EvidenceProf Blog

EvidenceProf Blog's 4th Annual Halloween Movie Pick: Robert Siodmak's "The Spiral Staircase"

It's Halloween again, which means that it's time for EvidenceProf's Blog's fourth annual Halloween movie pick (after "The Gift," "Homecoming," and "Henry: Portrait of a Serial Killer"). For this year's pick, I'm once again digging into the archives from my days reviewing DVDs and pulling out a review. This one is of Robert Siodmak's "The Spiral Staircase." Siodmak is probably best known for 1946's noir classic "The Killers," which earned him an Oscar nomination for Best Direction, but 1945's "The Spiral Staircase" is also worth a watch on a dark and stormy night. 

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Come Be My Conspiracy: Eleventh Circuit Finds Co-Conspirator Admission Rule Applies Against Late Arriving Co-Conspirators

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

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

But is one co-conspirator's admission admissible against another co-conspirator who had not yet joined the conspiracy at the time that the admission was made? According to the recent opinion of the Eleventh Circuit in United States v. Makarenkov, 2010 WL 4204637 (11th Cir. 2010), the answer is "yes."

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"The Wharton Brand": Eastern District Of Pennsylvania Finds Subsequent Remedial Measures Rule Applies To Breach Of Contract Actions In Action Against Penn

Federal Rule of Evidence 407 provides that

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

Back in September 2009, I posted an entry about the Court of Appeals of Wisconsin finding that Wisconsin's counterpart to Rule 407 did not apply to criminal cases. I disagreed with this conclusion, and I think that the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Reynolds v. University of Pennsylvania, 2010 WL 4187935 (E.D.Pa. 2010), which found that Rule 407 applies to breach of contract actions, exposed the flaw in the reasoning of the Court of Appeals of Wisconsin.

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Article of Interest: Josephine Ross' Blaming the Victim: 'Consent' Within the Fourth Amendment and Rape Law

It used to be that courts applied an objective definition of consent in rape prosecutions. This was because of traditional force and resistance requirements:  

First, courts interpreted the element of force to require that the man overpower the woman or threaten her with death or physical injury. If a woman submitted to subtle forms of coercion, the law would view her submission as consent. Second, common law courts required rape victims to resist unwelcome advances "to the utmost."

As a result, "[i]nstead of crediting the victim's perspective,...court[s] turned the question of consent into a normative question about the quantity and quality of force used by the aggressor." Feminists, however, have been largely successful in getting courts and legislatures to eliminate or relax force and resistance requirements, leading to an increased focus on the alleged victim's subjective state of mind and an increased recognition of individual autonomy as the primary purpose of prohibiting sexual assault.

The converse, however, has occurred with regard to consent in the Fourth Amendment context.

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That's Settled: Eastern District Of Missouri Finds Documents Compiled During Settlement Negotiations Not Covered by Rule 408

Federal Rule of Evidence 408 provides:

(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.

Moreover, it is well established that Rule 408 covers not only statements made during settlement negotiations but also documents prepared for settlement negotiations. As the recent opinion of the United States District Court for the Eastern District of Missouri in Goodman Distribution, Inc. v. Haaf, 2010 WL 4117379 (E.D.Mo. 2010), makes clear, however, the Rule does not cover all documents prepared (or compiled or collected) during settlement negotiations.

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Avoiding A Confrontation?: Does The Bruton Doctrine Cover Nontestimonial Hearsay After Crawford?

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that, at a joint trial, a defendant's Sixth Amendment right of confrontation is violated by admitting the confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. In other words, if Carl confesses to Police Officer Peters, "Dan and I robbed the bank," Carl's confession is inadmissible at the joint trial of Carl and Dan for bank robbery unless Carl takes the witness stand. According to the Court, this is not because the introduction of Carl's confession literally would violate Dan's right "to be confronted with the witnesses against him...." 

Instead, the Court correctly noted that a confession such as Carl's confession is technically only admissible against him, which is why a court arguably could admit Carl's confession along with a limiting instruction telling jurors to ignore the confession in determining Dan's guilt or innocence. See Bruton, 391 U.S. at 128 n.3 ("We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence,...the problem arising only because the statement was...admissible against the declarant."). The Court concluded, though, that there was a substantial threat that the jury would ignore such a limiting instruction and use the codefendant's confession as evidence of the other defendant's guilt, which is why such confessions are inadmissible unless the codefendant testifies.

