EvidenceProf Blog

Forfeit Victory, Take 2: Court Of Appeals Of Michigan Finds Statements From DV Complaints Improperly Admitted Under Forfeiture Doctrine

Following up on yesterday's post about the possibility of a different rule for domestic violence cases under the doctrine of forfeiture by wrongdoing, I present to you the recent opinion of the Court of Appeals of Michigan in People v. Logan, 2012 WL 3194222 (Mich.App. 2012).

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Forfeit Victory: Supreme Court Of Kansas Refuses State's Attempt To Carve Out Different Forfeiture Rule For DV Cases

As I have noted before, in Giles v. California, the Supreme Court made several references to the interplay between the doctrone of forfeiture by wrongdoing and domestic violence. In their concurring opinion, Justices Souter and Ginsburg noted that

Examining the early cases and commentary, however, reveals two things that count in favor of the Court's understanding of forfeiture when the evidence shows domestic abuse. The first is the substantial indication that the Sixth Amendment was meant to require some degree of intent to thwart the judicial process before thinking it reasonable to hold the confrontation right forfeited; otherwise the right would in practical terms boil down to a measure of reliable hearsay, a view rejected in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The second is the absence from the early material of any reason to doubt that the element of intention would normally be satisfied by the intent inferred on the part of the domestic abuser in the classic abusive relationship, which is meant to isolate the victim from outside help, including the aid of law enforcement and the judicial process. If the evidence for admissibility shows a continuing relationship of this sort, it would make no sense to suggest that the oppressing defendant miraculously abandoned the dynamics of abuse the instant before he killed his victim, say, in a fit of anger. 

Meanwhile, in his plurality opinion, Justice Scalia pointed out that

Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify. This is not, as the dissent charges,...nothing more than "knowledge-based intent."

So, in Giles, did the Court "carve out a different rule for domestic violence cases", as the State argued in State v. Belone, 2012 WL 4227635 (Kan. 2012)? According to the Supreme Court of Kansas, the answer is "no."

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Call Me: Court Of Appeals Of Utah Finds Husband's 276 Calls To Wife Triggered Forfeiture By Wrongdoing

Based upon acts allegedly committed by a husband against his wife and daughter, the husband is charged with aggravated kidnapping, aggravated assault, and domestic violence in the presence of a child. Immediately after the incident leading to these charges, the wife calls the police, who photograph the scene of the crime and the injuries suffered by the wife, who also gives two witness statements to the police. As a result of the crimes charged, the court enters a no-contact order against the husband, who nonetheless calls the wife 276 times in advance of trial. When the husband's trial commences, the wife invokes the spousal testimonial privilege and refuses to testify against the husband. Can the prosecition now introduce the wife's statements to the police under the doctrine of forfeiture by wrongdoing? According to the recent opinion of the Court of Appeals of Utah in State v. Zaragoza, 2012 WL 4450360 (Utah App. 2012), the answer is "yes."

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Friendship Request, Take 2: Court Of Appeals Of Utah Finds District Court Improperly Deemed Facebook Screenshots Inadmissible

In a custody dispute, a doctor testifies on behalf of the father, and the court eventually grants temporary custody of the child to the father, and, following a hearing, orders joint legal and joint physical custody of the child to the father and the mother. The mother thereafter appeals and claims that the district court erred by precluding her from introducing screenshots from Facebook that allegedly revealed that that the doctor and one of the father's attorneys had a friendship that, if established, would cast doubt on the impartiality of the doctor's recommendations. How should the court rule? Let's look at the recent opinion of the Court of Appeals of Utah in Black v. Hennig, 2012 WL 412112 (Utah App. 2012).

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Friendship Request: Supreme Court Of Kentucky Finds Jurors Being Facebook "Friends" With Victim's Mother Not Per Se Prejudicial

A defendant is charged with murder and related crimes. While the jury is being selected, two prospective jurors indicate that they do not know the victim, her family, or the circumstances of the case. After the jury convicts the defendant of the crimes charged, it is revealed that the jurors were in fact Facebook "friends" with the victim's mother during the defendant's trial (despite one of the jurors denying that she even had a Facebook account). What should the court do? Let's look at the recent opinion of the Supreme Court of Kentucky in Sluss v. Commonwealth, 2012 WL 4243650 (Ky. 2012).

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Memory Loss: Court Of Appeals Of Louisiana Deems Officer Who Was Shot & Had Stroke "Unavailable"

Similar to its federal counterpart, Louisiana Rule of Evidence 804(b)(1) provides a hearsay exception for 

Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a party with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.  Testimony given in another proceeding by an expert witness in the form of opinions or inferences, however, is not admissible under this exception.

