EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, June 30, 2011

Gettin' (Un)Lucky In Kentucky: Court Of Appeals Of Kentucky Finds Trial Court Erred In Excluding Evidence That Alleged Victim Was A "Crack Whore"

Assume that a defendant is on trial for sexually assaulting a victim. And, assume that the defendant's defense is, essentially, that the alleged victim is a "crack whore." Should the defendant be able to present evidence of the alleged victim's prior drug (ab)use, without any accompanying evidence that she traded sex for drugs (or money to get drugs) to support the inference that she consented to the subject sexual act in exchange for drugs (or drug money)? According to trial courts in Kentucky in Vermont, the answer is "no." According to the Supreme Court of Vermont and the Court of Appeals of Kentucky in its recent opinion in Bell v. Commonwealth, 2011 WL 2078563 (Ky.App. 2011), the answer is "yes." In this post, I will explain why I think that these opinions were horribly misguided.

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June 30, 2011 | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 29, 2011

Independence Day, Take 3: Why I Think That The Supreme Court Will Find No Confrontation Clause Violation In Williams v. Illinois

Yesterday, I noted that the Supreme Court granted cert in Williams v. Illinois (10-8505) to address a question left unanswered by Bullcoming v. New Mexico: Is the Confrontation Clause violated when an expert witness for the prosecution relies upon a testimonial report prepared by an analyst who does not testify at trial, but the report itself is not admitted into evidence to prove the truth of the matter asserted? This was different from the question resolved by Bullcoming, in which the Court held that the Confrontation Clause is violated when such a testimonial report is actually admitted into evidence. Indeed, Justice Sotomayor made this distinction clear in her concurring opinion in Bullcoming, which I wrote about yesterday. In that post about Sotomayor's concurring opinion, I mused about whether the Bullcoming dissent would be able to create a 5-4 majority finding no Confrontation Clause violation in a case where a testimonial report is relied upon but not actually admitted into evidence to prove the truth of the matter asserted. And, based upon the facts of Williams v. Illinois, 939 N.E.2d 268 (Ill. 2010), I think the dissent will achieve this result.

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June 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 28, 2011

Independence Day, Take 2: Supreme Court Grants Cert in Williams v. Illinois

Well, it now looks like the Supreme Court will soon answer the question I raised in my earlier post today. According to SCOTUSblog:

The Supreme Court, in its final orders on Tuesday, showed its continued interest in the Sixth Amendment’s Confrontation Clause, taking on a new case on whether an expert witness can be called as a stand-in for a lab analyst who actually did a test on criminal evidence, but did not appear at the trial.  That question was close to one that had been raised last week by Justice Sonia Sotomayor as the Court ruled in the case of Bullcoming v. New Mexico (09-10876)....

The new Confrontation Clause case is Williams v. Illinois (10-8505).  In that case, the Illinois Supreme Court ruled that prosecutors could introduce a forensic analyst’s report on a DNA test of evidence by offering it through the on-stand testimony of an expert witness, when the lab analyst was not available to testify.  The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done.  The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the lab report was being admitted not for its truth, but only to explain the expert’s opinion about the results.

That was quite similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in the Bullcoming case.  In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible.  Sotomayor sought to show that the decision was a narrow one, and listed several factual scenarios that she said were not covered.  One of them was a situation in which “an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”   The Court apparently granted the Williams case on Tuesday to judge that very situation. 

 I will have more on Williams tomorrow.


June 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Independence Day?: What Does Justice Sotomayor's Bullcoming Concurrence Tell Us About Expert Opinions Based Upon Non-Admitted Testimonial Reports?

While I was away, guest blogger Ann Murphy wrote an excellent post about the Supreme Court's recent opinion in Bullcoming v. New Mexico. As she noted, in Bullcoming, the Court, in a 5-4 opinion, held that the Confrontation Clause was violated through the admission of a report concerning Bullcoming's blood alcohol content with the accompanying testimony of an analyst but without the accompanying testimony of the analyst who prepared the report. This was the result I previously predicted because Bullcoming was the easy case. As I noted in a previous post about Bullcoming:

I think that Bullcoming is an easy case given that the prosecution clearly introduced the absent analyst's report to prove the truth of the matter asserted in it. Given this, the case is just like Melendez-Diazand the Court should reach the same conclusion. And I feel safe in my belief because Confrontation Clause expert Richard Friedman has argued the same on The Confrontation Blog. As he notes, the tougher case is when an expert witness relies upon an absent analyst's report as the basis for opinion testimony but the report is not admitted into evidence. But, as he also notes, "that case is not the one before the Court [in Bullcoming], in which the prosecution clearly introduced a full report by the absent analyst. So, will the Court "simply resolve the case before it," or will it reach broader conclusions....? On that question, we will just have to wait and see.

Well, it turns out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provides a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman.

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June 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, June 27, 2011

Deepwater Horizon Order - Marital Privilege when using a Company Computer

An interesting recent discovery dispute Order reflects the fascinating balance between the spousal privilege and one’s expectation of privacy in the use of his or her computer email at work. A Magistrate Judge in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, On April 20, 2010 [United States District Court for the Eastern District of Louisiana, (MDL No. 2179 – Section J), available at: http://www.theemployerhandbook.com/oil.pdf]determined that a husband had no reasonable expectation of privacy in emails sent to his wife from his work computer. The husband’s assertion of the marital privilege was denied, and he was unsuccessful in his efforts to block the release of those emails.

