EvidenceProf Blog

Michigan v. Bryant, Part 3

My prior post on Michigan v. Bryant dealt with two aspects of the Court's opinion.  It noted that under the opinion, the Court (1) adopted an objective test for determining whether statements are "testimonial" for Confrontation Clause purposes; and (2) concluded that this test should focus upon the statements and actions of both the interrogator and the declarant.

This post focuses upon three more important aspects of the Court's opinion and how the Court decided that Covington's statements were non-testimonial.

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Michigan v. Bryant, Part 2

As noted in my prior post, the Supreme Court decided Michigan v. Bryant today. You can review the full facts of the case in the Court's opinion, but the basics are that police found Anthony Covington in a gas station parking lot, with Covington claiming that he had (1) been shot by Richard Bryant outside Bryant's house, and then (2) driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial. After Bryant was convicted, he appealed, claiming that the introduction of Covington's statements violated the Confrontation Clause, and the Supreme Court of Michigan agreed with him.

As I have previously noted,

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." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose  of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

In Michigan v. Bryant, the United States Supreme Court had to decide whether Covington's statements were testimonial or nontestimonial under this "primary" purpose test. Finding that they were nontestimonial, the Court reversed the opinion of the Supreme Court of Michigan and found no Confrontation Clause violation. Why, and what does the Court's opinion tell us about the Confrontation Clause going forward? Below is part one of my analysis. I wil post part two this afternoon after teaching a morning class.

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Supreme Court Issues Opinion In Michigan v. Bryant

Today, the Supreme Court issued its opinion in Michigan v. Bryant, its latest Confrontation Clause decision in the wake of Crawford v. Washington. Here is the start of the syllabus for the opinion:

Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant’s house and had then driven himself to the lot. At trial, which occurred before Crawford v. Washington, 541 U. S. 36, and Davis v. Washington, 547 U. S. 813, were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment’s Confrontation Clause, as explained in Crawford and Davis, rendered Covington’s statements inadmissible testimonial hearsay.

Held: Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because theyhad a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant's trial did not violate the Confrontation Clause.

I will have more analysis later in the day. Hat tip to my colleague Tim O'Neill for the link

-CM

Conspiracy Theory: Court Of Appeals Of Arizona Finds Statement "After" Burglary Qualified As Co-Conspirator Admission

Like its federal counterpart, Arizona 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.

So, let's say that a defendant is charged with burglary, and the prosecution calls one of his co-conspirators as a cooperating witness to testify that after the burglary another co-conspirator "made a comment...that the homeowners were inside the closet praying." Is this a statement made during the course of an in furtherance of the conspiracy to burglarize the house? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Martinez, 2011 WL 662434 (Ariz.App. Div. 1 2011), the answer is "yes."

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Silence, Please!: Court Of Appeals Of Wisconsin Finds Court Can Preclude Attorney From Sharing Prior Testimony With Future Witnesses

Wisconsin Stat. Section 905.15(3) provides that

The judge or circuit court commissioner may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended. 

But does this Section give courts the power to prevent an attorney from discussing with a nonparty witness the testimony of other witnesses? According to the recent opinion of the Court of Appeals of Wisconsin in State v. Copeland, 2011 WL 659381 (Wis.App. 2011), the answer is "yes."

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Without Limits: Court Of Appeals Of Indiana Finds No Problem With Limiting Instruction Given Before Introduction Of Evidence

Like its federal counterpart, Indiana Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.

But can a party only ask for a limiting instruction under Rule 105 only after the opposing party has introduced evidence admissible for one purpose but inadmissible for another, or can it ask for, and receive, such an instruction before such evidence is introduced? According to the recent opinion of the Court of Appeals of Indiana in State v. Velasquez, 2011 WL 601216 (Ind.App. 2011), the answer is that there is no need to wait.

