EvidenceProf Blog

Article Of Interest: Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment

If you have ever taught or taken an Evidence class, you likely know about the following oddity in the Federal Rules of Evidence. Federal 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," and Federal Rule of Evidence 802 provides that "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Meanwhile, Federal Rule of Evidence 803 and Federal Rule of Evidence 804 provide exceptions to the rule against hearsay for statements that are offered in evidence to prove the truth of the matter asserted but which are thought to be sufficiently reliable/trustworthy.

And then, there is Federal Rule of Evidence 801(d), which indicates in relevant part that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) 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, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

In a sense, then, Rule 801(d) is oxymoronic. Rules 803 and 804 make sense. They take statements that are defined as hearsay under Rule 801(c) and say, "Well, wait a minute. These are exceptions to that rule." But Rule 801(d) is internally inconsistent with Rule 801(c). Rule 801(c) provides the definition of hearsay, but then Rule 801(d) basically says, "Well, no. That's not really the definition because here are 8 statements that should be deemed hearsay under Rule 801(c) but which we are going to classify as 'not hearsay.'"

As Sam Stonefield, a professor at the Western New England College of Law, notes in his new article, Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011), while this oddity ha not caused significant problems for lawyers and judges, Rule 801(d) is poorly written and is in need of a good rewrite.

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A Matter Of Character?: Alaska Case Reveals State's Domestic Violence Character Evidence Exception

Similar to Federal Rule of Evidence 404(b), Alaska Rule of Evidence 404(b)(1) provides that

Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Alaska, however, also has Alaska Rule of Evidence 404(b)(4), which provides that

In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible. In this paragraph, "domestic violence" and "crime involving domestic violence" have the meanings given in AS 18.66.990.

So, how do Alaska courts apply Alaska Rule of Evidence 404(b)(4), and how many states have so-called domestic violence exceptions to the propensity character evidence proscription? These are the topics that I will address in this post.

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Conspiracy Theory: Should Courts Find Co-Conspirator Admissions To Confidential Informants Per Se Nontestimonial?

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. 

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.

The conventional wisdom among courts in the wake of Crawford is that co-conspirator admissions made to confidential informants/undercover agents are "nontestimonial" and thus present no problems under the Confrontation Clause. But does such a categorical conclusion make sense? Let's take a look at the recent opinion of the United States District Court for the Central District of California in Le v. Dexter, 2011 WL 1842887 (C.D. Cal. 2011), to see.

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Adoption Agent: 2nd Circuit Finds Notes From Agent's Interrogation Of Suspect Admissible As Adoptive Admission

Assume that a suspect in a crime is interviewed by an investigative agent and makes certain incriminatory statements. And, assume that, during the interview, the agent takes notes during the interview that are not a perfect transcription of exactly what the suspect. But, assume that the agent shows the notes to the suspect at the end of the interview and has the suspect review and sign the notes. Should the notes be admissible against the suspect at trial? According to the recent opinion of the Second Circuit in United States v. Stafford, 2011 WL 1938662 (2nd Cir. 2011), the answer is "yes."

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Refreshment. SImply Delivered: Plaintiff's Attorney Properly Uses Rule 612 In DIscrimination Suit Against DHL

Federal Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

And, if you want a textbook example of a party properly utilizing Rule 612, you need look no further than the recent opinion of the First Circuit in Aponte-Rivera v. DHL Solutions (USA), Inc., 2011 WL 2027977 (1st Cir. 2011).

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Article of Interest: Recognizing Constitutional Rights at Sentencing, by Carissa Hessick and Andy Hessick

In Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), the Supreme Court famously found that "[i]t can hardly be argued that either students or teachers shed their constitutional rights...at the schoolhouse gate." In their terrific new article, Recognizing Constitutional Rights at Sentencing, 99 Cal. L. Rev. 47 (2011), Carissa Hessick and Andy Hessick, professors at the Arizona State University College of Law, argue that the same applies to criminal defendants who have been convicted and then go through the courthouse doors to the sentencing hearing. The purpose of this post is two-fold: (1) to lay out the reasoning of their article; and (2) to apply the reasoning to victim impact statements. 

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So Turn And Forfeit: Does A Wrongdoing Party Forfeit The Right To Impeach?

I was recently posed an interesting question. 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.

