EvidenceProf Blog

Law & Crit, Take 5: Sharon Stone's "Last Dance" & Oregon's Death Penalty Moratorium

In today's post in her ongoing Pop Culture and the Death Penalty project, Alyssa Rosenberg addresses Sharon Stone's "Last Dance." According to Rosenberg,

it’s a pretty terrible movie, chock-full of sassy black death row inmates who call Stone’s sweet former-addict killer "girl" a lot, a weak-sauce and sentimental discussion of racial and economic disparities in the death penalty, and a lot of thick-accented callous Southern stereotypes. But it does a couple of things that I think are interesting, even if I don’t think it does them particularly well.

First is the way it addresses lingering discomfort with executing women. Sam, the head of the appeals office...;

Second, there’s the question of how race and class interact in the death penalty...;

the ridiculousness and cruelty of our last-minute appeals process.

Conversely, one of the things that the movie gets (very) wrong is that its primary focus is not on Stone's character but on the spiritual journey taken by her attorney (who comes off as the idiot younger brother of Frank Galvin from "The Verdict"), a journey that ends with "an Annie Lennox-scored trip to the Taj Mahal in her memory...." As Anthony Paul Farley wrote in Amusing Monsters, 23 Cardozo L. Rev. 1493 (2002),

In Last Dance, the conflict within the heart of the condemned murderer, played by Sharon Stone, has been resolved long before the narrative begins. The observer, a wealthy white man played by Rob Morrow, appears as a suitor in need of a philosopher, and he finds her in Stone. His desperate attempts to save her from the Leviathan's lethal injection, which she is as willing to receive as was Socrates to receive the hemlock prescribed him by his fellow Athenians, fail. In his failure, however, he succeeds in making peace with himself and, as we are led to imagine, his own struggle on behalf of forgiveness and against vengeance. Our own role, Leviathan's role, in producing the conditions that lead to the body of the death that occasioned the making of the film and our own entry into the dark of the cathedral, the theatre, is never seriously addressed.

So, why does this make me think about Governor John Kitzhaber's decision to place a moratorium on the death penalty in Oregon? 

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Substance & Style, Take 2: Katharine Traylor Schaffzin On The Restyled Rules Of Evidence

Below is the second in a series of three guest posts by Katharine Traylor Schaffzin on the restyled Federal Rules of Evidence:

Sacred Formatting: Why the Advisory Committee Chose Not to Reformat Rule 803

In restyling the Federal Rules of Evidence, the Advisory Committee on Evidence Rules resolved to amend the rules to make them more easily understandable and to achieve consistency in style and terminology.  The Committee aimed to achieve uniformity in formatting across all the rules of practice and procedure.  To accomplish this, they applied a familiar outlining format including progressively indented subparagraphs, hanging indents, and substituting vertical lists for horizontal lists.  Formatting revisions of this type abound in Rule 801.

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Substance & Style: Katharine Traylor Schaffzin On The Restyled Rules Of Evidence

Back in March, I posted an entry about Katharine Traylor Schaffzin and her terrific article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000). Professor Schaffzin's article dealt with the new restyled Federal Rules of Evidence set to take effect on December 1, 2011. At the time, I promised that Professor Schaffzin would have a few guest posts on the new Rules around the time that they took effect. Below is the first of these guest posts:

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Give It A Shot: Northern District Of Texas Finds Printout Of Screen Shot Satisfies Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

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

So, let's say that a litigant takes a screen shot of a web page, prints out the screen shot, and then seeks to introduce the printout into evidence. Does the printout satisfy the Best Evidence Rule? According to the recent opinion of the United States District Court for the Northern District of Texas in Conceal City, L.L.C. v. Looper Law Enforcement, LLC, 2011 WL 5557421 (N.D.Tex. 2011), the answer is "yes."

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Did You Get My Message: Court Of Appeals Of Ohio Finds No Error W/Admission Of Handwritten Transcripts Of Text Messages Under Rule 803(5)

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

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

So, let's say that the victim and the defendant send e-mails back and forth on the same night that the defendant allegedly committed a burglary and other crimes. And let's say that, in the wake of the crimes charged, the victim handwrote transcripts of the text messages. At trial, can the victim read the transcripts pursuant to Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District, in State v. Roseberry, 2011 WL 5588725 (Ohio App. 8 Dist. 2011), the answer is "yes."

