EvidenceProf Blog

No Virtual Impeachment: First Circuit Affirms Opinion Precluding Impeachment Of Hearsay Declarant Despite Disagreeing On Rationale

Either through deliberate tactical choices, or simply as a result of precedent and inertia, our traditional approach to hearsay and confrontation is mired in exclusionary thinking. Whether one consults reported case law, or basic texts on trial advocacy, little is said of the impeachment of hearsay declarants. John G. Douglass, Beyond Admissibility:  Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 GEO. WASH. L. REV. 191, 252 (1999).

As Douglass, now the Dean of the University of Richmond School of Law, went on to note in his seminal 1999 law review article, "[t]hat omission, however, is not born of impossibility," with Federal Rule of Evidence 806 and many state counterparts providing that:

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

According to Douglass, this Rule allows for "virtual cross-examination." The problem, though, is that this Rule is "seldom used," meaning that both attorneys and judges often do not know when it applies (and when it doesn't). One clear example of this problem can be found in the recent opinion of the First Circuit in United States v. Rodriguez-Berrios, 573 F.3d 55 (1st Cir. 2009).

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The Lone Ranger And Tonto Fistfight In Heaven, Take 7: Supreme Court Denied Cert In Benally v. United States

Today, the Supreme Court denied cert in Benally v. United States, the case in which I submitted an amicus brief. The post containing my brief has links to all of my posts on the case, which dealt with whether racist statements by jurors against Native Americans during deliberations could be used to impeach a verdict entered against a Native American defendant and/or to prove that jurors lied on voir dire when they claimed that they did not harbor racial prejudice. Unfortunately, all we have is the denial of cert, so we don't know why the Court denied cert. For instance, one argument raised by the Solicitor General was that the Court should not grant cert because Benally had not yet been sentenced. If that's the case, I am hopeful that the Court will resolve the issue in the future.

-CM

EvidenceProf Blog On Twitter: http://twitter.com/EvidenceProf

You can now follow EvidenceProf Blog on twitter at http://twitter.com/EvidenceProf. On twitter, I will tweet the headline (or an abbreviated version) and a link to each new post on here. I also plan to do tweets about evidentiary issues in pop culture and evidentiary developments that didn't quite make it on the blog, but which I think might interest readers.

-CM

True Lies: Ohio Defendant Acquitted Despite Evidence Of Failed Polygraph Test Being Presented To Jury

As I have noted before on this blog, "Evidence of polygraph test results are per se inadmissible (except in New Mexico) unless both sides stipulate to their admission before the test is taken." A large part of the reason polygraph results are usually deemed inadmissible is because courts fear that jurors presented with a defendant's failed polygraph test will automatically find the defendant guilty and jurors presented with a defendant's passed polygraph test will automatically find that defendant not guilty. A recent case out of Ohio indicates otherwise. In that case, a man was charged with raping and molesting a former girlfriend's daughter, and the defense and the prosecution agreed that the defendant would take a polygraph test with the results being admissible at trial. The defendant's gamble appeared to be a losing bet as he failed the polygraph. Surprisingly, however, the jury still found that defendant not guilty. And that makes me wonder: Are polygraph results as persuasive as courts think them to be?

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Rescue 911: Court Of Appeals Of Mississippi Stretches To Finds Statements Triggered Crime-Fraud Exception To Attorney-Client Privilege

Mississippi Rule of Professional Coduct 1.6(a) provides that:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).  

Meanwhile, Mississippi Rule of Professional Coduct 1.6(b)(1) provides that "[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary...to prevent reasonably certain death or substantial bodily harm."  Additionally, Mississippi Rule of Evidence 502(b), Mississippi's attorney-client privilege provides that:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.  

So, what happens when a client's behavior triggers Mississippi Rule of Professional Coduct 1.6(b)(1) but is still covered by Mississippi Rule of Evidence 502(b)? It is an interesting question, but one which the Court of Appeals of Mississippi found that it did not have to address in its recent opinion in Shorter v. State, 2009 WL 4043361 (Miss.App. 2009). I agree with the court's conclusion but disagree with its reasoning.

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Black Friday Felony: Court Precludes Defendant From Withdrawing Guilty Plea To Charges In Connection To Black Friday Robbery Of Wal-Mart

Black Friday, the day after Thanksgiving, is the biggest shopping day of the year, with merchants and the media now referring to it as the start of the period in which retailers go from being in the red to being in the black (for more on the origins of the term, click here). It thus seems like a day that criminals, like consumers, could mark on their calendars because retailers coffers will be clogged with customers' cash. That certainly seemed to be the case in United States v. Young, 2008 WL 163045 (E.D. Pa. 2008). In Young, Christopher Young pleaded guilty to crimes in connection with the robbery of a Wal-Mart in Philadelphia (where the phrase Black Friday was coined) in the early morning hours after Black Friday. He then tried to withdraw that plea but was faced with a problem faced by many Black Friday customers: a "no return" policy.

