EvidenceProf Blog

Jurors Behaving Badly: Supreme Court Of Louisiana Addresses Odd Claim Of Jury Misconduct

Similar to its federal counterpart, Louisiana 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 any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury's attention.  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.

Usually, a non-juror is the source of extraneous prejudicial information. As the recent opinion of the Supreme Court of Louisiana in State v. Ingram, 2011 WL 10885566 (La. 2011), makes clear, however, in exceptional circumstances, jurors themselves may be the source of extraneous prejudicial outside information.

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High-Tech View, Take 2: Some Footage Of VR Simulation Evidence In Action

On Tuesday, I posted an entry about the interesting new article, High-Tech View: The Use of Immersive Virtual Environments in Jury Trials, 93 Marq. L. Rev. 1073 (2010), by Carrie Leonetti, an Assistant Professor at the University of Oregon School of Law, and Jeremy Bailenson, an Associate Professor of Communication at Stanford University. Professor Bailenson has now sent me this useful link to a news story showing some footage from the use of VR simulation evidence at the annual "tech trial" put on by Professor Fred Lederer at the William and Mary Law School. If memory serves me, this was from the 2002 tech trial put on by Courtroom 21, and I drafted the motion in limine regarding the admissibility of the VR evidence as I was then a student of Professor Lederer in his Legal Technology class. You can access the footage by clicking on this link.

-CM

18 And Life: 9th Circuit Finds No Problem In Precluding Impeachment Via 18 Year-Old False Statement Conviction

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.

From my research in the area, it seems that courts tend to admit convictions under Rule 609(b) only if (1) they are for crimes of dishonesty or false statement, and (2) they occurred not that much more than ten years before the present trial. In United States v. Swift, 2011 WL 1097756 (9th Cir. 2011), the appellant satisfied the first of these requirements, but not the second.

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Article Of Interest: Carrie Leonetti & Jeremy Bailenson's High-Tech View: The Use of Immersive Virtual Environments in Jury Trials

Last year, I posted an entry about Andrew M. Perlman's The Legal Ethics of Metadata Mining, in which Professor Perlman concluded that "[t]he best approach to metadata mining is to analogize it to the review of inadvertently disclosed documents more generally [because] [t]he two issues are conceptually indistinguishable." I agreed with Professor Perlman's analysis of the issue and found that courts should should similarly analogize compelled forensic imaging to the compelled disclosure of documents covered by attorney-client privilege when the adverse party claims that they are subject to the crime-fraud exception.

In their recent article, High-Tech View: The Use of Immersive Virtual Environments in Jury Trials, 93 Marq. L. Rev. 1073 (2010), Carrie Leonetti, an Assistant Professor at the University of Oregon School of Law, and Jeremy Bailenson, an Associate Professor of Communication at Stanford University, make a similar argument with regard to immersive-virtual environment (IVE) evidence. Specifically, they claim that IVE evidence is analogous to other representative media and should be treated the same as its predecessors. As the authors note: 

The portrayal of scene evidence has followed a somewhat linear progression: live viewing, drawings, black-and-white photographs, color photographs, video recording, and, now, VR simulation. There is no reason why IVE technology should be subjected to any different or more strenuous threshold for admissibility than any other representational medium representational medium.

Here's how they get there:

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Crime Scene Investigation: PA Court Affirms Robbery Convictions Despite Unauthorized Juror Crime Scene Visit

Similar to its federal counterpart, Pennsylvania Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict, including a sentencing verdict pursuant to 42 Pa.C.S.A. §  9711 (relating to capital sentencing proceedings), 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 in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

Under Rule 606(b), it is clear that a juror's unauthorized visit to the crime scene uncovers prejudicial facts not of the record (or extraneous prejudicial information. But should such a visit lead to a new trial? According to the recent opinion of the Superior Court of Pennsylvania in Commonwealth v. Pope, 2011 WL 480533 (Pa.Super. 2011), the answer is "no," at least if the layout of the crime scene was not a central issue at trial.

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Sign Here: 5th Circuit Finds District Court Improperly Excluded Signed Prior Inconsistent Statements

Federal Rule of Evidence 613 provides that witnesses can be impeached through prior inconsistent statements. Meanwhile, Federal Rule of Evidence 901(a) provides that 

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, let's say that a party wants to impeach a witness through an alleged prior inconsistent which was signed by the witness but which the witness claims is inaccurate. Has the prior statement been properly authenticated? According to the recent opinion of the Fifth Circuit in United States v. Isiwele, 2011 WL 768883 (5th Cir. 2011), the answer is "yes."