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Resident Evil?: Colorado Court of Appeals Finds 1st Year Resident Qualified As "Expert Of Medicine"

Similar to its federal counterpart, Colorado Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

So, can a first-year resident be qualified as an "expert of medicine" under Rule 702? According to the recent opinion of the Colorado Court of Appeals, Div. I. in People ex rel. Strodtman, 2011 WL 5084951 (Colo.App. 2001), the answer is "yes."

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The Space Between: Judge Takes Judicial Notice Of Google Maps Distance In Mob & Thanksgiving Related Case

Judicial notice is a doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Federal Rule of Evidence 201(b) provides that

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

So, let's say that a member of a crime family is charged with several crimes, including conspiring to kill a victim. And let's say that the defendant claims that the prosecution erred by failing to disclose to him police reports that contradict testimony given by a key witness for the prosecution regarding exactly where the the victim was on the day of the murder. Can the court take judicial notice of the distance between 2 locations based upon a search on Google Maps? According to the recent opinion of the United States District Court for the Eastern District of New York in United States v. Sessa, 2011 WL 256330 (E.D.N.Y. 2011), the answer is "yes."

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We The Jury, Take 2: Western District Of Pennsylvania Denies Habeas Corpus In Racist Juror/Death Penalty Case

Three years ago, I posted an entry about the case of Roland Steele. I then used Steele's case as the launching point for my article, Dismissed with Prejudice. Here's what I wrote about Steele's case in my article:

After a jury trial in Pennsylvania in 1986, Roland William Steele, an African-American man, was convicted of three counts of first-degree murder and related charges based upon his alleged killings of three Caucasian women. In 1996, he unsuccessfully filed a Post-Conviction Relief Act (PCRA) petition, in which he claimed, inter alia, “that his due process rights and right to a fair and impartial jury were violated by the racial prejudice of one of the jurors.” The basis for Steele’s petition, which the PCRA court deemed inadmissible, was the declaration of a juror, “who stated that race was an issue from the inception of the trial. The juror stated in his declaration that ‘early in the trial one of the other jurors commented on the race of the defendant.’” According to the declaration, the racist juror “‘also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty.’” The juror additionally alleged that the racist juror’s “‘comments continued at other breaks and he made very racist remarks. First one juror, then two or three more gradually became drawn to his position as the first week wore on.’” Finally, the declaration asserted that the racist juror said during trial that Steele should “‘fry, get the chair or be hung.’”

Devastatingly, the racist juror’s death wish will likely come true because Steele was given three separate death sentences. In 2008, Steele’s appeal from the PCRA court’s ruling finally reached the Supreme Court of Pennsylvania, which found in Commonwealth v. Steele that it could not consider the juror’s declaration. The court noted that under Pennsylvania Rule of Evidence 606(b):

Upon an inquiry into the validity of a verdict,...a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

According to the Supreme Court of Pennsylvania, this Rule precluded the admission of the juror’s declaration because its exceptions apply only to “outside influences, not statements made by the jurors themselves.”

Recently, Steele filed a petition for writ of habeas corpus with the United States District Court for the Western District of Pennsylvania. So, how did he fare?

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The Claim: 3rd Circuit Lays Out Principles For Deciding When There's A Claim For Rule 408 Purposes

Federal Rule of Evidence 408 provides that

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

So, Rule 408 precludes the admission of evidence of, inter alia, settlements negotiations connected to "a claim that was disputed as to validity or amount" when offered for certain purposes. But at what point is there a "claim for Rule 408 purposes. If Dan allegedly breached a contract with Paul and Paul brings a lawsuit against Dan, obviously there is a claim. But what if Paul merely threatens to bring a lawsuit? Or what if Paul intimates that he might sue but doesn't actually threaten litigation? What's the standard for determining whether there is a claim? Well, let's take a look at the recent opinion of the Third Circuit in ECEM European Chemical Marketing B.V. v. Purolite Co., 2011 WL 5517319 (3rd Cir. 2011).

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Can I Ask You A Question?: Court Of Special Appeals Of Maryland Approves Jury Questions

A defendant is on trial for first-degree murder. During trial, the judge takes questions from the jury and asks them to jurors. Here are two examples:

To an Eyewitness for the Prosecution

First

THE COURT: And sir, what effect, if any, did the fact that he had cornrows in that photographs have on your determination of whether or not to pick out that photograph?