And, similar to its federal counterpart, Louisiana Rule of Evidence 804(b)(1) only applies if a witness is "unavailable." So, let's say that a police officer investigates a car accident, gives a deposition, and then is shot and suffers a stroke. If the gunshot and stroke limit the officer's ability to remember the accident, is he "unavailable" for Rule 804 purposes? Let's take a look at the recent opinion of the Court of Appeal of Louisiana, First Circuit, in Walley v. Vargas, 2012 WL 4320233 (La.App. 1 Cir. 2012).

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Foreign Affairs: 9th Circuit Finds Foreign Record Certification Not "Testimonial" For Confrontation Clause Purposes

Federal Rule of Evidence 902(11) provides that the following is self-authenticating:

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, is a Rule 902(11) certification "testimonial," meaning that the preparer of such a certification must testify at a criminal trial to satisfy the Confrontation Clause? And what about a certification for a foreign record? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Anekwu, 2012 WL 4125861 (9th Cir. 2012).

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Make Me Whole, Take 11: Court Of Appeals Of Minnesota Finds No Problem With Exclusion Of Victim's Conviction

I have done ten prior posts (here, here, here, here, here, here, here, here, here, and here) about how Minnesota courts have completely botched their analysis of Minnesota Rule of Evidence 609(a)(1). In my most recent post on the subject, I noted how Minnesota courts have made it so that a prior felony conviction that is not more than ten years old will (almost) always be admissible against a criminal defendant, regardless of whether the underlying crime has anything to do with witness honesty. So, what happens when it is a criminal defendant who wants to impeach a witness for the prosecution (and specifically the victim) under Rule 609(a)(1)? Let's look at the recent opinion of the Court of Appeals of Minnesota in State v. Meeks, 2012 WL 4052371 (Minn.App. 2012), to see Minnesota's latest miscarriage of justice.

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Unauthorized Transfer, Take 5: Court Of Criminal Appeals Of Tennessee Rejects Transferred Intent Doctrine Of Forfeiture By Wrongdoing

In my recent writings about the doctrine of forfeiture by wrongdoing, I have focused upon cases that have either explicitly or implicitly applied transferred intent principles to the doctrine. I thought that with today's post, I would focus upon a case that (kind of) falls on the other side of the issue. So, let's take a look at the opinion of the Court of Criminal Appeals of Tennessee in State v. Ivy, 2004 WL 3021146 (Tenn.Crim.App. 2004).

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Doing Bad All By Itself: 9th Circuit Finds Deportation Of Defense Witness Triggered Forfeiture By Wrongdoing

In my recent posts on forfeiture by wrongdoing, I've been focused upon cases in which the defendant causes the unavailability of a prospective witness, meaning that he has forfeited his hearsay and Confrontation Clause objections to the admission of that witness' statements. As the Advisory Committee Note to Federal Rule of Evidence 804(b)(6) makes clear, however, "[t]he rule applies to all parties, including the government." For an example of a case in which the government forfeited its right to object to the defendant's admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).

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Available For A Limited Time: Court Of Appeals Of North Carolina Applies Forfeiture By Wrongdoing To Aborted Testimony

The opinion of the Court of Appeals of North Carolina in State v. Weathers, 724 S.E.2d 114 (N.C.App. 2012), was the first North Carolina opinion to apply the doctrne of forfeiture by wrongdoing, and there's something pretty interesting about the opinion:  The statements admitted under the dotrine consisted of the witness' aborted testimony at trial.

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Essay Of Interest: Valena Beety's The Case of Trayvon Martin and the Need for Eyewitness Identification Reform

You know that something is having a deep impact when it starts coming up in conversations that are at most tangentially related to it. You're eating at a restaurant serving some cajun food, and you overhear people at an adjacent table engaging in a heated discussion about the movie "Beasts of the Southern Wild." You're at a university-wide orientation and talking to the new curator at the Moving Image Research Collections, and the topic somehow turns to "Beasts of the Southern Wild." You're watching a New Orleans Saints football game, and what comes up? You guessed it: "Beasts of the Southern Wild." In these situations, when you can almost feel a palpable buzz emanating from something, you just know that it is something that is having a real effect on people and perhaps changing the way that they view things. Such is the case with the recent opinion of the Supreme Court of New Jersey in State v. Henderson, 27 A.3d 872 (N.J. 2011). 

As noted by Professor Valena Beety in her essay, The Case of Trayvon Martin and the Need for Eyewitness Identification Reform (Denver University Law Review, forthcoming),

In  State v. Henderson, the New Jersey Supreme Court...reformed its test for the admissibility of eyewitness identification evidence. The opinion relied on decades of scientific research, emphasizing the growth in knowledge since the standing admissibility test had been established. In raising the bar for admitting eyewitness identification evidence, the Court recognized the previous approach needed to be updated. The Court incorporated empirical evidence to find the current admissibility standard was not in keeping with due process obligations under the New Jersey Constitution.