As we all know, the Deepwater Horizon oil drilling rig suffered an explosion on April 20, 2010. As a result, 11 workers died and the world saw the largest accidental oil spill in history. Many parties instituted litigation against the manufacturer of the rig, the owners of the rig, and numerous other parties. This Order concerning the marital privilege is one of many issued thus far in the case. 

Brian Morel was a drilling engineer employed by BP (British Petroleum) on the Macondo Well – the site of the drilling on the date of the explosion. He married a BP production engineer in 2008. His wife did not have any professional responsibilities on the Macondo Well. He sent her many email messages through their BP work accounts. The Plaintiff Steering Committee (PSC), the United States, the States of Louisiana and Alabama, Halliburton, and other litigants scheduled a deposition of Mr. Morel. His counsel informed the parties that he would invoke his Fifth Amendment privilege in response to any questions they might ask. BP had already turned over email sent by Mr. Morel. He objected to the release of 93 of these emails based upon an asserted marital privilege. In this Order, Magistrate Judge Shushan determined that Mr. Morel had no expectation of privacy in the emails sent to his wife through their BP account and the marital privilege did not apply. This is instructive as presumably we would have the same result if a party wishes to use that privilege at trial and there is an evidentiary objection. 

The emails were sent from Mr. Morel’s email account with BP to his wife’s email account with BP. His attorney argued that there was indeed an expectation of privacy in the emails because there was no evidence that BP monitored its employees’ emails and the parties seeking the emails had not met their burden to overcome the presumption of privilege. 

BP had a “pop-up screen” that appeared when their employees used their work computers and it stated the following: “within the bounds of law, electronic transmissions through internal and external networks may be monitored to ensure compliance with internal policies and legitimate business purposes.” BP also informed employees that personal data and communications were not private and that email was “subject to potential compulsory disclosure by subpoena.”  Despite these warnings, Mr. Morel’s counsel argued that BP had no prohibition against employees using the email network for personal use, and no policy of actual monitoring had ever been shown.  “Mr. Morel urges that the determination is not made on the basis of the written BP policies but on how those policies were implemented.”

Judge Shushan analyzed a 5th Circuit case, U.S. v. Slanina, 283 F. 3d 670 (5th Cir. 2002) in which the Court found an expectation of privacy despite an employee’s use of his work computer. In her Order, Judge Shushan distinguished Slanina because in that case, there was also no evidence that there was any sort of computer policy in place and there was no evidence that employees were informed of a dissemination policy or monitoring. She also considered a case cited by Mr. Morel, In re: Asia Global Crossing, Ltd., a bankruptcy case from New York (322 BR 247 (Bankr. S.D.N.Y. 2005)) that set forth the following four factors for determining an employee’s expectation of privacy:

  1. Does the corporation maintain a policy banning personal or other objectionable use;
  2. Does the company monitor the use of the employee’s computer or email;
  3. Do third parties have a right of access to the computer or emails; and
  4. Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies. 

Judge Shushan decided that other cases did not require a finding that a company banned personal use of computers and email and that there was no specific evidence in this case that monitoring did not occur within BP. She decided to follow the reasoning of these other cases and specifically found the following:

It is not objectively reasonable for an employee to have an expectation of privacy where the employers’ policies clearly demonstrate that: 1) the employee’s electronic communications are not private; 2) they may be monitored and accessed by the employer; and 3) they are subject to production by a subpoena.

It is an interesting Order and brings to mind some of the similar cases of employee use of computers to contact and communicate with their attorneys. For an interesting recent case on that front, see Holmes v. Petrovich Development Co., LLC, a California Appellate case, available at: http://scholar.google.com/scholar_case?case=9181011446702902609&hl=en&as_sdt=2&as_vis=1&oi=scholarr


June 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, June 24, 2011

Bullcoming Decided - No Surrogate Allowed

Wouldn’t you know it – a day after I post “an interesting Confrontation Clause case” decided by the Ninth Circuit (Ocampo), a highly anticipated United States Supreme Court opinion on the Confrontation Clause is issued – Bullcoming v. New Mexico, No. 09-10876 (June 23, 2011), available at: http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf

An earlier U.S. Supreme Court case Melendez-Diaz v. Massachusetts, 557 U.S. ____ (2009) formed the backdrop for this most recent case, Bullcoming. In Melendez-Diaz, the Supreme Court held that a forensic laboratory report was “testimonial” under the Sixth Amendment’s Confrontation Clause. As such, under the reasoning established by Crawford v. Washington, 541. U.S. 36 (2004), the prosecution must introduce a live witness competent to testify about the report, unless there was a prior opportunity for cross-examination by the defendant. 

In Bullcoming, the issue was whether the Confrontation Clause required the prosecution to produce the actual author of the report. The majority (by a 5-4 vote) decided that the original author was required and a “surrogate” witness did not meet the constitutional requirements of the Confrontation Clause.

