EvidenceProf Blog

Keystone Case: Eastern District Of Pennsylvania Engages in Confusing Conviction Impeachment Analysis

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Now, take a look at the recent opinion of the United States District Court for the Eastern District of Pennsylvania in United States v. Bellinger, 2010 WL 3364335 (E.D. Pa. 2010), and see if you think that the court made the right ruling under Rule 609(b).

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Modern Hatfield & McCoy: Court Of Appeals Of Kentucky Notes Differences Between Rules 803(6) & (8) In Boundary Dispute

Like its federal counterpart, Kentucky Rule of Evidence 803(8) provides an exception to rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

And, like its federal counterpart, Kentucky Rule of Evidence 803(6) provides an exception to rule against hearsay for

Unless the sources of information or other circumstances indicate lack of trustworthiness, 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. The following are not within this exception to the hearsay rule:

(A) Investigative reports by police and other law enforcement personnel;

(B) Investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; and

(C) Factual findings offered by the government in criminal cases.

And, as the recent opinion of the Court of Appeals of Kentucky in Owens v. Davies, 2010 WL 3360453 (Ky.App. 2010), makes clear, the foundation requirements under Rule 803(8) are substantially more relaxed than the foundation requirement contained in the business records exception contained in Rule 803(6).

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That Was a Long Time Ago: Ohio Appellate Court Reverses Verdict Based Upon Improper Rule 609(B) Ruling

Like its federal counterpart, Ohio Rule of Evidence 609(B) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

And, as the recent opinion in Keaton v. Abbruzzese Bros., Inc., 2010 WL 3314342 (Ohio App. 10 Dist. 2010), makes clear, this is a difficult balancing test for parties to pass.

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Let's (Not) Go To The Tape: First Circuit Notes That Rule Of Completeness Doesn't Apply To Unrecorded Oral Statements

Federal Rule of Evidence 106, the "rule of completeness," provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

As the text of the Rule and the recent opinion of the First Circuit in United States v. Verdugo, 2010 WL 3260805 (1st Cir. 2010), make clear, the triggering event for application of Rule 106 is the admission of a writing or recorded statement (or part thereof); the Rule is not triggered by the introduction of testimony about unrecorded oral statements.

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Crimes And Misdemeanors? Arizona Court Implies Drug Convictions Can Qualify For Rule 609 Impeachment Based On Statutory Amendment

Like its federal counterpart, Arizona Rule of Evidence 609(a)(1) provides that

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

So, let's say that a defendant is convicted under a statute that mandates a sentence of probation, rather than imprisonment, for first-time convictions of personal possession or use of controlled substances or drug paraphernalia. But let's say that the statute also allows courts to impose additional probation conditions, including incarceration, for probation violations regarding court-ordered drug treatment, and courts can revoke probation for failure or refusal to participate in drug treatment. Could the conviction be admissible under Arizona Rule of Evidence 609(a)(1)? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Hatch, 2010 WL 3310267 (Ariz.App. Div. 1 2010), the answer seems to be "yes." I disagree.

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He Ain't Heavy, He's My Brother: Court Of Appeals Of Minnesota Concludes Jurors Would Have Ignored Brother's Character Testimony In Mercy Rule Appeal

Like its federal counterpart, Minnesota Rule of Evidence 404(a)(1) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same....

In its recent opinion in State v. Pak, 2010 WL 3304693 (Minn.App. 2010), the Court of Appeals of Minnesota correctly found that the trial court erred in failing to admit evidence under this so-called "mercy rule," but I feel like it went too far in finding this error to be harmless.

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It Was(n't) A Privilege?: Eastern District Of Wisconsin Finds Rule 408 Didn't Create A Privilege

Federal Rule of Evidence 408 states:

(a) Prohibited uses.--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.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

So, does Rule 408 merely deem evidence of settlement negotiations inadmissible at trial (when offered for certain purposes), or does it create an evidentiary privilege protecting such evidence? According to the recent opinion of the United States District Court for the Eastern District of Wisconsin in Thermal Design, Inc. v. Guardian Bldg. Products, Inc., 2010 3238921 (E.D. Wis. 2010), Rule 408 does not create a privilege, but you'd be hard pressed to explain why the court reached this conclusion.