The Court in Henderson specifically addressed estimator variables - visibility, age of the viewer, lighting - and system variables - such as line up procedures and police interaction. The Court focused primarily on the system variables, and changing police protocol because they are factors "within the control of the criminal justice system." 

So, how do I know that Henderson is primed to have a big impact? Consider State v. Ferguson, 804 N.W. 586 (Minn. 2011), in which the Supreme Court of Minnesota reversed a defendant's murder conviction because the trial court erroneously precluded him from presenting alternate-perpetrator evidence. This meant that the court did not need to address the defendant's argument that the trial court also erred in precluding him from calling an expert witness to testify about the unreliability of eyewitness identification. Nonetheless, in his concurring opinion, Justice Paul Anderson engaged in a lengthy discussion of Henderson, found that it was "an opinion likely to become an important benchmark on the limitations of eyewitness identification," and noted that

if Ferguson offers eyewitness identification expert testimony on remand, I hope that the district court will carefully consider whether the defects in the photo lineup procedure used here and the recent developments in social science require admission of eyewitness identification expert testimony and/or a cautionary jury instruction. Moreover, the court should look closely at New Jersey's safeguards and determine if those safeguards are appropriate here. Specifically, the court should consider the reliability of the eyewitness identification in light of the recent New Jersey Supreme Court decision, in addition to the factors our court has set out in Miles and Helterbridle. If the expert eyewitness testimony is not "otherwise appropriate," the court should consider alternative approaches to educating jurors on the variables that "can lead to misidentifications."...As our courts and jurors grow to understand the science of eyewitness identification, we can better meet the "'twofold aim...that guilt shall not escape or innocence suffer.'" 

Even in the Westlaw era, it is impressive that an opinion by the Supreme Court of New Jersey could have such an impact on a judge on another court over 1,000 miles away less than two months later. So, what exactly are estimator variables and system variables? What are the problems with eyewitness identifications, and particularly cross-racial identifications? And what can the Trayvon Martin case tell us about all of this? Let's take a look at Professor Beety's essay.

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Who Let The Dogs In?: Professor Leslie Shoebotham's Amici Brief For Harris v. State

Back in July, I posted an entry about a terrific amici curiae brief (2012 WL 2641847 (2012)) written by Leslie Shoebotham, an Associate Professor at the Loyola University New Orleans College of Law, for Jardines v. State, 73 So.3d 34, 49 (Fla. 2011), one of two drug sniffing dog cases being heard by the United States Supreme Court.  The second of those cases is Harris v. State, 71 So.3d 756 (Fla. 2011), and Professor Shoebotham has now drafted a piercing amici curiae brief in that case as well. See Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, 2012 WL 3864280 (2012) [Download Harris Amici Brief]. The issue in Harris is: "Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle." The real question, though, is whether a dog's "certification alone" is sufficient for a positive alert to establish probable cause. And, according to Professor Shoebotham's brief, the answer to that question is a clear "no."

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Persons Unknown: Professor Jessica Smith On Williams v. Illinois & The Confrontation Clause

The Supreme Court's most recent Confrontation Clause opinion -- Williams v. Illinois -- was issued while I was in the process of moving from Illinois to South Carolina, so I never really got the chance to address it on this blog. I did preview Williams in a prior post and correctly concluded that the Court would find no Confrontation Clause violation. But while I was right on the results, I was wrong on the reasoning, which is unsurprising giving that the post-Crawford Confrontation Clause framework seems to change from case to case. And, with the Court's fractured opinion in Williams, none of this is likely to change. So, what did the Court hold in Williams? Let's take a look at Confrontation Clause Update: Williams v. Illinois and What It Means for Forensic Reports (Download Confrontation Clause Update), by Professor Jessica Smith of the University of North Carolina School of Government.

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Victim Of Circumstance?: Is Circumstantial Evidence Sufficient To Survive Summary Judgment In Products Liability Case?

The Supreme Court of South Carolina recently issued an interesting opinion in Graves v. CAS Medical Systems, Inc., 2012 WL 3793263 (S.C. 2012), an opinion that may very well have been shaped by an amicus curiae brief submitted by several law professors. In Graves, the circuit court had found that a plaintiff in a design defect case cannot survive a motion for summary judgment through soleley circumstantial evidence. So, what did the South Carolina Supremes find?

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Unauthorized Transfer?, Take 4: State v. Supanchick & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

In a comment to a prior post, a reader ask that I consider State v. Supanchick, 263 P.3d 378 (Or.App. 2011), which is currently on appeal to the Supreme Court of Oregon. Supanchick deals with a lot of the issues that I have been discussing over the last week or so, including whether transferred intent applies to forfeiture by wrongdoing and whether the defendant's sole or primary purpose must be to render the declarant unavailable.