Donald Bullcoming hit the back of another driver’s truck with his car in August 2005. When the owner of the truck spoke with Bullcoming, he noticed that Bullcoming’s eyes were bloodshot and he smelled of alcohol. The driver of the truck had his spouse call the police. Bullcoming left the scene, but was apprehended a short time later. The arresting officer performed a “field sobriety test” on Bullcoming and he failed. He was arrested for DWI. Bullcoming refused a breath test, and the police obtained a warrant for a blood-alcohol test. His blood was drawn at the hospital and it sent a sample to the New Mexico Department of Health, Scientific Laboratory Division (SLD). The SLD issued its standard form entitled “Report of Blood Alcohol Analysis” and it was completed and signed by Curtis Caylor, a SLD analyst.

Caylor used a “gas chromatography” machine (a widely used scientific method of quantitatively analyzing the constituents of a mixture”) to measure Bullcoming’s blood-alcohol level and the report indicated that his alcohol level was 0.21. Bullcoming was charged with aggravated DWI.

During Bullcoming’s trial, to the surprise of defense counsel, the prosecution announced that Caylor would not be testifying and instead Gerasimos Razatos, another SLD analyst would testify about the report. The prosecutor stated that Caylor had “very recently been put on unpaid leave.” Defense counsel objected on Confrontation Clause grounds, but the trial court overruled the objection. [Interestingly, the trial judge “noted that, when he started out in law practice, “there were no breath tests or blood tests. They just brought in the cop, and the cop said “Yeah, he was drunk’””]. Bullcoming was found guilty of aggravated DWI by the jury. 

The New Mexico Court of Appeals affirmed his conviction and concluded that that report was not testimonial and was routine “with guarantees of trustworthiness.” The Supreme Court decided Melendez-Diaz while Bullcoming’s appeal was pending before the New Mexico Supreme Court. After Melendez-Diaz was decided, the New Mexico Supreme Court accordingly determined the lab report was indeed testimonial, but it affirmed Bullcoming’s conviction because it determined that 1) Caylor was a “mere scrivener” who only transcribed the results of a machine test; and 2) Razatos provided live in-court testimony and was a qualified surrogate for Caylor.

Justice Ginsburg delivered the opinion of the Supreme Court, joined by Justices Scalia, Sotomayor, Kagan, and Thomas. Justices Sotomayor, Kagan and Thomas did not join Part IV of Justice Ginsburg’s opinion, and Justice Thomas also did not join in footnote 6. Justice Ginsburg stated the following in her majority opinion, “As a rule, if an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had a prior opportunity to confront that witness.” The case was reversed and remanded, although the Court expressed no view on whether the error was harmless. 

The majority compared the New Mexico Supreme Court’s “mere scrivener” finding to that of a witness testifying that a light was green. Witnesses many times record what they observed. This does not mean the statements are beyond the reach of the Confrontation Clause. The report was more than a mere reading of a machine – the Court found that there was opportunity for human error – in fact, in a footnote it noted that in Colorado a single laboratory “produced at least 206 flawed blood-alcohol readings over a three-year span.” The Court stated that “when the State elected to introduce Caylor’s certification, Caylor became a witness Bullcoming had the right to confront.” The right to confront Razatos, a surrogate, was not enough.

Part IV of the opinion is interesting. This is the part of the opinion that Justices Sotomayor, Kagan, and Thomas did not join. Justice Ginsburg relates that New Mexico and its amici pointed out the “undue burden on the prosecution” in these cases (a point accepted by the dissenting justices in this case). In New Mexico, the State offered defendants free retesting of samples. Justice Ginsburg wrote that this is the burden of the State, and not of the defendant.

Her comments bring to mind the Briscoe v. Virginia case, in which the Supreme Court granted certiorari, received full briefing and heard oral arguments but then filed a GVR (grant, vacate, and remand).

Justice Sotomayor wrote a concurring opinion and indicated several situations the Court did not have before it – she indicated that the reasoning of the Court may differ under those circumstances, such as a situation where a supervisor was the surrogate witness. In Bullcoming, Razatos was not in any way associated with the Caylor report – he had not supervised the report, and he was not present when the report was written.

The same four justices who dissented in Melendez-Diaz dissented again in Bullcoming – Justices Kennedy, Roberts, Breyer, and Alito.  Justice Kennedy, who wrote the dissenting opinion, stated that “the Court today takes the new and serious misstep of extending [Melendez-Diaz]…Here a knowledgeable representative of the laboratory was present to testify and to explain the lab’s processes and the details of the report; but because he was not the analyst who filled out part of the form and transcribed onto it the test result from a machine printout, the Court finds a confrontation violation.”

States that had hopes that the Supreme Court might back off of its Melendez-Diaz opinion must be disappointed. Clearly Justices Sotomayor and Kagen have followed in the footsteps of those they succeeded – Justices Stevens and Souter. The finding that lab reports are testimonial and require live testimony is on solid ground and now the prosecutors must present the testimony of the authors of the reports and not surrogates. There is a little room for doubt when the surrogate is a supervisor, reviewer or someone with a connection with the test – that may be a different situation, at least for Justice Sotomayor. 

Ann Murphy


June 24, 2011 | Permalink | Comments (2) | TrackBack (0)

Thursday, June 23, 2011

No End-Run Allowed under the Confrontation Clause (9th Circuit)

An interesting Confrontation Clause case was decided by the Ninth Circuit on June 9, 2011, Ocampo v. Vail, 2011 WL 2275798 (9th Cir – WA).  The case was an appeal of the denial of a  petition for a federal writ of habeas corpus by the U.S. District Court for the Western District of Washington. The key issue in the case was whether two police officers’ statements generally “outlining” what was said by an alleged witness to a shooting violated Ocampo’s constitutional right to confront his accuser. 