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And No Religion Too: Fourth Circuit Fails To Find Religious Impeachment Constitutes Plain Error

Federal Rule of Evidence 610 provides that

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

At the start of the government's cross-examination of a criminal defendant, the following exchange takes place:

The Government: Mr. Munir, you swore on the Bible. Are you a Christian?

Defendant: I'm Islam, but I speak a lot of the Bible too.

After the defendant is convicted, he appeals, claiming, inter alia, that this question violated Federal Rule of Evidence 610, and the government responds that the question was designed to ensure that the defendant took his oath seriously, not to impeach his credibility per se. How should the court rule? According to the recent opinion of the Fourth Circuit in United States v. Anwari, 2010 WL 3262224 (4th Cir. 2010), the court should rule in favor of the government, at least if the defendant did not object to the question.

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There Will Be Blood: Ninth Circuit Case Raises Question Of Whether Biblical Passages Constitute Extraneous Prejudicial Information Under Rule 606(b)

Federal 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 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. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

So, let's say that a defendant is on trial for murder and during the sentencing phase of trial a juror studies the Bible, finds Genesis 9:6, which states that "[w]ho so sheddeth man's blood by man shall his blood be shed," and reads that passage to other jurors. After the jury sentences the defendant to death, can a juror impeach the verdict based upon this (mis)conduct? According to the recent opinion of the Ninth Circuit in Crittenden v. Ayres, 2010 WL 3274506 (9th Cir. 2010), the answer is "maybe," but the sentence won't be overturned.

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Instant Recall: Supreme Court Of California Finds Statement Made Three Months After Event Qualified As Recorded Recollection

Like Federal Rule of Evidence 803(5), California Evidence Code Section 1237 provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made

(i) by the witness himself or under his direction or

(ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

So, when is the fact recorded fresh in the witness' memory? Seconds later? Minutes later? Hours? Weeks? Months? Years? According to the recent opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010), even facts recorded years after they occurred can qualify as recorded recollections under California Evidence Code Section 1237. I disagree.

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Striking Out: District Of Arizona Finds Rule 11(f) Motion Inappropriate Vehicle For Evidentiary Objection

Federal Rule of Civil Procedure 11(f) provides that

The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:

(1) on its own; or

(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

So, let's say that a plaintiff includes factual allegations in a complaint which the defendant believes are based upon inadmissible evidence. Can the defendant move to strike these allegations under Rule 11(f)? According to the recent opinion of the United States District Court for the District of Arizona in TriQuint Semiconductor, Inc. v. Avago Technologies, Ltd., 2010 WL 3034880 (D. Ariz. 2010), the answer is "no."

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Passion and Prejudice: Divided S.C. Supreme Court Allows Dramatic Funeral Footage in Sentencing Phase

Members of the Bixby family in Abbeville County threatened violence when South Carolina officials informed them of plans to "take advantage of a right of way ... across the Bixbys' property" to expand South Carolina Route 72.  Steven V. Bixby, son of the property owners, informed one official "that he was from New Hampshire and he said that, you know, their motto was something like, you know, if I can't --- I'd rather be dead if I can't be free, something like that."  Days later, he said he would "blow their mother f****** heads off if they step one step onto [his] parent's property" (asterisks in original).  He made good on his threats the next day, killing two law officers on his parents' land, and was convicted of murder and sentenced to death.  State v. Bixby, --- S.E.2d ----, 2010 WL 3219290, at *1-*3 (S.C. Aug. 16, 2010) [pin cites refer to Westlaw pagination]; see also Bob Moser, "The Abbeville Horror" (Southern Poverty Law Center "Intelligence Report," Spring 2004).

The appeal raised several interesting issues, including questions concerning the proper scope of voir dire in a capital case, the relevance of proffered evidence excluded by the trial judge concerning the family's prior experience with property disputes, and how ignorance of the proper location of South Carolina records concerning highway rights of way can disqualify a witness from testifying.  I recommend the entire opinion.  This post, however, concerns only the admission during the penalty phase of a videorecording of the funeral of a victim.