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Upon Request: D.C. Court Of Appeals Notes Request Required For Rule 615 Sequestration

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

D.C. does not have codified rules of evidence, but it has adopted Rule 615 in its case law. And, as the language of Rule 615 and the recent opinion of the D.C. Court of Appeals in Marshall v. United States, 2011 WL 1044594 (D.C. 2011) (Download Marshall), make clear Rule 615 is not self-executing but instead requires the request of a party.

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The Truth Of The Matter: Court Of Appeals Of Ohio Precludes Declarant Impeachment Under Rule 806

Like its federal counterpart, Ohio Rule of Evidence 806(A) provides that

When a hearsay statement, or a statement defined in Evid.R. 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 that would be admissible for those purposes if declarant had testified as a witness.

As Rule 806 and the recent opinion of the Court of Appeals of Ohio, Tenth District, in Columbus v. Montgomery, 2011 WL 983080 (Ohio App. 10 Dist. 2011), make clear, however, it only allows for the impeachment of a hearsay declarant, meaning that a party cannot impeach the credibility of a declarant whose statement is not being offered at trial to prove the truth of the matter asserted.

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Article Of Interest: Marc McAllister's The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence

A defendant is on trial. A prospective eyewitness does not want to testify against the defendant for fear of reprisal. But the witness might be willing to testify under one condition: He be allowed to testify while wearing a disguise. Should this witness be able to wear sunglasses, a hat, a wig, and/or some other disguise while on the witness stand, or would such a disguise violate the defendant's rights under the Confrontation Clause? Until 2004, this question was answered pursuant to the Supreme Court's opinion in Maryland v. Craig, 497 U.S. 836 (1990), which set forth a two-part test to govern potential exceptions to the Clause's face-to-face requirement. According to Craig, "a physical, face-to-face confrontation [may be dispensed with] at trial [1] only where denial of such confrontation is necessary to further an important public policy and [2] only where the reliability of the testimony is otherwise assured."

In Crawford v. Washington, 541 U.S. 36 (2004), however, the Supreme Court condemned judicial reliability assessments, concluding that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." So, did Crawford kill Craig? And, if it did, does that mean that courts can no longer allow witnesses to testify in disguise based upon judicial reliability assessments?

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What's The Definition Of Prejudice?: Supreme Court Of Mississippi Upholds Verdict Despite Jurors Consulting Dictionary

A defendant is charged with felony child abuse under Mississippi Code Section 97-5-39(2)(a), which states:

Any person who shall intentionally (I) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm shall be guilty of felony child abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years....

The defendant is not charged with child neglect, and the jury does not receive any instructions on child neglect. During deliberations, the jury sends a note to the trial judge with the following question: "Is negligence the same thing as abuse?" The trial court responds by sending a handwritten note to the jury that it "must rely on the Court's instructions on the law already given to you. Please continue your deliberations." After receiving the trial court's response, the jury continues deliberating for approximately half an hour and then returns a guilty verdict. After the verdict, a juror allegedly approaches the defendant's boyfriend and tells him that he and another juror had been confused about the definition of "neglect," so they had looked up the definition and had determined that "abuse" and "neglect" meant the same thing.  Based upon this determination, they allegedly determined that the defendant was guilty of child abuse. Is the defendant entitled to a new trial? According to the recent opinion of the Supreme Court of Mississippi in Rutland v. State, 2011 WL 907116 (Miss. 2011), the answer is "no." I disagree.

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Avoiding A Confrontation, Take 4: EDVA Opinion Makes Clear That Redacted Co-Participant Confessions Are Inadmissible At Solo Trials

Last week, I posted my new article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine. The article argues that courts have erred in finding that nontestimonial hearsay is beyond the scope of the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004), because Crawford is a test of Constitutional reliability while the Bruton doctrine is a test of Constitutional harmfulness. The converse of this is that even testimonial hearsay is admissible under the Bruton doctrine as long as it is not sufficiently harmful. Crawford held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Meanwhile, under the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a nontestifying co-defendant's confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence.