Julio Morales-Castro was fatally shot in the head on the evening of August 9, 2003 outside of a pool hall in Tacoma, Washington. Santana Ocampo was charged with first-degree murder and was found guilty by a jury. He appealed (on the confrontation issue as well as other issues) and the Washington State Court of Appeals affirmed his conviction. The Washington Supreme Court denied review, and Ocampo then sought habeas corpus relief at the federal level.  

His petition for a writ was filed after the U.S. Congress passed the Anti-Terrorism and Effective Death Penalty Act of 1996 (Pub.L. No. 104-132, 110 Stat. 1214 (AEDPA)) and accordingly Ocampo was required to show either an “unreasonable determination” (if the last reasoned state decision was based on an unreasonable determination of the facts in light of the evidence presented); or an “unreasonable application” (a legal determination that was contrary to or involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States).

The Ninth Circuit determined that Ocampo met his burden and it specifically found that the Washington State Court of Appeals unreasonably applied “clearly established Supreme Court Confrontation Clause jurisprudence.” The Court remanded the case with instructions for the District Court to grant the writ unless the State of Washington elects to retry him within a reasonable amount of time.

The confrontation clause was triggered by the absence of an alleged witness Mesial Vasquez, who had reportedly moved to Mexico.

After the shooting, the police showed witnesses at the scene a number of pictures of members of the Hispanic gang Surreno 13, who frequently “hung out” in the area. The witnesses identified Jose Hernandez from the photos. When located by the police, he implicated Ocampo, Vasquez, and another man, Baldemar Vela. According to Hernandez, all four men (Hernandez, Ocampo, Vasquez, and Vela) were in a van the evening of the shooting and stopped to purchase beer. Hernandez told police (and later testified at Ocampo’s trial) that he and Ocampo attempted to steal Morales-Castro’s car and when Morales-Castro came out of the pool hall, Ocampo shot him.

Hernandez was not a particularly good witness at trial. He was an admitted accomplice to the shooting, he reached a plea agreement with the government to testify against Ocampo, his testimony was “inconsistent in several respects with his pre-trial version of events,” his testimony of the facts was inconsistent with other witnesses’ testimony, and most striking, he told two juvenile detention officers as well as his ex-girlfriend that he (and not Ocampo) was the shooter. 

Vela was not a very effective witness either. He was the only other witness who claimed to have seen Ocampo at the scene of the crime. He did so only after being shown a single color Polaroid picture of Ocampo and after having been told that Ocampo had already confessed (which had in fact not happened). At trial, Vela testified that he did not know who the other passengers in the van had been.

The prosecutor called two police officers to testify about the absent Vasquez – only one of whom had ever actually talked to him. Officer Ringer testified that Vasquez corroborated that Ocampo was in the van that evening – despite the fact that Officer Ringer never spoke with Vasquez. Immediately after Officer Ringer’s testimony, Hernandez named Ocampo as the shooter. The other police officer, Detective Webb had spoken with Vasquez. He testified that Vasquez identified Ocampo as being present at the shooting. Defense counsel objected to the testimony of both officers as violative of Ocampo’s right to confrontation.

The prosecution referred to the two officers’ testimony in its closing argument. And the Ninth Circuit found that the prosecution “emphasized Vasquez’s statements.”

The State’s primary argument before the Ninth Circuit was that the confrontation clause was not implicated, because Officer Ringer only “implied the outlines” of Vasquez’s statements, and Detective Webb “did not testify to the substance of any statements Vasquez made.” In other words, the State argued that there was no testimony offered against Ocampo – no statements made by Vasquez had been admitted at trial. 

The Ninth Circuit disagreed and determined that although the State characterized the testimony as an “outline” and not “substance,” the State had indeed introduced statements of Vasquez against Ocampo. A very nice review of Crawford v. Washington, 541 U.S. 36 (2004) as well as several Circuit Court opinions are contained in the opinion. The Court said that descriptions of out of court statements are statements, according to the Supreme Court – the statements need not be verbatim. 

The Circuit Court stated the following, “it would be an unreasonable application of the core Confrontation Clause principle underlying Crawford to allow police officers to testify to the substance of an unavailable witness’s testimonial statements as long as they do so descriptively rather than verbatim or in detail.” The Court also cites to a recent First Circuit case, U.S. v. Meises, 2011 WL 1817855 (1st Cir., May 13, 2011) for a similar proposition. It also stated that if there had been any doubt of what was being offered through Officer Ringer and Detective Webb, the prosecution’s closing argument dispelled any doubt – they were offering statements of Vasquez in his absence and without any prior opportunity for Ocampo to cross-examine him. These statements “had a substantial and injurious effect or influence in determining the jury’s verdict.”

The prosecution’s case had “considerable weaknesses” without Vasquez’s testimonial statements. The Court dismissed the State’s argument that because Ocampo had the opportunity to cross-examine the police officers, he effectively had the opportunity to cross-examine Vasquez. The Court even referred back to Sir Walter Raleigh, and cited Davis v. Washington, 547 U.S. 813 (2006) for the proposition that “having a police officer stand in for an absent witness is not “conceivable”” for confrontation purposes.