This point is driven home by the fact that a "myriad [of] Courts of Appeals...have recognized that the rule and rationale of Bruton do not apply to bench trials." Johnson v. Tennis, 549 F.3d 296, 300 (3rd Cir. 2008). If Carl's confession literally violated Dan's right to be confronted with the witnesses against him, it would violate this right at both a jury trial and a bench trial.  But as noted, Carl's confession is not really admitted against Dan, and courts presume that judges are able to use Carl's confession solely as evidence of his guilt and not as evidence of Dan's guilt, which is why they don't apply Bruton to bench trials. See id.

Based upon this analysis, I don't think that the Supreme Court's landmark decision in Crawford v. Washington, 541 U.S. 36 (2004), had any impact on the Bruton doctrine. Almost every court, however, seems to disagree.

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Your Friends & Neighbors: Court Of Appeals Of Michigan Finds Statements Of Abuse To Neighbors Are Not Testimonial

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." So, does is a statement by an alleged victim to her neighbor about an act of abuse committed against her "testimonial" and possibly violative of the Confrontation Clause? According to the recent opinion of the Court of Appeals of Michigan in People v. Stenberg, 2010 WL 3984639 (Mich.App. 2010), the answer is "no."

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Land Of Confusion: Massachusetts Court's Ruling On Prior Inconsistent Statement Reveals Problems With State's Lack Of Rules Of Evidence

With the Supreme Court of Illinois recently approving and promulgating Illinois Rules of Evidence, Massachusetts remains one of the few states without codified rules of evidence. In June 2006, the Supreme Judicial Court of Massachusetts did create the Advisory Committee on Massachusetts Evidence Law to prepare a Guide to the Massachusetts law of evidence. And while the Committee did create such a Guide listing Proposed Massachusetts Rules of Evidence, those Proposed Rules were never adopted, and they have been removed from the public eye at the request of the Committee. The result? Cases like Commonwealth v. Belmer, 1210 WL 2, in which the Appeals Court of Massachusetts revealed the tortured history of the rule regarding prior inconsistent statements in Massachusetts.

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Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Prosecution's Impeachment Of Own Witness Was Proper

Like its federal counterpart, North Carolina Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him. Rules such as North Carolina Rule of Evidence 607 were designed to replace the common law voucher rule, which held that a party, in effect, vouched for the credibility of the witnesses it called, meaning that it could not impeach them. A party, however, cannot call a witness for the sole or primary purpose of impeaching a witness, such as when a party calls a witness who it knows will not provide helpful testimony at trial so that the party can impeach the witness with a prior inconsistent statement that it helpful to the party. But how is a court supposed to decide when a party legitimately impeaches its own witness and when a party is using Rule 607 as a subterfuge for putting otherwise inadmissible hearsay before the jury? This was the question addressed by the recent opinion of the Court of Appeals of North Carolina in State v. Gabriel, 2010 WL 4068684 (N.C.App. 2010).

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Heightened Everything?: Why The Fifth Circuit's "Heightened" Abuse Of Discretion Standard In Criminal Cases Isn't Really Heightened

Templeton argues that the district court abused its discretion when it admitted evidence of his prior cocaine trafficking and his 2004 arrest for cocaine possession. We review the admission of evidence under Federal Rule of Evidence 404(b) under a "heightened" abuse of discretion standard. "Evidence in criminal trials must be strictly relevant to the particular offense charged." United States v. Templeton, 2010 WL 4026122 (5th Cir. 2010).

So, what exactly does this mean? Is this "heightened" abuse of discretion standard different than the (regular) abuse of discretion standard used in civil cases? After my review of case law, my conclusion is that the answer is "no." 

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Proper Proffer?: Third Circuit Finds No Problem With Proffer Statement Waiving Defendant's Right To Kastigar Hearing

In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that the Fifth Amendment does not require a grant of transactional immunity before a witness' testimony can be compelled; instead, a grant of use and derivative use testimony is coextensive with the privilege against self-incrimination. Conversely, the Court held that a mere grant of use immunity alone is not coextensive with the privilege. Thus, if the government decides to prosecute a witness who testified under an immunity agreement, the court will hold a Kastigar hearing to determine whether the prosecution is properly based upon independent evidence or whether it is improperly based upon evidence derived from the witness' testimony. 