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Hitting On The Moonshine: Court of Appeals Of Kentucky Finds Evidence Defendant Drank Moonshine Inadmissible Under Rule 403

Like its federal counterpart, Kentucky Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

So, assume that a plaintiff sues a defendant for assault and seeks to present evidence that the defendant admitted to drinking "moonshine" before the alleged assault. Should the plaintiff be able to present evidence relating to the defendant's ingestion of "moonshine," or should the trial court exclude such evidence under Rule 403? According to the recent opinion of the Court of Appeals of Kentucky in Wilkerson v. Williams, 2011 WL 559218 (Ky.App. 2011), there was no problem with the trial court excluding such evidence. I disagree.

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Take Good Care Of My Baby: Court Of Appeals Of Kentucky Deems Will Related Statements Inadmissible Under Rule 803(3)

Like its federal counterpart, Kentucky Rule of Evidence 803(3) provides an exception to the rule against hearsay for 

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

So, let's say that after executing a will, the testator tells (1) a friend how he had taken care of his wife and how she had always taken care of him; and (2) his reverend that his wife would be taken care of. Are these statements admissible under Rule 803(3)? According to the recent opinion of the Court of Appeals of Kentucky in Kemper v. Kemper, 2011 WL 557708 (Ky.App. 2011), the answer is "no." I disagree.

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The Hole Dang Thing: Supreme Court Of Rhode Island Finds Calling Of Defendant By Nickname Not Hearsay

Like its federal counterpart, Rhode Island Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

So, let's say that an eyewitness to a crime testifies that a man with the nickname "Dang" committed a crime. Can the prosecution call a witness to testify that people use that nickname to refer to the defendant charged with the crime. Is the use of that nickname hearsay? According to the recent opinion of the Supreme Court of Rhode Island in State v. Johnson, 2011 WL 576082 (R.I. 2011), the answer is "no."

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Thanks For The Opportunity: Court Of Appeals Of Ohio Finds Deficient Cross-Examination Doesn't Preclude Application Of Rule 804(b)(1)

Similar to its federal counterpart, Ohio Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given at a preliminary hearing must satisfy the right to confrontation and exhibit indicia of reliability.

So, let's say that a witness for the prosecution testifies at a preliminary hearing, and the prosecution seeks to present that testimony at trial without having that witness testify again. Will the fact that defense counsel engaged in a deficient cross-examination of that witness present the testimony from being introduced under this "former testimony" exception. According to the recent opinion of the Court of Appeals of Ohio, Tenth District, in State v. Sidibeh, 2011 WL 553140 (Ohio App. 10 Dist. 2011), the answer is "no" because Rule 804(b)(1) only requires the opportunity and similar motive to develop the testimony.

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¿Hablas Español?: Supreme Court Of Indiana Finds No Problem With Admission Of Translation Under Best Evidence Rule

Like its federal counterpart, Indiana Rule of Evidence 1002, its Best Evidence Rule, provides in relevant part that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute. 

So, let's say that a confidential informant surreptitiously records Spanish-language drug deals between the defendant and himself. Can the prosecution admit English language translations of these recordings without introducing the original recordings at trial? According to the recent opinion of the Supreme Court of Indiana in Romo v. State, 2011 WL 446285 (Ind. 2011), the answer is "yes"...sort of.

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Dead Cert: Supreme Court Of Mississippi Finds Death Certificate Listing Time Of Death Admissible Under Rule 803(9)

Like its federal counterpart, Mississippi Rule of Evidence 803(9) provides an exception to the rule against hearsay for

Records or data compilations of vital statistics, in any form, if the report thereof was made to a public officer pursuant to requirements of law.

The recent opinion of the Supreme Court of Mississippi in Birkhead v. State, 2011 WL 539056 (Miss. 2011), gives me my first chance to address either version of Rule 803(9) and how the Rule differs from the common law in at least some states.