It is a well written opinion and should put to rest any government attempt to enter testimonial statements of witnesses through police officers, even if those statements are summarized or in “outline” form. The error below was prejudicial and the case was reversed and remanded.

Ann Murphy

June 23, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, June 20, 2011

The Future is Now for FRE 502

I happened to notice a couple of interesting recent articles in the New York Law Journal. The first is entitled Broad Federal Court Powers Under Evidence Rule 502(d) (H. Christopher Boehning and Daniel J. Toal, New York Law Journal, April 8, 2011) available at: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202489354099; and the other is entitled Can Technology ‘De-Commoditize’ Document Review? (Robert W. Trenchard and Steven Berrent, New York Law Journal, April 28, 2011) available at: http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202491954188&slreturn=1&hbxlogin=1.  Both articles address the changing legal market and litigation strategies due to technological advances and the vast proliferation of computer data.

The e-discovery amendments to the Federal Rules of Civil Procedure were passed in 2006 and were followed by Federal Rule of Evidence 502 “Attorney-Client Privilege and Work Product; Limitations on Waiver.”  Rule 502 is available at: http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/2010%20Rules/Evidence.pdf. The purposes behind the passage of Rule 502 were two-fold. First, it was meant to resolve disputes about the effect of inadvertent disclosure of privileged or protected information, and second, it was meant to “respond to widespread complaints about litigation costs.”

In the “Broad Federal Court Powers” article referenced above, the authors discuss two cases, Rajala v. McGuire Woods, 2010 WL 2949582 (D. Kan. July 22, 2010); and Radian Asset Assurance Inc. v. College of the Christian Brothers of New Mexico, 2010 WL 4928866 (D. N.M. Oct. 22, 2010). In both cases, the Courts imposed nonwaiver agreements despite the lack of party agreements. In other words, the Courts determined they were authorized to issue nonwaiver orders despite the objection by one of the parties to the litigation. 

In a recent law journal article, Magistrate Judge Paul Grimm (a leader in the field of electronically stored information (ESI)), along with two of his law clerks, Lisa Yurwit Bergstrom and Matthew P. Kraeuter, indicated that a court may issue a nonwaiver order sua sponte - in the absence of a motion by one of the parties. See Federal Rule of Evidence 502: Has it Lived Up to its Potential?, Richmond Journal of Law and Technology, Vol. XVII, Issue 3, Spring 2011. available at http://jolt.richmond.edu/v17i3/article8.pdf, at p. 59.  The entire Journal issue is devoted to ESI and is an excellent source of information in this area.

Boehning and Toal warn counsel that if they are unable to agree to claw back or quick peek agreements, the courts may well do it for them. 

The second article, “Can Technology ‘De-Commoditize’” appears to have its genesis in a New York Times article entitled Armies of Expensive Lawyers, Replaced by Cheaper Software, John Markoff, March 4, 2011, available at:

http://www.nytimes.com/2011/03/05/science/05legal.html. Markoff highlights the problem that formed one of the bases for Rule 502 – the expense of e-discovery. According to authors Trenchard and Berrent, e-discovery costs “can make up to 50 to 90 percent of a case’s budget, and document review is often the lion’s share of that amount.” According to the New York Times article, “e-discovery software can analyze documents in a fraction of the time for a fraction of the cost.” The “exclusive province of human decision makers” and the cost of paying those decision makers will soon become a thing of the past, according to these articles. This will affect lawyers, clients and the legal system in general. The authors believe there will be a resultant need for change in discovery and evidentiary rules. 

In the area of e-discovery and Rule 502, change is happening at a rapid fire pace. Lawyers, law firms, judges, and of course law professors will need to keep up with these changes. One area of change may well be a “manpower reduction” for lawyers. The future of e-discovery should be fascinating and no one can afford to be left behind. 

Ann Murphy


June 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, June 17, 2011

Frye in the Trunk of a Car (Anthony case)

Many thanks to Professor Colin Miller for inviting me to guest blog on this site for a couple of weeks.

Much attention has been paid to the Casey Anthony case – State of Florida v. Casey Marie Anthony, Case No. 48-2008-CF-15606-O (In the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida) before the Honorable Belvin Perry, Jr., Circuit Judge. A couple of Judge Perry’s Frye Orders are interesting. As most Americans know, Casey Anthony has been charged with first degree murder of her daughter Caylee. The indictment is available at: http://i2.cdn.turner.com/cnn/2008/images/10/15/caylee.indictment.pdf.

The trial began in Florida on May 24, 2011. Judge Perry ruled on two interesting Defense motions to exclude “unreliable evidence” under the standard followed in Florida, Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923). The first Order was issued on April 27, 2011 and is available at: http://www.baynews9.com/static/articles/images/documents/casey-anthony-chloroform-motion-denied-0427.pdf (the “Chloroform Order”). The other is Judge Perry’s May 7, 2011 Order, available at: http://www.cfnews13.com/static/articles/images/documents/casey-anthony-order-denying-motion-to-exclude-unreliable-evidence.pdf (the “Decomposition Odor Analysis” Order).