Meanwhile, Federal Rule of Evidence 410(4) indicates that

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

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

So, can the prosecutor force the defendant and his attorney to sign the following statement to get to the plea bargaining table?:

[T]he government may make derivative use of, and may pursue investigative leads suggested by, statements made or information provided by you or your client. That is:

[a] your client waves any right to challenge such derivative use and agrees that such use is proper; and

[b] your client agrees that Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 do not govern such derivative use.

This provision eliminates the necessity of a Kastigar hearing at which the government would have to prove that its evidence at trial or other legal proceeding is untainted by statements made or information provided during the “off-the-record” proffer.

According to the recent opinion of the Third Circuit in United States v. Merz, 2010 WL 3965856 (3rd Cir. 2010), the answer is "yes."

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Arm Of The Judiciary: New Jersey Appellate Court Finds Judge's Clarification About Translations Didn't Violate Rule 605

A defendant is charged with armed robbery and related offenses. At trial, a Spanish speaking employee of the store that the defendant allegedly robbed testified through two interpreters that the defendant robbed the store. Thereafter, defense counsel impeaches the employee-witness through testimony that the witness gave during a pretrial hearing, during which he referred to the incident as an "asulto," which a different interpreter translated as an assault. During a lunch recess, the two trial interpreters approach the judge in his chambers and tell him that "asulto," has two meanings, assault and robbery. Over defense counsel's objection, the judge thereafter instructs the jury that the trial interpreters told him about the two meanings of "asulto." Has the judge committed error? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Baylor, 2010 WL 4028585 (N.J.Super.A.D. 2010), the answer is "no." I agree.

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Discovery Channel: Eastern District Of California Notes That Rules Of Evidence Don't Govern Discovery

Federal Rule of Evidence 407 provides that

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

So, what happens if a party seeks information relating to the opposing party's subsequent remedial measure(s) during discovery? Does the opposing party have to respond to such a discovery request? Well, as the recent opinion of the United States District Court for the Eastern District of California in Bernat v. City of California, 2010 WL 4008361 (E.D. Cal. 2010), makes clear, the answer is likely "yes" because the Federal Rules of Evidence merely govern the admissibility of evidence and do not control pretrial discovery.

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This Can('t) Be My Testimony: Supreme Court Of Vermont Finds Judicial "Testimony" Automatically Requires New Trial

Like its federal counterpart, Vermont Rule of Evidence 605 provides that "[a] judge sitting at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Moreover, it is well established that Rule 605 applies not only to statements formally given from the witness stand but also, inter alia, to judges engaging in off-the-record fact gathering. So, when a trial judge violates Rule 605 by engaging in such fact gathering, can an appellate judge deem this violation harmless error? According to the recent opinion of the Supreme Court of Vermont in State v. Gokey, 2010 WL 3934332 (Vt. 2010), the answer is "no."

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Darlin' Don't Refrain: Sixth Circuit Finds No Problem With Improperly Timed Admission Of Prior Consistent Statements

Federal Rule of Evidence 801(d)(1)(B) provides that

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

So, what happens if a party introduces a witness' alleged prior consistent statement before the opposing party charges the witness with recent fabrication or improper influence or motive, but the opposing party does later levy such a charge against the witness? That was the question addressed by the recent opinion of the Sixth Circuit in United States v. Wells, 2010 WL 3958647 (6th Cir. 2010).

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I'll Be The Judge Of That: New Jersey Court Finds No Problem With Lengthy Judicial Interrogation Of Pro Se Defendant

Under New Jersey Rule of Evidence 614, "The judge, in accordance with law and subject to the right of a party to make timely objection, may call a witness and may interrogate any witness." In exercising this authority to interrogate witnesses, however, the judge must be sure to maintain his judicial neutrality and not assume the role of an advocate for either party. In its recent opinion in K.C. v. J.K., 2010 WL 4007554 (N.J.Super.A.D. 2010), the New Jersey Superior Court, Appellate Division, found that a trial judge properly exercised his authority under Rule 614 during his interrogation of a pro se defendant. If the defendant's allegations are true, I disagree.