Meanwhile, Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

So, assume that a court finds that a defendant engaged in forfeiture by wrongdoing and allows the prosecution to admit the unavailable declarant's hearsay statement(s) against the defendant. Then, assume that the defendant wants to impeach the declarant pursuant to Federal Rule of Evidence 806 or a state counterpart. Has the defendant also forfeited his right to impeach the declarant like he forfeited his hearsay and Confrontation Clause objections? 

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Whole Grain: ND OH Opinion Reveals Rule 407 Doesn't Cover Plaintiff Subsequent Remedial Measures, But Rule 403 Does

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, if a plaintiff claims that a defendant's instrumentality was defective and that this defect caused the plaintiff to suffer damages, the plaintiff cannot present evidence of improvements by the defendant (subsequent remedial measures) to prove that the instrumentality was previously defective. But what if a defendant wants to present evidence of a subsequent remedial measure by a plainti? As the recent opinion of the United States District Court for the Northern District of Ohio in Younglove Const. v. PSD Development, 2011 WL 1933755 (N.D.Ohio 2011), makes clear, Rule 407 does not deem such evidence inadmissible, but courts often exclude it under Federal Rule of Evidence 403.

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How Long Must I Dream?: District Of Colorado Finds Sleeping Juror Can Lead To 6th Amendment Claim, Despite Tanner

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

Moreover, the Court found that the trial court did not violate the district court did not violate the petitioners' Sixth Amendment right to a competent jury by applying Rule 606(b) to preclude jury impeachment on these topics. As the United States District Court for the District of Colorado noted in its recent opinion in Fletcher v. Hartley, 2011 WL 1843316 (D. Colo. 2011), however, the Court did in Tanner didn't answer a related question: If a court allows jury impeachment regarding jurors sleeping during trial, should that court find that a sleeping jurors violates the Sixth Amendment right to a competent jury?

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Make Me Whole, Take 7: Court Of Appeals Of Minnesota Finds No Problem With Impeachment Via Terroristic Threats Conviction

Similar to its federal counterpart, Minnesota Rule of Evidence 609(a) 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 only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

In other words, if a witness has a conviction for as crime involving dishonesty or false statement (e.g., perjury, larceny by trick), the conviction is automatically admissible to impeach the witness, i.e., to show that his testimony is not trustworthy. If a witness has a conviction for a crime not involving dishonesty or false statement, the conviction will only be admissible if its probative value for showing that the witness' testimony is not trustworthy outweighs the prejudicial effect of the conviction. Most courts hold that a prior conviction can only be admissible under Rule 609(a) if it is for a crime that has some bearing on witness honesty. As I have noted in several posts (here, here, here, here, here, and here), Minnesota courts are not among these courts. The latest example can be found in the recent opinion of the Court of Appeals of Minnesota in State v. Odeneal, 2011 WL 1833018 (Minn.App. 2011).

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Nothing's Shocking: Court Of Appeals Of Minnesota Finds Expected But Emotional Event Not Startling For Excited Utterance Purposes

I remember serving as an extern at the Supreme Court of Virginia back in 2002. One of the justice's clerks told me that the justices were deciding whether to hear an appeal in Esser v. Commonwealth, 566 S.E.2d 876 (Va.App. 2002), and asked me to write a memo on the case. The clerk knew that I was interested in evidentiary issues, and Esser presented a juicy one: Can an excited utterance follow a subsequent startling event or condition? Specifically, in Esser, a mother was about to leave her daughter at home with the mother's live-in boyfriend when the daughter emotionally told her mother than the boyfriend had raped her a few days ago. The Court of Appeals of Virginia found that this statement was an excited utterance, concluding that the startling event was not the rape but the daughter being told that she would be left home alone with the boyfriend. In my memo, I noted that courts, and especially Texas courts, were split on the issue, but that I thought that the Court of Appeals' analysis was correct. The Supreme Court of Virginia denied the appeal.

Later, I used the memo to write, A Shock to the System: Analyzing the Conflict Among Courts over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 Wm. & Mary J. Women & L. 49 (2005). Thereafter, I was happy to report that the Court of Criminal Appeals of Texas eventually agreed with my analysis and found that excited utterances can follow subsequent events and conditions in McCarty v. State, 2008 WL 2512818 (Tex.Crim.App. 2008). In its recent opinion in State v. Goodwin, 2011 WL 1833012 (Minn.App. 2011), the Court of Appeals of Minnesota also agreed with me in theory although it seemingly placed on odd limitation on it as well as the excited utterance exception in general.