In his Chloroform Order, Judge Perry denied Defendant’s motion to exclude any mention of chloroform at the Anthony trial. Defendant Anthony first moved to exclude the evidence based upon pure relevance grounds. The judge gave the relevancy objection short shrift. He found that there was circumstantial evidence that Casey Anthony had access to the computer that contained computer searches for the term “chloroform” prior to the death of her child.

On the Frye part of the motion, he determined that the method used for analysis of the carpet samples from the trunk of Defendant’s car (the GC/MS – gas chromatograph/mass spectrometer method) had been in use for 40 years and was generally accepted in the scientific community. He denied Defendant’s motion.

In his Decomposition Odor Analysis (DOA) Order, Judge Perry ruled on the Defendant’s Motion to Exclude “any testimony or evidence concerning any alleged identification of the chemical composition of human decomposition odor…or reference to an alleged “decompositional” odor analysis database.” At the Frye hearing, Dr. Arpad Vass, a senior research scientist with the University of Tennessee Oak Ridge National Laboratory testified that his colleague Dr. Marcus Wise “removed air with a syringe from the headspace of a metal evidence can containing the carpet sample taken from the vehicle allegedly driven by the Defendant.” His “Final Forensic Report” stated the following:

While not conclusive, these data indicate that:

(1)   Nearly all the compounds present in early human decomposition were detected in the trunk samples…”; and

(2)   Compounds that have been detected in these select animal remains and not in humans were not detected in the Florida trunk carpet sample…

The Defense called two scientists to refute that Dr. Vass’s scientific principles were generally accepted by members of his scientific field.

First, Judge Perry determined that expert testimony on “basic odor identification” would be allowed and he denied the Defendant’s motion on that particular evidence. He would permit testimony that when Dr. Vass opened the sealed container that contained the carpet sample, he smelled a “strong odor of human decomposition.” Second, he allowed in (under Frye) evidence that “the odor signature identified in the trunk of the vehicle alleged to have been used by the Defendant [was] consistent with an early decompositional event of human origin but that the results do not rule out the remote possibility an unusual variety of products or materials may have had some contribution to the overall chemical signature.”

My take on it: The Defense really did not have a Frye-type objection to the chloroform evidence. It is clear the method was well established in the field. The Defense really had an issue not with the method itself, but rather with how the samples were collected and analyzed. It really was not a Frye issue at all.

The Decomposition Odor Analysis (DOA) Order. Judge Perry really dodged the issue of whether Dr. Vass’s analysis passed muster under Frye – he seemed to indicate that because Dr. Vass found that the “odor signature” could not be found to be solely that of a decomposing human body, the Frye test was met. I disagree. That ruling has to do with the strength of the method, not whether the method has been generally accepted in the field. Only Dr. Vass and a Greek scientist, Dr. Statheropoulos have performed this type of “signature decomposition” analysis. Neither, it appears, had ever tested this method on carpet samples.

That being said, the possibility of Judge Perry’s ruling on the decomposition odor analysis being reversed on appeal (if indeed an appeal is taken if Casey Anthony is convicted) is slim. Judges have broad discretion in this area. 


June 17, 2011 | Permalink | Comments (4) | TrackBack (0)

Wednesday, June 15, 2011

Please Welcome Guest Blogger Ann Murphy

From today until June 27th, I will be traveling. While I'm gone, Ann Murphy will be guest blogging here. Professor Murphy is an Associate Professor of Law at the Gonzaga University School of Law, where she teaches Evidence, Individual Federal Income Tax, Taxation of Exempt Organizations, Wills and Trusts, and Litigation Skills and Professionalism. In 2007, she won the Orland Professor of the Year at Gonzaga, and later that year she served as a Fulbright Lecturer in Beijing.

Professor Murphy has published several books, with her most recent being People of the State of California v. Phillip Spector Case File. She has also published numerous articles, including:

Federal Rule of Evidence 502 – Inadvertent Disclosure - The “Get-Out-Of-Jail-Free Provision” - Or Is It? - 41 New Mexico Law Review __ (2011);

The Attorney-Client Privilege and Inadvertent Disclosure, Washington State Bar Association, Litigation News, Special Edition: Evidence, spring 2010;

•FRE 502: The Lawyer-Saving Provision for Inadvertent Waivers of Privileges, LexisNexis Emerging Issues Analysis, June 7, 2010; and

Spin Control and the High-Profile Client - Should the Attorney-Client Privilege Extend to Communications with Public Relations Consultants?, 55 Syracuse Law Review 545 (2005).

So, please join me in giving a warm welcome to her.


June 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Quantum Of Stealth: Supreme Court Of Iowa Finds Theft & Burglary W/Intent To Commit Theft Fall Under Rule 5.609(a)(2)

Like its federal counterpart, Iowa Rule of Evidence 5.609(a)(2) provides that

Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.

So, assume that a defendant has prior convictions for theft and burglary with intent to commit theft crimes of dishonesty or false statement, meaning that they are per se admissible under Rule 5.609(a)(2)? According to the recent opinion of the Supreme Court of Iowa in State v. Harrington, 2011 WL 2162817 (Iowa 2011), the answer is "yes." I disagree.