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Follow The Leader: Ninth Circuit Finds Statements Of Customer Confusion Admissible Under State Of Mind Exception To Rule Against Hearsay

Customers call a company complaining that they were confused because they visited what they thought was the company's website but could not find any information about the company. It turns out that an "Internet entrepreneur" acquired a domain name with the company's name and created a website that consisted only of a few lines of code redirecting visitors to a different website with search result links, including links to the company's competitors. The company sues the individual, claiming that he violated the Lanham Act, the Anticybersquatting Consumer Protection Act, a consumer protection act, and common law. Should the company be able to present evidence about the customer complaints that they received? According to the recent opinion of the Ninth Circuit in Lahoti v. Vericheck, Inc., 2011 WL 540541 (9th Cir. 2011), the answer is "yes."

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10 Years Have Got Behind You: Court of Appeals Of North Carolina Finds No Error With Admission Of Conviction Under Rule 609(b)

Like its federal counterpart, North Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 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.

As Rule 609(b) and the recent opinion of the Court of Appeals of North Carolina in State v. Bortone, 2011 WL 532136 (N.C.App. 2011), make clear this ten-year rule is based upon the date of conviction or the date of release, whichever is the later date.

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(Un)Masked and Anonymous: Supreme Court Of Arizona Finds Anonymous Call Admissible Under Rule 804(b)(3)

Similar to its federal counterpart, Arizona Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

As I have previously noted on this blog, courts typically have found that anonymous statements cannot qualify as statements against interest under Rule 804(b)(3). The recent opinion of the Supreme Court of Arizona is Arizona v. Machado, 2011 WL 519752 (Ariz. 2011), is an exception to this general practice.

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D.C. Cab: DDC Denies Motion For Pretrial Hearing On Admissibility Of Co-Conspirator Admissions In Cab Corruption Case

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.

So, let's say that the prosecution wants to admit alleged co-conspirator admissions against a defendant. Should the court allow the prosecution to introduce these alleged admissions only after it establishes that the declarant was a co-conspirator of the defendant and that the statements were made during the course and in furtherance of the conspiracy? Or should the prosecution be able to introduce these alleged admissions contingent upon its subsequent introduction of evidence sufficient to satisfy the Rule's requirements, with the court declaring a mistrial or instructing the jury to disregard the statements if such evidence is not presented? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Loza, 2011 WL 340290 (D.D.C. 2011), the answer is "no." I disagree, at least in cases in which the court only instructs the jury after it determines the the alleged admissions are inadmissible.

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Blue Valentine: Court Of Appeals Of Mississippi Finds Rule 408 Doesn't Cover Divorce Property Settlement Agreement

Similar to its federal counterpart, Mississippi Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

But does Rule 408 preclude the admission of a property settlement agreement in a divorce agreement? According to the recent opinion of the Court of Appeals of Mississippi in Wilson v. Wilson, 2011 WL 386814 (Miss.App. 2011), the answer is "no."

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The Sound Of Silence: Court Of Appeals of Iowa Precludes Jury Impeachment After Jury Finds Guilt Based On Defendant's Choice Not To Testify

Similar to its federal counterpart, Iowa Rule of Evidence 5.606(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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

So, let's say that a defendant exercises his Fifth Amendment right not to testify at trial, and jurors improperly use his failure to testify as evidence of his guilt. Can this jury misconduct form the proper predicate for jury impeachment under Rule 5.606(b)? According to the recent opinion of the Court of Appeals of Iowa in State v. Blair, 2011 WL 441968 (Iowa.App. 2011), the answer is "no."

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Self Preservation Instinct: Washington Court Finds Luce Doctrine Applies To Rule 404(b) Evidence

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. But what about if the trial court determines that character evidence will be admissible in the event that a defendant testifies at trial and raises a certain defense. Does the defendant need to so testify to preserve that issue for appeal? According to the recent opinion of the Court of Appeals of Washington, Division 2, in State v. Phillips, 2011 WL 396479 (Wash.App. Div.2 2011), the answer is "yes."

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Not A Helping Hand: DDC Refuses To Appoint Expert To Help Party Under Rule 706(a)

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

And, as the recent opinion of the United States District Court for the District of Columbia in Carranza v. Fraas, 2011 WL 380164 (D.D.C. 2011), makes clear, judges uses Rule 706(a) to help themselves gain a better understanding of complex issues at trial, not to assist one of the litigating parties.

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