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Announcement For The The Central States Law Schools Association 2012 Scholarship Conference

Annual Scholarship Conference

October 19-20

Cleveland-Marshall College of Law

The Central States Law Schools Association 2012 Scholarship Conference will be held October 19 and 20, 2012 at the Cleveland-Marshall College of Law, in Cleveland, Ohio.  We invite law faculty from across the country to submit proposals to present papers or works in progress.

The purpose of CSLSA is to foster scholarly exchanges among law faculty across legal disciplines.  The annual CSLSA conference is a forum for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment.  More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. 

To allow scheduling of the conference, please send an abstract of no more than 500 words to Secretary Missy Lonegrass at [email protected] by September 22, 2012. Any late submissions will be considered on a space available basis only.   

For those who are interested, the CSLSA mentorship program pairs interested junior scholars with more senior mentors in their fields of expertise to provide feedback on their presentations or papers.  To participate in the mentorship program as either a mentor or mentee, please contact Vice-President Elizabeth Young at [email protected].

In keeping with tradition, CSLSA is able to pay for one night’s lodging for presenters from member schools.  If a school is interested in joining CSLSA and has not received an invoice, please contact Treasurer Carolyn Dessin at [email protected].

For more information about CSLSA, visit our website at http://cslsa.us/.

That's Just Wrong: Court Of Appeals Of Texas Finds Forfeiture By Wrongdoing Despite No Direct Evidence Of Threat

Sticking with the forfeiture theme from the last several days, the recent opinion of the Court of Appeals of Texas, Austin, in Garcia v. State, 2012 WL 3795447 (Tex.App.-Austin 2012), raises an interesting question: Can there be forfeiture by wrongdoing when the State concedes that there was no direct evidence that the defendant made a direct threat to a witness not to testify? According to the court, the answer is "yes."

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My New Essay: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing

Well, after posts ther last several days about the Drew Peterson conviction and the transferred intent doctrine of forfeiture by wrongdoing, I finally put my thoughts together in essay entitled, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing. That essay is now available on SSRN. Here is the abstract:

On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson.  Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution.  In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.

The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context:  When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial).  But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial?  This essay contends that the Supreme Court’s opinion in Giles v. Califonria endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit. 

-CM

Unauthorized Transfer, Take 3: Justice Scalia's Giles Opinion & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Justice Scalia: I had thought that the common law rule is that you have to have rendered the...intentionally rendered the witness unavailable with regard to the particular trial that’s before the court.

Not rendering the witness unavailable for some other litigation.

Mr. Burkhardt: That was--

Justice Scalia: Do you know of any case where it was some other litigation that--

Mr. Burkhardt: --No.

Justice Scalia: --I didn't think so.

Mr. Burkhardt: No.

That is the common law. 

Exchange between Justice Scalia and petitioner's attorney Marilyn Burkhardt during oral argument in Giles v. California.

Based on this exchange, you might think that Justice Scalia, who wrote the plurality opinion in Giles, believes that forfeiture by wrongdoing is simply a witness tampering rule and would not support the transferred intent doctrine of forfeiture by wrongdoing applied in the prosecution of Drew Peterson.

But the Justice's opinion reveals something quite different. Here's footnote 6 of Justice Scalia's opinion:

The dissent identifies one circumstance—and only one—in which a court may determine the outcome of a case before it goes to the jury: A judge may determine the existence of a conspiracy in order to make incriminating statements of co-conspirators admissible against the defendant under Federal Rule of Evidence 801(d)(2)(E). Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), held that admission of the evidence did not violate the Confrontation Clause because it "falls within a firmly rooted hearsay exception"—the test under Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the case that Crawford overruled. In fact it did not violate the Confrontation Clause for the quite different reason that it was not (as an incriminating statement in furtherance of the conspiracy would probably never be) testimonial. The co-conspirator hearsay rule does not pertain to a constitutional right and is in fact quite unusual.  

We do not say, of course, that a judge can never be allowed to inquire into guilt of the charged offense in order to make a preliminary evidentiary ruling. That must sometimes be done under the forfeiture rule that we adopt—when, for example, the defendant is on trial for murdering a witness in order to prevent his testimony. But the exception to ordinary practice that we support is (1) needed to protect the integrity of court proceedings, (2) based upon longstanding precedent, and (3) much less expansive than the exception proposed by the dissent.

Yes, Justice Scalia said what he said during oral argument, but...how can we read this footnote as anything else than an endorsement of the transferred intent doctrine of forfeiture by wrongdoing. Justice Scalia is clearly saying that when a defendant kills a witness to prevent him from testifying at Trial A (e.g., a robbery trial), the doctrine of forfeiture by wrongdoing might apply to allow the prosecution to admit the witness's statements at Trial B (the defendant's trial for murdering witness).

Moreover, I think that Justice Scalia's reasoning might actually make some sense, contrary to my prior post on the issue. Why? Well, I'm tapping out an essay on the issue that I hope to have finished by early next week. 

-CM