THE WITNESS: Well, I have to say, of course, it was part of the, the whole picture, but the facial expression, the, it looks like the, the overall body size, just the face in general, the complexion, that taken into account as a whole, including the cornrows is what—

THE COURT: Okay. That was a juror's question.

Second

THE COURT: Sir, when you saw, were you able, saw the shooting, were you able to look directly at the shooter's face?

THE WITNESS: Yes. Yes, sir.

THE COURT: Is that as he ran by you?

THE WITNESS: Well, they were, when he started the shooting and then as he ran by, the, as he ran by was, he wasn't looking at the medic unit, but he was, you know, at a slight angle maybe looking down, but I had a good view of his face. The time when I saw his face fully as closely as it would represent the mug shot was when he came from the left side of Mr. Jones and started shooting, and then started running past us.

THE COURT: All right. That was a juror's question.

Was this proper? According to the recent opinion of the Court of Special Appeals of Maryland in Handy v. State, 2011 WL 5084570 (Md.App. 2011), the answer is "yes."

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A History Of Violence: 4th Circuit Deems Evidence Of Wife's Alleged Habitual Violence Inadmissible Under Rule 406

Federal Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

So, let's say that a defendant is charged with interstate domestic violence and seeks to present evidence of his wife's habitual violent nature. Would that evidence be admissible under Federal Rule of Evidence 406? According to the recent opinion of the Fourth Circuit in United States v. Hurley, 2011 WL 5588810 (4th Cir. 2011), the answer is "no."

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Things We Lost In The Fire: NY Opinion Reveals That The State Bars Evidence Of Subsequent Remedial Measures

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.

And while New York doesn't have codified rules of evidence, the recent opinion of the Supreme Court of New York, Appellate Division, First Department in Stolowski v. 234 East 178th Street LLC, 2011 WL 5527716 (N.Y.A.D. 1 Dept. 2011), makes clear that the state similarly deems evidence of subsequent remedial measures inadmissible subject to certain exceptions.

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Book 'Em Danno, Take 2: Court Of Appeals Of Colorado Finds Rule 803(8)(B) Doesn't Bar Admission Of Booking Reports

Similar to its federal counterpart, Colorado Rule of Evidence 803(8) provides an exception to the rule against hearsay for

(8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or date 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.

So, let's say that the prosecution wants to introduce booking reports and a mittimus against a defendant. Are these documents admissible under Colorado Rule of Evidence 803(8)(A) or are they inadmissible under Colorado Rule of Evidence 803(8)(B)? According to the recent opinion of the Colorado Court of Appeals of Colorado, Div. VI in People v. Warrick, 2011 WL 5089464 (Colo.App. 2011), they're admissible.

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Where There's Smoke: Will Evidence Of Other Acts Of Child Molestation Be Admissible Against Jerry Sandusky?

An e-mail on the Evidence Professor listserv yesterday raised an interesting question: When former Penn State assistant football coach Jerry Sandusky is tried criminally and likely civilly for acts of child molestation, will evidence of uncharged/other acts of child molestation be admissible under the Pennsylvania Rules of Evidence? I think that the answer is likely "yes," but the question of admissibility won't be as easy as it is under the Federal Rules of Evidence and many other state evidentiary codes.

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Law & Crit, Take 4: Patty Jenkins' "Monster" And The "Monster" In All Of Us

I'm working with a couple of high school students on a project related to the insanity defense, and today I gave them Russell D. Covey's terrific new article, Temporary Insanity: The Strange Life and Times of the Perfect Defense to read. The focus of their project is on how mental disorders truly impact people and their judgment and under what circumstances a defendant should be found not guilty by reason of insanity. Based upon Professor Covey's article, we had an interesting discussion about how the legal system should treat those claiming insanity and how it should treat those claiming temporary insanity. 

In a certain sense, it seems easier for judges or jurors to put themselves into the shoes of a person pleading temporary insanity. Sure, the judge/juror might never have been molested as a child, but if one of the children allegedly molested by Jerry Sandusky killed him and claimed temporary insanity, it wouldn't be too difficult for the judge/juror to intuit what was basically going through the defendant's head even if the judge/juror could never truly grasp the depth and the breadth of the psychological damage done (more on this case tomorrow). And a judge/juror may never have fought in a war, but if a recent veteran charged with murder claims temporary insanity/PTSD, that judge/juror probably has a sense that war is hell (on the soldier), even if the magnitude of the soldier's suffering cannot be fully grasped. Conversely, unless a judge/juror has a history of schizophrenia, borderline personality disorder, etc. in his family, he likely has no idea what was going through the head of a defendant claiming a traditional insanity defense based upon one of these conditions.