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The Accident Experiment: Court Refuses To Grant New Trial Despite Juror Performing Accident Scene "Experiment" In Car Crash Case

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 that there is a civil action and a trial based upon a car accident at a certain intersection. And let's say that a juror goes to the scene of the car accident and conducts an "experiment" related to the accident. The jury, however, does not discuss the experiment during deliberations. After the verdict is granted, if this experiment is exposed, should a new trial be granted? According to the recent opinion of the United States District Court for the Eastern District of Texas in Swanson v. Roehl Transport, Inc., 2010 WL 3702589 (E.D. Tex. 2010), the answer is "no." I disagree. 

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Not Accounting For Externalities: Court Of Appeals Of North Carolina Finds Dictionary Definitions Are Not External Information Under Rule 606(b)

Like its federal counterpart, North Carolina 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

And, as I have previously noted,

Some courts have held that jurors' use of a dictionary to define the elements of a crime or words in jury instruction does not constitute the use of extraneous prejudicial information because their use of the dictionary is for the purpose of defining a legal term rather and does not relate to "facts under deliberation." See, e.g., United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988).  Other courts have held that jurors' use of a dictionary is not inherently prejudicial but have noted that in rare cases such use can require a new trial.  See, e.g., United States v. Henley, 28 F.3d 1111, 1115-16 (9th Cir. 2001).  Finally, some courts have found that it's quite possible that jurors' use of a dictionary can require a new trial, especially when jurors use the dictionary to define legal terms. See, e.g., Sharrief v. Gerlach, 798 So.2d 646, 652 (Ala. 2001).

As the recent opinion of the Court of Appeals of North Carolina in State v. Patino, 2010 WL 3860847 (N.C.App. 2010), makes clear, North Carolina courts (kind of) fall under the first category of courts.

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My Memory Is Failing Me: California Court Finds Right To Confrontation Preserved Despite "Forgetful" Witness

California Evidence Code Section 240(a)(3) states that

Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

And the consequence of a declarant being unavailable as a witness is that certain hearsay statements are admissible under certain exceptions to the rule against hearsay. So, let's say that a declarant takes the witness stand at a criminal defendant's trial and testifies to memory loss. That declarant will be deemed "unavailable" under Section 240(a)(3), potentially allowing for the admission of some of his prior hearsay statements. But does the admission of such statements violate the defendant's rights under the Confrontation Clause? According to the recent opinion of the Court of Appeal, First District, Division 1, California, in In re T.G., 2010 WL 3898052 (Cal.App. 1 Dist. 2010), the answer is "no." As a general proposition, I agree, but I disagree with the court's conclusion in the case before it. 

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Double Take: "The Good Wife" Gets Military Double Jeopardy Issue Right Based On "Dual Sovereignty" Doctrine

Last week's episode of "The Good Wife" was pretty interesting. At the start of the episode, Alicia and Will secure a "not guilty" verdict in Illinois state court for an Army reservist charged with murdering his wife. The reservist is then charged with the same crime in military court, with viewers given the explanation that double jeopardy does not apply. So, did the show get it right? It turns out that the answer is "yes" based upon the "dual sovereignty" doctrine. If you want a full explanation of the doctrine (and a fascinating theory of how it should apply in the international legal context), you should check out the excellent article by SMU Dedman School of Law Professor Anthony J. Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, 86 Wash. U. L. Rev. 769 (2009). Here, however, are the basics:

The doctrine "is founded on the...conception of crime as an offense against the sovereignty of the government." It holds that "[w]hen a defendant in a single act violates the (peace and dignity) of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.'" No violation of the prohibition on double jeopardy results from successive prosecutions by different sovereigns, according to the Court, because "by one act [the defendant] has committed two offences, for each of which he is justly punishable." The defendant, in other words, is not being prosecuted twice for the same "offence" if another sovereign successively prosecutes for the same act--even if the second sovereign prosecutes using a law identical to that used in the first prosecution.

So, what does this all mean with regard to the situation in "The Good Wife,"  and why did the show get it right? 

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