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June 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 14, 2011

Resource Of Interest: Evidence: Skills, Strategies, and Assignments for Pretrial and Trial & The Freck Point Trial DVD

An old Chinese proverb says, "Give a man a fish and you feed him for a day. Teach a man to fish and you feed him for a lifetime." This proverb sums up the approach taken by Marilyn J. Berger, John Mitchell, and Ronald Clark with their new book Evidence: Skills, Strategies, and Assignments for Pretrial and Trial, which is accompanied by a DVD with an excellent simulated trial -- the Freck Point Trial -- and related materials. So, what makes the book such a good tool for use in an Evidence or Trial Advocacy class?

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June 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, June 13, 2011

Demystifying The Myth Of Fingerprints: The NCSTL's Introductory Video And The San Diego Courthouse Bomber Case

The use of fingerprint evidence is always an interesting issue in Evidence and Expert Evidence classes. So, what is the history of fingerprinting? How about SWGFAST? ACE-V? A friction ridge? A few weeks ago, I posted an entry about the fine folks at the National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law and the terrific content that they are producing. Well, they have just put out a terrific two-and-a-half minute video that delves into these and other issues and would serve as a nice introduction to the material in an evidence-related class:

Meanwhile, if you are looking for a solid case that delves into many of these topics, you could do a lot worse than the recent opinion of the United States District Court for the Southern District of California in United States v. Love, 2011 WL 2173644 (S.D. Cal. 2011).

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June 13, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 12, 2011

Call The Doctor: NY Court Addresses Questions About Compensation For Physicians Called As Fact Witnesses

A party can only pay fact witnesses attendance fees, travel expenses, and compensation for their loss of time spent testifying. This is because fact witnesses have a public duty to testify. Conversely, expert witnesses are under no obligation to testify and can be pad commensurate with their special knowledge and skill. But let's say that a party wants to call a physician who is usually called as a expert witness, but the party only wants to call him as a fact witness. Can the party pay the expert an amount commensurate with the amount that he ordinarily receives when he testifies as an expert? According to the recent opinion of the New York Supreme Court, Appellate Division, Second Department in Caldwell v. Cablevision Systems Corp., 2011 WL 2164004 (N.Y.A.D. 2 Dept. 2011), the answer is "no." So, why did the court affirm a verdict against a plaintiff despite a defendant overpaying a physician/fact witness?

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June 12, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, June 11, 2011

The Power Of The Claw: What Are Clawback Agreements And How Popular Are They?

Enacted in 2008, Federal Rule of Evidence 502(b) provides that

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

(1) the disclosure is inadvertent;

(2) the holder of the privilege or protection took reasonable steps to prevent disclosure; and

(3) the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

Meanwhile, Federal Rule of Evidence 502(d) indicates that

A Federal court may order that the privilege or protection is not waived by disclosure connected with the litigation pending before the court—in which event the disclosure is also not a waiver in any other Federal or State proceeding.

Moreover, the Advisory Committee's Note to Rule 502(d) states that

Confidentiality orders are becoming increasingly important in limiting the costs of privilege review and retention, especially in cases involving electronic discovery. But the utility of a confidentiality order in reducing discovery costs is substantially diminished if it provides no protection outside the particular litigation in which the order is entered. Parties are unlikely to be able to reduce the costs of pre-production review for privilege and work product if the consequence of disclosure is that the communications or information could be used by non-parties to the litigation.
There is some dispute on whether a confidentiality order entered in one case is enforceable in other proceedings. See generally Hopson v. City of Baltimore, 232 F.R.D. 228 (D. Md. 2005), for a discussion of this case law. The rule provides that when a confidentiality order governing the consequences of disclosure in that case is entered in a federal proceeding, its terms are enforceable against non-parties in any federal or state proceeding. For example, the court order may provide for return of documents without waiver irrespective of the care taken by the disclosing party; the rule contemplates enforcement of “claw-back” and “quick peek” arrangements as a way to avoid the excessive costs of pre-production review for privilege and work product. See Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 290 (S.D.N.Y. 2003) (noting that parties may enter into "so-called 'claw-back' agreements that allow the parties to forego privilege review altogether in favor of an agreement to return inadvertently produced privilege documents"). The rule provides a party with a predictable protection from a court order--predictability that is needed to allow the party to plan in advance to limit the prohibitive costs of privilege and work product review and retention.
Under the rule, a confidentiality order is enforceable whether or not it memorializes an agreement among the parties to the litigation. Party agreement should not be a condition of enforceability of a federal court's order. (emphasis added).

I have two goals in this post: (1) to discuss the effect of clawback requests and clawback agreements; and (2) to call attention to a blog post with some anecdotal evidence concerning the (in)frequency of clawbacks.

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June 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, June 10, 2011

Dog Day Afternoon: Casey Anthony Trial Raises Questions About Cadaver Dogs

With the Casey Anthony trial, most of America is becoming acquainted for the first time with the "cadaver dog." Here is an excerpt from a CNN article about the cadaver dog's role in the investigation of the death of Caylee Anthony:

A dog trained to locate human remains alerted his handler to them in two locations: the trunk of Casey Anthony's car and a corner of her parents' back yard, the handler testified in Anthony's capital murder trial Tuesday.

On first pass by the dog, Gerus, around Anthony's white Pontiac Sunfire on July 17, 2008, "he started indicating in the rear of the vehicle," said Orange County, Florida, sheriff's Deputy Jason Forgery, a K-9 handler. "I could tell he was working something."