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Article of Interest: “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, by Jane Campbell Moriarty & Marisa Main

Similar to most state counterparts, Federal Rule of Evidence 410(4) states 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, when a defendant enters into plea discussions, any incriminatory statements that he makes during the plea bargaining process will be inadmissible against him at trial should a plea agreement not be reached, right? Wrong. Since the Supreme Court's 1995 opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), courts consistently have held that prosecutors can force defendants to waive the protections of Rule 410 (as well as other evidentiary and constitutional protections) to get to the plea bargaining table. Moreover, as noted in the excellent forthcoming article, “Waiving” Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation, "the law of waiver has expanded exponentially in the last few decades, necessitating a change in the current" ABA Standards for Prosecution and Defense Function. The article was co-authored by Jane Campbell Moriarty, a professor at The University of Akron School of Law (and soon to be the Carol Los Mansmann Chair at the Duquesne University School of Law), and Marisa Main, a Professor Moriarty's RA, who will soon by a federal judicial clerk.

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Resource of Interest: The National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law

Today, I wanted to shine a light on a truly terrific resource that I use in preparing for classes, researching and writing scholarship, and updating this blog: The National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law. The vision statement of the Clearinghouse is "[t]o foster communication between the scientific, technological and legal communities, resulting in awareness and understanding of the policies, interests and concerns affecting those communities." Meanwhile, its mission statement is "[t]o provide comprehensive scientific, technological and legal information, which will promote justice based on sound science and technology."

So, how does it accomplish these goals? Well, it

assembles the available scientific, technological, and relevant legal resources into a comprehensive "one-stop" searchable database with equal access for all. There are no subscription fees which makes the NCSTL database the only free compilation of forensic resources in the world.    

NCSTL seeks to promote justice by developing resources for the legal and scientific communities to provide timely, accurate and useful information. Current projects include distance education programs and training modules and primers with an emphasis on distance delivery, in-person trainings, and extended partnerships with law schools, professional agencies, and federal and state agencies.

NCSTL provides a searchable database of legal, forensic, and technology resources; a reference collection of law, science, and technology material; content-specific bibliographies; national conferences on science, technology, and the law; community acceptance panels; and training for defense counsel who are handling cases involving biological evidence on the applications and limitations of DNA evidence as stated in the President’s DNA Initiative.

In the rest of this post, I will highlight the NCSTL resources that I regularly use and some of the fine folks responsible for the NCSTL's accomplishments.

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Article of Interest: E. Lea Johnston's Representational Competence: Defining the Limits of the Right to Self-Representation at Trial

When should a defendant be allowed to represent himself at trial? This is a pretty fundamental criminal justice question because the denial of the right of self-representation is a structural error necessitating a new trial without a showing of actual prejudice. As the Supreme Court noted in McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984), "The right is either respected or denied; its deprivation cannot be harmless."

And yet, how are trial courts to decide whether a defendant is sufficiently competent to represent himself at trial? In Dusky v. United States, 362 U.S. 402 (1960), the Supreme Court held that the Constitution does not permit the trial of a person who lacks mental comepetence and then defined the competency standard as including both (1) "whether" the defendant has "a rational as well as factual understanding of the proceedings against him;" and (2) whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding."  28 years later, in Indiana v. Edwards, 554 U.S. 164, 177 (2008), the Court held that  "the Constitution permits States to insist upon representation by counsel for those competent enough to stand trial under Dusky but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves."

But under what circumstances should a court find that a defendant is competent to stand trial but not competent to represent himself? The Court in Edwards did not do much to answer this fundamental question, merely finding that the defendant's condition in the case before it fell "in a gray area between Dusky's minimal constitutional requirement that measures a defendant's ability to stand trial and a somewhat higher standard that measures mental fitness for another legal purpose." But don't take my word for it. Instead, consider the recent opinion in United States v. Saba, 2011 WL 202086 (W.D.Mich. 2011), in which the United States District Court for the Western District of Michigan concluded that "[t]he skeletal guidance of Edwards suggests that a case-by-case analysis is to be employed requiring, a review of the specifics of this case." This language suggests that the gray area between competence to stand trial and competence to self-represent is actually gray matter and that courts must probe the brain of each individual defendant to ascertain whether he can take the lead role in his trial instead of playing the understudy.