Pursuant to Richardson v. Marsh, 481 U.S. 200 (1987), however, co-defendant confessions that are redacted to remove any reference to other defendants are admissible despite the Bruton doctrine because they are not sufficiently harmful. And, as I note in my article, the Richardson rule applies even to testimonial co-defendant confessions. So, if Co-Defendant confesses to Police Officer, "Defendant and I robbed the bank," and Co-Defendant does not testify at his joint jury trial with Defendant, Police Officer could testify that Co-Defendant confessed, "I robbed the bank." Obviously, Co-Defendant's confession is testimonial, and ordinarily we would require confrontation as "the only indicium of reliability sufficient to satisfy constitutional demands...." The Bruton doctrine, however, does not care about reliability, which is why Co-Defendant's redacted confession would be admissible. 

But what if Co-Defendant and Defendant are tried separately? Or what if Co-Defendant dies before the joint trial, meaning that Defendant is tried by himself? Would the admission of Co-Defendant's redacted confession violate Crawford and the Confrontation Clause?  I didn't address such a case in my article, but as the opinion of the United States District Court for the Eastern District of Virginia in United States v. Jordan, 357 F.Supp.2d 889 (E.D.Va. 2005), makes clear, the answer is "yes." Why? Crawford is a test of Constitutional reliability, not a test of Constitutional harmfulness.

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Not My Recollection: Court Of Appeals Of Ohio Finds Writing Cannot Be Read Out Loud Under Rule 612

Like its federal counterpart, Ohio Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

And, like its federal counterpart, Ohio Rule of Evidence 612 allows an attorney to refresh the recollection of a forgetful witness with a writing. So, let's say that a witness made a statement to the police but then refuses to attest to its accuracy while testifying at trial. Can the prosecution read portions of the statement out loud and ask the witness whether she made the statements recorded in the statement consistent with either Rule 612 or Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Ninth District, in State v. Martin, 2011 WL 899553 (Ohio App. 9 Dist. 2011), such a procedure is improper under Rule 612 and possibly improper (and I would argue definitely improper) under Rule 803(5).

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Talk About The Life In Massachusetts: Court Precludes Jury Impeachment On Jury Violence, Failure To Report Deadlock

On June 9, 2005, six days after the verdict, a juror sent a letter to the judge suggesting that she and possibly two other jurors had been pressured into convicting the defendant despite having a reasonable doubt concerning the defendant's guilt. According to the juror, other jurors “lean[ed] across the table into our faces and insist[ed] on yelling at us, screaming, swearing, and throwing books and pens just because we [saw] some things differently.” After the other two holdouts changed their minds, the juror claimed that she was subjected to “8 hours of constant interrogation,” with jurors “constantly yelling at me and swearing and pointing finger[s] in my face across the table and telling me that I am crazy.” The letter further alleged that some jurors had made up their minds “from day 1 without listening to anything that was presented,” that some jurors convinced or intimidated others to change their votes outside the jury room, and that the foreperson at one point refused to send the judge a note saying that the jury were deadlocked and instead insisted that they continue deliberating.

Is this grounds for jury impeachment? According to the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Pytou Heang, 2011 WL 489926 (Mass. 2011), the answer is "no." Instead, "'[t]ension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations." I disagree.

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What's That Mean? 11th Circuit Finds Evidence Offered To Prove Meaning Of Settlement Agreement's Terms Admissible Despite Rule 408

Federal Rule of Evidence 408 provides that

(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.

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.

And, as the recent opinion of the Eleventh Circuit in Fisk Elec. Co. v. Solo Const. Corp., 2011 WL 891797 (11th Cir. 2011), makes clear, settlement agreements and related communications also may be admitted for the purpose of resolving a factual dispute about the meaning of the settlement agreements' terms.

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No One But The Bailiff: Supreme Court Of Nevada Finds Bailiff's Improper Behavior Insufficient To Award New Trial

Similar to Federal Rule of Evidence 606(b), N.R.S. 50.065(2) provides that

Upon an inquiry into the validity of a verdict or indictment:

(a) A juror shall not testify concerning the effect of anything upon the juror’s 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.(b) The affidavit or evidence of any statement by a juror indicating an effect of this kind is inadmissible for any purpose. 