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Turkey Of An Opinion: Court Precludes Jury Impeachment Despite Foreperson Blocking Door To Prevent Juror From Reporting "Not Guilty" Vote In Thanksgiving Related Case

Federal Rule of Evidence 606(b) 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.

As the language of this Rule makes clear, jurors cannot impeach verdicts based upon allegations that jurors engaged in threats of violence or actual violent acts against other jurors. But, as I noted in a previous post, Minnesota courts do permit jury impeachment based upon such allegations, and, as I argued in that post, I think that other courts should permit such jury impeachment as well as impeachment based upon psychological intimidation or coercion between jurors. If you disagree with me, I ask you to consider the facts of Panella v. Marshall, 2009 WL 2475007 (E.D. Cal. 2009).

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Article of Interest: The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges By Professors Mosteller And Broun

In Rob Reiner's classic movie "The Princess Bride" (based upon William Goldman's equally classic book), the following exchange occurs:

Vizzini:  HE DIDN'T FALL? INCONCEIVABLE.

Inigo Montoya:  You keep using that word. I do not think it means what you think it means.

In their forthcoming article, The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges, University of North Carolina School of Law Professors Robert P. Mosteller and Kenneth S. Broun argue that the Supreme Court of North Carolina played the role of Vizzini in a recent opinion. In that opinion, State v. Rollins, 675 S.E.2d 334 (N.C. 2009), the North Carolina Supremes found that statements which Mickey Rollins made to his wife when she visited him in prison, and which she surreptitiously recorded for authorities, were not privileged under N.C.G.S. Section 57(c), North Carolina's privilege for confidential marital communications.

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Trust Me: Supreme Court Of Appeals Of West Virginia Reverses Murder Conviction Based Upon Expert Opinion Testimony On Credibility

A man is on trial for first degree murder and felony conspiracy, and the primary witnesses against him are a police corporal and another corporal's girlfriend. Defense counsel cross-examines these witnesses for the prosecution about factual discrepancies in their testimony but does not engage in a broad based attack on the credibility of either witness. In response, the prosecution has the chief investigator for the State testify that, in his opinion, these two witnesses were telling the truth. As the recent opinion of the Supreme Court of Appeals of West Virginia in State v. Martin makes clear, there are two fundamental problems with this line of questioning by the prosecution.

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A Taxing Matter: Fifth Circuit Finds Exception To Confidential Marital Communications Privilege Applied In Tax Fraud Appeal

Federal courts recognize a confidential marital communications privilege, under which (according to most courts) a spouse can prevent a testifying spouse from testifying about confidential marital communications and/or a testifying spouse can refuse to testify about confidential marital communications. Some federal courts, however, have an exception to this privilege for confidential marital communications about crimes in which the spouses are jointly participating. But what happens when a spouse proposes criminal activity that would implicate both spouses and the other spouse advises against that criminal activity, but the proposing spouse nonetheless engages in the criminal activity? Should the exception apply? That was the issue faced by the Fifth Circuit in its recent opinion in United States v. Miller, 2009 WL 3924052 (5th Cir. 2009). I think that the court got it wrong.

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Summary Judgement: First Circuit Finds Summary Evidence Summarizing Testimony Admissible Under Rule 1006 In Tax Appeal

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

In its recent opinion in United States v. McElroy, 2009 WL 3932266 (1st Cir. 2009), the First Circuit had to decide whether and when this Rule applies to summary evidence that summarizes testimony as opposed to summary evidence that summarizes documents.

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Double Impact: Article Reveals That Indiana Precludes Victim Impact Statements In Cases Where The Death Penalty Or Life Without Parole Could Be Imposed

I have written several posts on this blog about the ever controversial topic of victim impact statements (previous posts can be found here, here, here, here, here, here, and here). Those posts have dealt with topics such as the type of music that can accompany such statements, whether such statements can invoke religious authority, whether such statements are admissible in cases of defendants found not guilty by reason of insanity, and whether the admission of such statements should be mandatory (in Ireland). This post deals with the near converse of the proposed Irish rule: whether such statements should be per se prohibited in cases that could result in the death penalty or life without the possibility of parole being imposed. As a recent article makes clear, that is (in essence) currently the law in Indiana.