This, of course, is not a problem unique to the insanity defense. To serve as a juror in a capital case, you must be death-qualified. But being death-qualified doesn't mean that you need any special education, training, or experience to decide between life (in prison) and death; it simply means that you must be willing to impose the death penalty based upon balancing aggravating and mitigating factors. Let's say that you're a capital juror and the defendant/murder was physically abused as a child. Let's say that she was raped. If you haven't suffered from a history or violence, would you have the ability to get inside the head of the defendant, to decide whether her life should be spared? 

This leads me to Alyssa Rosenberg's post today in her Pop Culture and the Death Penalty Project, which deals with Patty Jenkins' "Monster."

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A Picture Is Worth A Thousand Words: Court Of Appeals Of Iowa Fails To Resolve Whether Facebook Photos Trigger Rape Shield Rule Analysis

Similar to its federal counterpart, Iowa Rule of Evidence 5.412a, Iowa's rape shield rule,

Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual abuse is not admissible.

A grandfather is charged with sexual crimes against his granddaughter based upon acts committed starting in 2004 when she was 8 years-old. At trial, the grandfather wants to introduce into evidence three photographs posted to a Facebook page in 2010 depicting: (1) the alleged victim holding several condoms and her mother standing behind her; (2) the alleged victim inflating a condom like a balloon; and (3) the alleged victim's mother making a gesture with her hand/face that could be interpreted as a sexual gesture. Do these photographs depict "sexual behavior," rendering them inadmissible under the rape shield rule? That was a question that the Court of Appeals of Iowa didn't (have to) answer in its recent opinion in State v. Parker, 2011 WL 5387212 (Iowa App. 2011).

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The Areas of My Expertise: Court Of Appeals Of Texas Finds Rule 702 Objection Didn't Preserve Rule 701 Issue

Texas Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Meanwhile, Texas Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Finally, Texas Rule of Evidence 103(a)(1) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.

So, let's say that a defendant objects that a police officer's opinion testimony is inadmissible because he was not an expert witness under Rule 702. And let's say that the court's response is that the police officer could offer lay opinion testimony under Rule 701. Has the defendant preserved the issue of the admissibility of the officer's testimony under Rule 701? According to the recent opinion of the Court of Appeals of Texas, Waco, in State v. Simmons, 2011 WL 5247891 (Tex.App.-Waco 2011), the answer is "no." I disagree.

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Come Be My Conspiracy: Does The Co-Conspirator Admission Rule Only Cover The Charged Conspiracy?

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

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

So, under this co-conspirator admission rule, is a co-conspirator's statement only admissible against a defendant if the statement was made during the course and in furtherance of the conspiracy charged in the indictment, or can a co-conspirator admission made during a different conspiracy also be admissible? This was a question that the Fourth Circuit didn't quite have to answer in its recent opinion in United States v. Medford, 2011 WL 5317751 (4th Cir. 2011), but it seems that there is no "same conspiracy" requirement under Rule 801(d)(2)(E).

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Best Of Everything: Bankruptcy Court Finds Best Evidence Rule Doesn't Apply In Bankruptcy Case

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

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

So, let's say that a debtor in a bankruptcy action testifies that she never made a contribution to an IRA and produces account statements for that IRA that cover a certain stretch of time but does not produce statements that cover another stretch of time. Does the testimony violate the Best Evidence Rule? According to the recent opinion of the United States Bankruptcy Court for the District of Massachusetts in In re LeClair, 2011 WL 5282605 (Bkrtcy.D.Mass. 2011), the answer is "no."

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The Prisoner: United States District Court for the District Of Idaho Refuses To Appoint Expert In Prisoner Case

Federal Rule of Evidence 706(a) provides that

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

The word "may" is the key word in this Rule as courts are under no obligation to appoint experts except in some cases involving scientific evidence or complex issues. So, if a prisoner sues a correctional facility, claiming that its officials were deliberately indifferent to his serious medical needs, does the court need to appoint an expert under Rule 706(a)? According to the recent opinion of the United States District Court for the District of Idaho in Orr v. Valdez, 2011 WL 4239223 (D.Idaho 2011), the answer is "no."

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