While both of these rules preclude certain types of jury impeachment, neither rule would preclude a bailiff from testifying that he engaged in misconduct that might have prejudiced the jury. But whether that misconduct necessitates a new trial is a separate issue and one with which the Supreme Court of Nevada grappled in its recent opinion in Lamb v. State, 2011 WL 743193 (Nev. 2011).

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Article Of Interest: Katharine Traylor Schaffzin's Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence

In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court decided not to overrule Miranda v. Arizona, 384 U.S. 436 (1966), concluding that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." After the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts "restyled" the Federal Rules of Appellate Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Civil Procedure, it tackled its latest project:  the Federal Rules of Evidence. The goal in all of these projects has been to makes the Rules more user friendly rather than to enact substantive changes.  But have certain phrases in the Federal Rules of Evidence become part of our courtroom culture such that they are off limits? According to the Advisory Committee on the Rules of Evidence, the answer is "yes." According to the recent article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000), by Katharine Traylor Schaffzin of the University of Memphis Cecil C. Humphreys School of Law, the answer is also "yes," but to a lesser extent than posited by the Advisory Committee.

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The Mystery Of The Quotient: Court Of Appeals Of Tennessee Reverses Jury's Quotient Verdict

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.

Moreover, the Advisory Committee's Note to Rule 606(b) indicates that it is derived from federal opinions in which "testimony or affidavits of jurors ha[d] been held incompetent to show a compromise verdict [or] a quotient verdict." Meanwhile, Tennessee 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 any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; 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. (emphasis added)

So, what is a quotient or gambling verdict? Well, let's take a look at the recent opinion of the Court of Appeals of Tennessee in Cullum v. Baptist Hospital Systems, Inc., 2011 WL 553768 (Tenn.Ct.App. 2011).

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My New Article: Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine

My new article addresses an issue I first raised on this blog last October: Is "nontestimonial" hearsay beyond the scope of the  Bruton doctrine in the wake of the Supreme Court's opinion in Crawford v. Washington? Here is the abstract of the article, which you can download from SSRN (Download Article):

The Bruton doctrine holds that the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant’s confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence. Under this doctrine, Co-Defendant’s confession to Police Officer that “Defendant and I killed Victim” could not be admitted unless Co-Defendant testified at trial. But what if Co-Defendant made his confession to his mother, his brother, his lover, or his friend? While the vast majority of courts before 2004 would have held that such “noncustodial” confessions violated the Bruton doctrine, the tables have turned in the wake of Crawford v. Washington, with most courts finding such “nontestimonial” confessions beyond the scope of the Bruton doctrine.

This article argues that courts have erred in reaching this conclusion because the Bruton doctrine is a test of Constitutional harmfulness while Crawford, like its predecessor, Ohio v. Roberts, is a test of Constitutional (un)reliability. Moreover, even if Crawford deconstitutionalized the Bruton doctrine with regard to nontestimonial hearsay, courts should still find that the admission of nontestimonial co-defendant confessions violates the rules of evidence.

-CM

Avoiding a Confrontation Take 3: Central District Of California Finds Nontestimonial Hearsay Beyond Scope of Bruton

A defendant and his brother are charged with first degree murder and jointly tried before a jury. The same day as the murder, the defendant and his brother both allegedly made statements to a friend at a baby shower implicating themselves in the murder, and the brother's statement identified the defendant as the shooter. At their joint trial, the brother does not testify. Is the brother's statement admissible at trial? That was the question addressed by the United States District Court for the Central District of California in its recent opinion in De Niz v. Clark, 2011 WL 836448 (C.D. Cal. 2011), and it is also the question addressed in an article I should have completed tomorrow.

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Adoption Agency: Supreme Court Of Texas FInds Appraisal Constitutes Adoptive Admission

Texas Rule of Evidence 801(e)(2)(B) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth;

So, let's say that a district seeks to acquire a waterline easement across land owned by a company and initiates condemnation proceedings against the company when negotiations fail. And let's say that at a hearing, the district presents an appraisal by a state certified appraiser of the damages that the company would suffer from the easement. Finally, let's say that the company later brings a civil action against the district. Will the district be able to claim that the appraisal is inadmissible hearsay because the appraiser was not its agent? According to the recent opinion of the Supreme Court of Texas in Reid Road Mun. Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 WL 836869 (Tex. 2011), the answer is "no" because the appraisal constitutes an "adoptive admission" under Texas Rule of Evidence 801(e)(2)(B).

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