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Judge Advocate?: Court Of Appeals Of Ohio Finds Judge Didn't Abuse Discretion By Asking 89 Questions To Witness In Domestic Violence Trial

Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Similarly, Ohio Rule of Evidence 614(B) provides that "[t]he court may interrogate witnesses, in an impartial manner, whether called by itself or by a party." But when does a court go too far? In the words of the Ohio rule, when does the judge overstep his power and transform from an impartial interrogator into a partisan advocate? That was the question that the Court of Appeals of Ohio, Eighth District had to answer in its recent opinion in State v Redon, 2009 WL 3765971 (Ohio App. 8 Dist. 2009). And I am not entirely satisfied with its answer.

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Compromising Position: Court Of Appeals Of Texas Notes That Rule 606(b) Precludes Jury Impeachment Regarding Compromise Verdict

Texas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

As the recent opinion of the Court of Appeals of Texas, Texarkana, in  Orange v. State, 2009 WL 3851068 (Tex.App.-Texarkana 2009), makes clear, like its federal counterpart, Texas Rule of Evidence 606(b) does not permit jury impeachment on the issue of whether the jury reached a compromise verdict.

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Feigned Surprise Or The Real Thing?: Ohio Opinion Helps Explain Limits On Rule 607 Impeachment

Federal Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." The federal rule eliminated the old "voucher rule," under which the party calling a witness was deemed to have vouched for his credibility and thus could not impeach him. A party, however, cannot call a party for the sole purpose of impeaching him through his prior inconsistent statement(s) as is made clear by cases such as United States v. Ince, 21 F.3d 576 (4th Cir. 1994). This fact is made even clearer in Ohio Rule of Evidence 607(A) as can be seen from the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Stevens, 2009 WL 3808375 (Ohio.App. 12 Dist. 2009).

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California Split: Retaliatory Termination Case Reveals Split Between California And Federal Rules Of Evidence On Settlement Evidence

In relevant part, Federal Rule of Evidence 408 provides that

Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority (emphasis added).

In other words, for evidence relating to settlement negotiations to be deemed inadmissible under the federal rule, those negotiations must come after a claim, which means a lawsuit or at least actions from which the two sides could reasonably anticipate litigation. As the recent opinion of the Court of Appeal, Sixth District, California, in Mangano v. Verity, Inc., 2009 WL 3807485 (Cal.App. 6 Dist. 2009), makes clear, California's counterpart is not so constrained.

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Statements Against Interest And The Confrontation Clause: Professor James Duane Uncovers Troubling Statement In Advisory Committee Note To Amendment To Rule 804(b)(3)

I have written previously on this blog about the upcoming amendment to Federal Rule of Evidence 804(b)(3), the statement against interest exception to the rule against hearsay. I have also written previously about the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), and its holding that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. So, it seems natural that the 2009 Advisory Committee Note to the amendment would mention the Confrontation Clause implications of the new Rule 804(b)(3). Apparently, though, that is not the case as Regent Law School Professor James Duane notes in a very interesting and compelling e-mail to the Evidence professor listserv. Below is that e-mail, which I fully endorse:

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Make Me Whole, Take 2: Court Of Appeals Of Minnesota Gets Impeachment Ruling Right, Other Rulings Wrong In Second-Degree Murder Appeal

Minnesota Rule of Evidence 609(a)(1) states,

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect. 

Previously on this blog, I have stated my displeasure with Minnesota's "whole person" approach to Rule 609(a)(1), under which Minnesota courts usually admit prior conviction evidence without much consideration of unfair prejudice under the theory that it permits the jury to see the "whole person" of the testifying witness. The recent opinion of the Court of Appeals of Minnesota in State v. Thelen, 2009 WL 3735430 (Minn.App. 2009), is the exception to that rule, and I agree with its Rule 609(a)(1). But other parts of the opinion give me pause.

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A Body Treatise: Court Of Appeals Of Minnesota Finds Learned Treatise Exception Didn't Apply To Amnesty International Report

Like its federal counterpart, Minnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay for "statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice" to the extent that those statements are "called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination." The Rule goes on to provide, however, that "[i]f admitted, the statements may be read into evidence but may not be received as exhibits." The problem for the appellant in In re Welfare of G.S.G., 2009 WL 3736134 (Minn.App. 2009), was that he could not meet the requirements of this hearsay exception.

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Facebook Status -- Exonerated: Suspect's Facebook Update Corroborates Alibi In Brooklyn Robbery

I have written several posts on this blog (here, here, here, here, and here) about cases dealing with the admissibility of evidence from MySpace pages. A case out of New York, however, gives me my first opportunity to address the admissibility of evidence from a Facebook page. And indeed, it appears to be the first case in which a Facebook update has been used as alibi evidence.

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