In her excellent forthcoming article, Representational Competence: Defining the Limits of the Right to Self-Representation at Trial (forthcoming, Notre Dame Law Review), E. Lea Johnston, a professor at the University of Florida Levin College of Law, argues that Edwards' skeletal frame is insufficient to support the enormity and complexity of the self-representation question. Instead, she argues that courts need to flesh out a test of representational competence, and she puts forward a test based upon social problem-solving theory.

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Eyewitness Account: Court Of Appeals Of Washington Practically Begs Supreme Court Of Washington To Approve Jury Instruction On Cross-Racial Identifications

Should defendants be able to present expert testimony and/or jury instructions about the inaccuracy of cross-racial identifications? I find this to be a fascinating question (see my posts here, here, here, here, here, and here), and it is one that has divided the courts. As the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Allen, 2011 WL 1745014 (Wash.App. Div. 1 2011), makes clear, Washington courts do not allow instructions about the inaccuracy of cross-racial identification but they can in their discretion allow expert testimony on the subject if certain factors are present. But here's the interesting thing about the court's opinion in Allen: The Court of Appeals seemed to say that such instructions should be given, and it seemingly laid out a strong case for the giving of such instructions. And, in effect, the Court of Appeals seemed to be begging the Supreme Court of Washington to agree with it.

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One Track Bind: Brady, Melendez-Diaz, and Remedial Rationing

Last week, I posted an entry about Cynthia Jones' A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010). Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. But what's the sanction for a Brady violation? Well, typically, it is merely the prosecution disclosing the exculpatory evidence. And, as Professor Jones noted, "Simply ordering the prosecutor to disclose the Brady evidence is, of course, more of a directive than a sanction, because the prosecutor is not required to do anything above and beyond that which was already constitutionally mandated."

This is why I thought that Professor Jones' proposal for additional sanctions for Brady violations (giving a Brady instruction similar to the adverse inference instruction and/or instructing jurors that that a Brady violation supports the inference of consciousness of a weak case) could cause a sea change in Brady because it would deter prosecutors from failing to disclose material exculpatory evidence. And the reason that such sanctions would be so important is that it is virtually impossible for defendants to turn around and bring successful civil actions based upon Brady violations, especially given the Supreme Court's recent opinions in Van de Kamp v. Goldstein, 555 U.S. 335 (2009) and Connick v. Thompson, 131 S.Ct. 1350 (2011).

In this regard, the right created by Brady is similar to many criminal procedure rights in that it is  subject to what Jennifer E. Laurin, a professor at The University of Texas School of Law refers to as "remedial rationing" in her essay Melendez-Diaz v. Massachusetts, Rodriguez v. City of Houston, and Remedial Rationing, 109 Colum. L. Rev. Sidebar 82 (2009). According to Professor Laurin, remedial rationing is the process by "which enforcement of a given criminal procedure right is committed either to the criminal or the civil realm." And, the argument in her article is "that remedial rationing is misguided both in underestimating the structural limitations of criminal and civil litigation to achieve regulatory goals, and in disregarding potential synergies that may be generated by recursive criminal procedure remedies." So, let's see how this plays out with the example of Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).

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Dead Again: Supreme Court Of Wisconsin Opinion Prompts Questions About Nature Of Dying Declaration Exception Under Common Law

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. As I have noted previously on this blog, however (see, e.g., here), the Court strongly implied that even testimonial dying declarations can be admitted without the defendant being previously able to cross-examine the declarant. At footnote 6 of its opinion in Crawford, the Court noted that 

Although many dying declarations may not be testimonial, there is authority for admitting even those that clearly are....We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis.

Later, in its opinion in Giles v. California, 554 U.S. 353 (2008), the Supreme Court noted that

We have previously acknowledged that two forms of testimonial statements were admitted at common law even though they were unconfronted....The first of these were declarations made by a speaker who was both on the brink of death and aware that he was dying.

