court granted Doty's Motion.

Doty thereafter, inter alia, filed a subsequent action and against Sun Life and a motion

seeking an in camera review of "all letters, memoranda or other documents discussing whether the claim of Kathleen Doty was covered by ERISA" or whether Clear Creek Independent School District was a governmental entity under 2[9] U.S.C. § 1003(b)." According to Doty, she “believes that the letters of Sun Life and their (sic) attorneys will show that they knew that ERISA did not apply to Plaintiff's claims but they were representing to the Court and to Plaintiff that ERISA did apply. This is fraud,” she concludes. Consequently, Doty wants the Court, under the guise of the Crime/Fraud Exception of Rule 503(d)(1) of the Texas Rules of Evidence, to examine and, hopefully, disclose the documents otherwise covered by the attorney-client or work-product privileges.

Nonetheless, while finding Doty's motion to be "tempting," the ultimately rejected it because

[e]ven if the Court were to assume fraud,...the disclosure of the suspected supportive documents are of no use to Doty in pursuit of her claim for long-term disability benefits. Sun Life's attorneys cannot be sued by Doty for fraud. Under Texas law, attorneys cannot be held liable to the opposing party for wrongful litigation conduct...; if any attorney's conduct violates his professional responsibility, the remedy is public, not private....Nor can Sun Life be sued for fraud, because, generally, claims of fraud cannot arise from legal opinions....While there are three recognized exceptions to the latter Rule, none apply here. First, Sun Life had no superior knowledge of the applicable law during the initial lawsuit; both Parties were represented by experienced counsel....Second, there was no fiduciary duty between Sun Life and Doty, individually....Third, the "misrepresentation" of the jurisdictional law did not concern a present factual state of affairs; Doty knew she had been an employee of CCISD and her counsel was free to research the apparent jurisdictional concession of Sun Life.

All that's fine and dandy, but I think that I have a simpler reason why the court should have rejected Doty's motion. And that reason is that I see no possible reason why Sun Life would have wanted to commit a fraud upon the court by moving for summary judgment when it was at least somewhat apparent that there was no subject matter jurisdiction over Doty's claim. It is well established under Federal Rule of Civil Procedure 12(h)(3) that the defense of lack of subject matter jurisdiction can never be waived, even after a court has entered a verdict, order, opinion, etc. Indeed, this is why Doty's counsel was able to successfully file a motion to dismiss for lack of subject matter jurisdiction even after the court granted Sun Life's summary judgment. Based upon these facts, I don't see how Sun Life's behavior could be construed as fraudulent, unless the company was acting at the level of Brad Pitt in Burn After Reading.

-CM

Mississippi Mistake: Court Of Appeals Of Mississippi Misapplies Felony Conviction Impeachment Rule In Drug Appeal

The recent opinion of the Court of Appeals of Mississippi in Young v. State, 2009 WL 596660 (Miss.App. 2009), is the latest example of a court incorrectly applying the felony conviction impeachment rule.

In Young, Elliot Young appealed from his conviction on two counts of unlawful sale of cocaine to an undercover informant. That conviction came after the jury rejected Young's entrapment defense, which his attorney first raised in his opening statement when he made the remark that "these charges are preposterous, and it's a set-up situation and [Young] certainly did not sell cocaine to the confidential informant."

Before Young testified, he sought to preclude the prosecution from impeaching him through, inter alia, evidence that he had a prior felony conviction for possession of cocaine seven years before trial. The trial court rejected this argument, concluding that the conviction was admissible under Mississippi Rule of Evidence 609(a)(1), which states in relevant part that:

For the purpose of attacking the credibility of a witness,...evidence that...a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party

As I note in my article, Impeachable Offenses, courts generally consider five factors in making this determination:

(1) The impeachment value of the prior crime;

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

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

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

(5) The centrality of the credibility issue.

The trial court applied these factors and found that:

the probative value of admitting the evidence outweighs any prejudicial effect. The crime has impeachment value, given the posture of the case, and given the remarks of counsel for Defense in opening statement. It was within the last I guess seven years, around seven years ago, so the timeliness of it weighs in favor of the admissibility. There's a similarity between that and the act charged here which, as far as prejudicial effect, weighs in the Defendant's favor-the third factor in Peterson, but the importance of the Defendant's testimony and the centrality of the credibility issue I think very clearly tipped the scales in favor of admissibility, and it has great-it has probative value, and the prejudicial effort would be minimal, if any.

The Court of Appeals of Mississippi gave this decision the rubber stamp of approval, but it should not have. First, drug possession convictions are thought to have low impeachment value because they are "thought to have little necessary bearing on veracity." (and I don't see how the remarks in the opening statement change anything, given that the prior conviction was not for selling drugs). Second, a gap of seven years between prior conviction and present trial generally cuts against admissibility. See, e.g., People v. Lester, 432 N.W.2d 433, 435 (Mich.App. 1988). Third, because both the prior conviction and Young's present trial involved drug offenses, the prior conviction was extremely prejudicial. Fourth, the fact that Young's testimony was very important means that the approval of his prior conviction for impeachment purposes was prejudicial because it could have led Young to refrain from testifying. Only the court's analysis under factor five was correct. And clearly, when balancing these factors, the courts should have found that the prior conviction's probative value did not outweigh its prejudicial effect.

-CM