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Can I Get A Witness?: Second Circuit Finds Hearsay Declarants Not Covered By Jencks Act

18 U.S.C. Section 3500(b), part of the Jencks Act, provides that

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement (as hereinafter defined) of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified. If the entire contents of any such statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his examination and use.

Meanwhile, Federal Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

And, Federal Rule of Evidence 806 provides 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.

So, let's say that two defendants have several alleged co-conspirators. And let's say that that the prosecution does not plan to call these alleged co-conspirators as witnesses at trial but does plan to introduce their statements though other witnesses as co-conspirator admissions. Are the statements of these alleged co-conspirators covered by the Jencks Act because Rule 806 treats such declarants as witnesses? According to the recent opinion of the Second Circuit in United States v. Shyne, 2010 WL 3035519 (2nd Cir. 2010), the answer is "no."

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Identity Crisis: Oregon Court Admits Prior Crimes Evidence to Show Identity

The Court of Appeals of Oregon recently distinguished, for purposes of admitting evidence of prior crimes committed by a defendant, between the defenses of "The alleged crime never happened" and "You've charged the wrong person."  If a defendant asserts that the alleged crime never occurred, then evidence of similar prior acts by the defendant is inadmissible "propensity" evidence.  But if the defendant argues that someone other than the defendant did the deed, then evidence of the defendant's prior conduct may be admitted to prove "identity" of the perpetrator.

In State v. Pitt, --- P.3d ----, 2010 WL 3239406 (Or. App. Aug. 18, 2010), the prosecution charged Douglas Pitt with child molestation.  At trial, the jury heard "evidence of misconduct not charged in [the] indictment, including his earlier sexual abuse of the victim and her same-aged cousin."  The defendant appealed his conviction, arguing that the evidence was improperly admitted.  The appeals court affirmed, relying in part on the nature of Pitt's defense at trial.

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Completely Infeffective: Court Of Appeals Of Indiana Uses Rule Of Completeness To Reject Ineffective Assistance Of Counsel Claim

Like its federal counterpart, Indiana Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require at that time the introduction of any other part or any other writing or recorded statement which in fairness ought to be considered contemporaneously with it.

What this means is this whenever a party introduces part of a writing or recorded statement that helps his case, there will usually be another part of that writing/recorded statement or another writing/recorded statement that hurts his case. And what this means is that a party will likely be unable to prove a claim of ineffective assistance of counsel when his trial attorney fails to introduce a writing/recorded statement that is both helpful and hurtful to his case, which is what happened in the recent opinion of the Court of Appeals of Indiana in Chenoweth v. State, 2010 WL 3011960 (Ind.App. 2010).

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Domestic Abuse Exception Allows Prior Bad Acts Evidence Into Minnesota Court

Minnesota Rule of Evidence 404(b) restricts the admission of evidence concerning a party's prior bad acts.  The rule is similar to Federal Rule of Evidence 404(b).  In State v. Barnslater, --- N.W.2d ----, 2010 WL 3220020 (Minn. App. Aug. 17, 2010), the Minnesota Court of Appeals illustrated the importance of an exception to Rule 404 that applies to evidence of prior domestic abuse.

William Barnslater, convicted of "engaging in a pattern of harassing conduct" and of violating an order of protection concerning his former romantic partner (whose name is abbreviated in the opinion as "J.B."), argued on appeal that the trial court wrongly allowed the victim to testify about Barnslater's prior abuse of her and of her adult daughter.  In one incident described at trial, "Barnslater pushed J.B. to the floor, grabbed J.B.‘s daughter by the throat, and held J.B.‘s daughter so that her feet dangled above the floor. Based on this episode, Barnslater was convicted of fifth-degree domestic assault."  Barnslater, at 2-3 [pin cites refer to PDF of opinion].

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Social Network: Court Of Appeals Of Ohio Finds Statement To Social Worker Covered By Rule 803(4)

Like its federal counterpart, Ohio Rule of Evidence 803(4) 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.

So, does the exception only cover a statement made to a medical professional (or a statement made to a person with the intention that it be passed along to a medical professional), or does it also cover a statement made to a social worker? Most courts have found that Rule 803(4) covers statements made to social workers, which is what the Court of Appeals of Ohio, Ninth District, found in its recent opinion in State v. Evans, 2010 WL 2990871 (Ohio App. 9 Dist. 2010).