Since Crawford, no state court has found that the admission of a testimonial dying declaration violated the Confrontation Clause, and the Supreme Court of Wisconsin recently joined these ranks with its opinion in State v. Beauchamp, 2011 WL 1681413 (Wis. 2011), holding:

We therefore, like every state court that has considered the dying declaration exception since Crawford, take a position consistent with the language of Crawford and Giles and decline to hold that the constitutional right to confront witnesses is violated by the admission of statements under the dying declaration hearsay exception. As the State notes, no published decision of any state court in the country has eliminated the dying declaration hearsay exception based on the reading of selected language of Crawford. We concur with the courts that have addressed this question after Crawford: a hearsay exception as long-standing, well-established and still necessary as this one, as indeed this case illustrates, cannot be lightly dismissed. Regardless of the religious justifications that have been articulated for dying declarations over the centuries, this hearsay exception is a crucial one, and it retains its vitality. We disagree with Beauchamp that scientific advances have changed criminal law such that there is always sufficient evidence without admitting the inculpatory words of a dying victim to fairly try a defendant accused of murder.

So, testimonial dying declarations can be admitted consistent with the Confrontation Clause because they were admitted under the common law. But what types of dying declarations were admitted under the common law? And which common law are we talking about? Moreover, what is the origin story of the dying declaration?

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Gun It: Ninth Circuit Finds Firearm Registration Report Admissible Under Rules 803(8), 902(4)

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

As the recent opinion of the Ninth Circuit in United States v. Buttner, 2011 WL 1790090 (9th Cir. 2011), makes clear, a firearm registration report generated by the Automated Firearms System (AFS) database is admissible hearsay under Rule 803(8) and is also self-authenticating.

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Article of Interest: Heather Baxter's Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis

Recently, I have been working on article that addresses the issue of whether the standard plea colloquy -- in which the judge asks the plea bargaining defendant whether his plea is "knowing, voluntary, and intelligent" -- is sufficient given the current public defender and economic crises. My argument is that it is not and that courts need to reconsider the language used in plea colloquies by referencing the Supreme Court's classic opinions in Gideon v. Wainwright and Miranda v. Arizona. Here is the opening paragraph to the abstract for the article:

In its landmark opinion in Miranda v. Arizona, the Supreme Court held that before a police officer can subject a suspect to custodial interrogation, he has to inform him not only that he has the right to attorney but also "that if he cannot afford an attorney one will be appointed for him…." 384 U.S. 436, 474 (1966). According to the Court, this latter admonition was necessary because the "[d]enial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford" could be supported by neither logic nor reason. Id. at 472-73. Indeed, "we should hardly be surprised to see the Court in Miranda take steps to protect indigent suspects subject to custodial interrogation; those steps mirrored perfectly the economic egalitarianism of the mid-1960s that marked the national mood." Corinna Barrett Lain, Countermajoritiarian Hero or Zero? Rethinking the Warren Court’s Role in the Criminal Procedure Revolution, 152 U. PA. L. REV. 1361, 1413 (2004). In including this latter admonition, the Court recognized that "[i]t was the poor who needed Miranda, just as they had needed Gideon three years before." Id.

So, what's the present problem with plea bargaining? Well, indigent defendants and public defenders are bringing lawsuits across the country, claiming that defendants are accepting plea bargains because, for all intents and purposes, they have no other choice. Their public defenders simply lack the time and resources to mount a vigorous defense at trial. And, what's the solution? The proposal in my article, which I have tentatively titled "If Your Attorney Cannot Afford You," is that courts need to add some variation of the following question to the plea colloquy: "Are you pleading guilty because you feel that your counsel is ineffective based upon lack of time and/or resources and would not be able to mount an adequate defense at trial?"  

Of course, this is a stop-gap measure. If a defendant answers this question in the affirmative, it means that the plea deal is rejected, and the defendant is returned to the same cash- and time-strapped public defender or other court-appointed counsel with (likely) similar issues. And that's part of my point. Maybe if judges, legislatures, and/or prosecutors see enough defendants making this claim in court, they will start to think about enacting some more permanent changes. And what might those changes be? That's the topic of a really interesting article that I came across in my research: Gideon’s Ghost: Providing the Sixth Amendment Right to Counsel in Times of Budgetary Crisis, 2010 Mich. St. L. Rev. 341 (2010), by Heather Baxter, a professor at the Nova Southeastern Law Center.

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Settlement Discovery: EDNY Finds Rule 408 Doesn't Preclude Discovery Of Settlement Agreement

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.

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.

In other words, Rule 408 deems evidence of settlement agreements inadmissible for certain purposes at trial? But does that mean that such settlement agreements are immune from discovery? According to the recent opinion of the United States District Court for the Eastern District of New York in Levick v. Maimonides Medical Center, 2011 WL 1673782 (E.D.N.Y. 2011), makes clear, the answer is "no."

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