As the dog came around the front of the car, Forgery said he asked that the trunk be opened. When Gerus came around to the trunk, he put his front paws inside, then lay down -- a signal to Forgery that he had detected the scent of remains.

He said Gerus also alerted in the southeast corner of the Anthony back yard. However, during a cross-examination that grew testy at times, Forgery told defense attorney Jose Baez that after technicians had examined the area and scraped the surface of the land, he returned the following day and the dog did not alert in the back yard.

And here is a video clip of some of Forgery's testimony, including an interesting cross-examination by defense counsel regarding the (in)accuracy of cadaver dogs:

I think that most people have more familiarity with drug-sniffing dogs, dogs who track a suspect from a crime scene, and scent-lineup dogs, which are

exposed to the scent from items found at crime scene, and are then walked by a series of containers with samples swabbed from a suspect and from others not involved in the crime. If the dog finds a can with a matching scent, it signals — stiffening, barking or giving some other alert its handler recognizes.

In this post, I have two goals: (1) comparing the qualification of these latter two types of dogs and cadaver dogs for expert testimony purposes; and (2) considering whether dog "searches" should be allowed without warrants under the Fourth Amendment given yesterday's post.

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June 10, 2011 | Permalink | Comments (2) | TrackBack (0)

Thursday, June 9, 2011

Article Of Interest: Thomas Crocker's The Political Fourth Amendment

I have written five previous posts (herehereherehere, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. Invariably, federal courts find that there is no warrant requirement under the Fourth Amendment pursuant to United States v. Knotts, 460 U.S. 276 (1983), and United States v. Karo, 468 U.S. 705 (1984), because a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. See, e.g., United States v. Cuevas-Perez, 2011 WL 1585072 (7th Cir. 2011). State courts are divided on the issue, but not based upon differing interpretations of the Fourth Amendment. Instead, while some courts adhere to federal precedent, other courts find that attaching a GPS device to a suspect's vehicle without a warrant violates state constitutional law provisions (for instance, Massachusetts found such an attachment to be a seizure under its state constitution).

Neither the majority nor the concurring opinion in Foltz v. Commonwealth, 706 S.E.2d 914 (Va.App. 2011), deviated from standard operating procedure, but the concurring opinion suggested a fundamental recalibration of how we think of the Fourth Amendment. The same goes for a terrific recent article, The Political Fourth Amendment, 88 Wash. U. L. Rev. 303 (2010), by Thomas Crocker, a professor at the University of South Carolina School of Law. This post will consider the trenchant arguments made by both the opinion and the article.

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June 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 8, 2011

Higher Learning: EDVA Finds Documents Submitted Without Expert Testimony Not Admissible As Learned Treatises

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for learned treatises. Specifically, it provides an exception

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

Thus, learned treatises can be admitted but only in conjunction with expert testimony, which created a problem for the plaintiff in Hogge v. Stephens, 2011 WL 2161100 (E.D.Va. 2011).

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June 8, 2011 | Permalink | Comments (1) | TrackBack (0)

Tuesday, June 7, 2011

Judge Advocate?: Court Of Appeals Of Indiana Refuses To Become An Advocate For Defendant In Connection With Waived Rule 609(b) Argument

Indiana 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, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, let's say that a defendant is convicted of unlawful possession of a firearm by a serious violent felon in August 2010 without prior notice by the prosecution. And let's say that at trial, the prosecution impeached the defendant with evidence of his 1970 conviction for burglary. Finally, let's say that the defendant later appeals, claiming, inter alia, claiming that the introduction of evidence of his prior conviction deprived him of the presumption of innocence, but, as at trial, he makes no reference to the prosecution's lack of notice. What should the appellate court do? According to the recent opinion of the Court of Appeals of Indiana in Teague v. State, 2011 WL 2138887 (Ind.App. 2011), the answer is "absolutely nothing."

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June 7, 2011 | Permalink | Comments (1) | TrackBack (0)

Monday, June 6, 2011

When Innocence Is Pink: Why There Is A Gender Gap In Exonerations Of The Wrongfully Convicted And Efforts That Might Shrink It

There are over 60 innocence projects nationwide, and they do tremendous work. According to the Cardozo Innocence Project website, "There have been 271 post-conviction DNA exonerations in United States history." The Innocence Project has profiles of each of the exonerees and their cases on its website, and these profiles provide both a compelling read and a powerful indictment of the criminal justice system in this country.

Until I read Sandra Svoboda's article, When innocence is pink, however, I hadn't noticed something very important about these exonerees: Only 4 of them are women. When you think about this for a second, it make sense. In her article, Svoboda begins by telling the tale of Julie Rae Harper's wrongful conviction for murder and her ultimate exoneration and then notes that

While much attention has been given to the hundreds of men who have been exonerated of rapes and murders by DNA evidence during the last decade, Harper is among the handful of wrongly convicted women who have had their cases re-examined and their guilty verdicts changed without the relative luxury of such science and forensic proof.

The goal of this post is two-fold: First, I want to highlight some of the most interesting parts of Svoboda's article. Second, I want to discuss two efforts that could lead to a shrinking of the exoneration gap.

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June 6, 2011 | Permalink | Comments (0) | TrackBack (0)