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Permanent Record: Middle School Fight Presented to Jury in Trial about Killing Committed Years Later

On July 2, 2005, Peter McGuane and Daniel McGuane, twin brothers, encountered Kelly Proctor, whom they disliked.  Like the twins, Proctor lived in Ayer, Massachusetts and was attending the town's Independence Day fireworks display.  After a verbal argument arose over a seemingly trivial matter, Peter slapped Proctor's face, whereupon Peter and Daniel beat Proctor to death despite the efforts of Proctor's girlfriend and another bystander to stop the beating.  Several witnesses said the twins, who are both over 6 feet tall, repeatedly kicked and beat Proctor, who was 5 foot 8, in the head as he lay on the ground.  Prosecutors charged the twins with manslaughter.

At trial, the McGuanes offered multiple theories of the case, suggesting that (1) Daniel's participation was justified as defense of another (i.e., Peter) and (2) Proctor's death was an accident.  See Com. v. McGuane, --- N.E.2d ----, 2010 WL 3171011 (Mass. Ct. App. Aug. 13, 2010); Mary E. Arata, "McGuane twins lose appeal of conviction," Nashoba Pub. Online (Aug. 13, 2010).  In addition, they objected based on Massachusetts Rule 404 to admission of evidence concerning prior bad acts.

The prosecution presented evidence of a middle school incident in which "Daniel grabbed the handle bars of a bike the victim was riding, and slapped him in the face" as well as "instances when the victim and the defendants 'trash talked' to each other, and the defendants called the victim a 'bitch.'"  McGuane, at *1 [pin cites are to the Westlaw pagination].

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My New Article -- Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence That They Rejected Favorable Plea Bargains

Today, I posted my new article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains, on SSRN. Here is the abstract:

Federal Rule of Evidence 410 deems inadmissible statements made during plea discussions when offered “against the defendant who made the plea or was a participant in plea discussions….” Pursuant to the Supreme Court’s opinion in United States v. Mezzanatto, however, prosecutors can, and often do, force defendants to waive the protections of this Rule to get to the plea bargaining table. Conversely, courts categorically have found that defendants cannot present evidence that they rejected favorable plea bargains, despite the plain language of the Rule not precluding the admission of such evidence.

This article addresses the question of whether courts can consistently allow prosecutors to present defendants’ incriminatory statements made during plea discussions while precluding those same defendants from presenting evidence that they rejected favorable plea bargains. It concludes that courts cannot prevent defendants from presenting evidence that they rejected favorable plea bargains based upon Mezzanatto and that none of the arguments against admissibility hold water.  

-CM

Indiana Appeals Court to Psychologist: An Expert has an M.D., Unlike Thee

In a negligence action, plaintiff John Richmond alleged that he suffered back injuries and traumatic brain injury ("TBI") from a 2004 car accident.  To prove his claims concerning the TBI, he offered testimony from Sheridan McCabe, Ph.D., a psychologist who examined Richmond in 2006.  McCabe opined that (1) Richmond exhibits symptoms consistent with TBI, (2) Richmond did not exhibit such symptoms before the car accident, and (3) "it is my opinion that Mr. Richmond experienced a traumatic brain injury in the accident."  Bennett v. Richmond, --- N.E.2d ---, 2010 WL 3196193, at 3 (Ind. Ct. App. Aug. 13, 2010) [pin cites refer to opinion PDF].

The defendants (the driver of the truck that rear-ended Richmond and the company that employed the driver) appealed, arguing that McCabe's testimony should have been excluded by Indiana Rule of Evidence 702.  Distinguishing McCabe from medical doctors and others with "education or training relevant to determining the etiology of brain injuries," the court held that while McCabe could potentially testify about Richmond's medical condition (that is, his symptoms), "Dr. McCabe has not demonstrated that he is qualified to opine on causation in this case."  Bennett, at 8.  Concluding that absent evidence demonstrating that the accident was a but-for cause of Richmond's TBI, testimony about his symptoms was not relevant and therefore was inadmissible under Evidence Rule 402 ("Evidence which is not relevant is not admissible.").  Id. at 12.

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