EvidenceProf Blog

Doctor, Doctor, Give Me The News, I've Got A Bad Case: Supreme Court Of Tennessee Opinion Addresses Intricacies Of Rule 803(4)

Yesterday, I was talking to Derek Black and Claire Raj when we came upon the topic of Federal Rule of Evidence 803(4), which provides an exception to the rule against hearsay for

A statement that:  

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Part of our discussion involved the proper recipients of such statements. Obviously Rule 803(4) covers statements to a doctor, and the score is the same for statements made to a nurse. But what about statements made to an orderly or administrative personnel? Let's take a lot at the opinion of the Supreme Court of Tennessee in State v. McLeod, 937 S.W.2d 867 (Tenn. 1996), which answers this question, explains a key distinction between Tennessee Rule of Evidence 803(4) and its federal counterpart, and really digs into the nitty gritty of this hearsay exception.

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Unauthorized Transfer, Take 6: Second Circuit Applies Transferred Intent Doctrine Of Forfeiture By Wrongdoing

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for 

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

The opinion of the Second Circuit in United States v. Stewart, 485 F.3d 666 (2nd Cir. 2007), provides yet another example of what I call the transferred intent doctrine of forfeiture by wrongdoing, with the Second Circuit finding that a defendant's intent to render a witness available at one trial transferring to another trial.

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The Statement Doesn't Speak For Itself: Central District Of California Finds Statement Itself Not Enough To Trigger Forfeiture By Wrongdoing

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

A statement that meets the following conditions is not hearsay:....

The statement is offered against an opposing party and:....

(C) was made by a person whom the party authorized to make a statement on the subject;  

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or  

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Rule 801 then goes on to provide that

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

For instance, assume that Carl says to Fred, "Dan and I have agreed to rob the bank on State Street. WIll you drive the getaway car?" If the prosecution seeks to introduce this statement as a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), Carl's statement must be considered but does not by itself establish that he is Dan's co-conspirator. Instead, the prosecution would have to prove that conspiracy through some other evidence.

So, does similar logic apply to the doctrine of forfeiture by wrongdoing? According to the recent opinion of the United States District Court for the Central District of California in U.S. v. $1,026,781.61 in funds from Florida Capital Bank, 2012 WL 5878379 (C.D.Cal. 2012), the answer is "yes."

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Unauthorized Transfer Redux, Part 2: The Negative Component Of Forfeiture By Wrongdoing & Counter-Factual Thinking

As I noted a few days ago, there has been a debate on the Evidence Professor listserv regarding what a party has to prove to trigger application of the doctrine of forfeiture by wrongdoing. My position remains that a party merely has to prove intent + causation. For example, the prosecution would have to prove that a defendant engaged in wrongdoing that (a) was intended to render a prospective witness unavailable, and (b) caused the prospective witness to be unavailable. The opposing school of thought is that a party has to prove intent + causation + benefit. For example, the prosecution would have to prove that a defendant engaged in wrongdoing that (a) was intended to render a prospective witness unavailable; (b) caused the prospective witness to be unavailable; and (c) would benefit from the wrongdoing unless forfeiture applied. Under this analysis, the court would engage in counter-factual thinking to determine whether (c) has been proven. And, under this analysis, forfeiture by wrongdoing would not apply to a defendant who kills a prospective witness to prevent him from testifying at an original trial (e.g., a robbery trial) and who is now on trial for murdering the prospective witness. Why? Without the killing, there could be no murder trial, meaning that the defendant could not derive a benefit from his wrongdoing because there could not even be a murder trial without that wrongdoing.

As I have noted before, however, forfeiture by wrongdoing has both a positive and negative component. And, by looking at the negative component, I think we can again see why it doesn't make sense to engage in counter-factual thinking.

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Unauthorized Transfer, Again: Court Of Appeals Of Indiana Applies Transferred Intent Doctrine Of Forfeiture By Wrongdoing

The question of whether there is a transferred intent doctrine of forfeiture by wrongdoing has occupied this blog quite a bit over the last few months. The series of posts on this topic was prompted by the Drew Peterson case, with the question there being whether Drew Peterson killing two ex-wives to prevent them from testifying at existing or hypothetical future divorce proceedings could lead to application of forfeiture by wrongdoing at his murder trial for killing one of the ex-wives. The answer to that question, at least according to the Illinois courts, was "yes," and now, Illinois' neighbor to the east has reached a similar conclusion based upon similar facts in White v. State, 2012 WL 5875681 (Ind.App. 2012).

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Until My Dying Day: Dying Declarations & Counter-Factual Analysis

In yesterday's post, I gave the following hypothetical:

Dan robs Vince, with William witnessing the crime. Vince goes to the police and tells them that Dan robbed him. Dan is arrested and charged with robbery. Dan, knowing that William could be a witness against him, attacks William. William is taken to the hospital and, after hours of treatment, is in stable condition. He speaks with Police Officer Peters and tells him, "I'll be honest with you. I hate Vince, and I was going to take the witness stand and say that it wasn't Dan who robbed him just to spite Vince. But after what Dan did to me, there's no way I'm going to lie. I saw Dan rob Vince, and Dan tried to kill me today because of what I saw." Later that night, William's condition worsens, and he dies. So, at Dan's robbery trial, should William's statement to Peters be admissible?

My argument was that the statement should be admissible under the doctrine of forfeiture by wrongdoing, with the hypothetical illustrating why I think that courts should not engage in any type of counter-factual thinking when deciding whether the doctrine applies. In the hypothetical, I was careful to have WIlliam making his statement while he was "in stable condition." If WIlliam were in critical condition when he made the statement, the statement could have qualified as a dying declaration under Federal Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

The interesting thing about this dying declaration exception is that courts actually do engage in a counter-factual analysis to determine whether it applies.

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Unauthorized Transfer Redux: Forfeiture By Wrongdoing & Counter-Factual Thinking

There have been some interesting e-mails over the last couple of days on the Evidence Professor listserv. These e-mails deal with a topic that occupied this blog for about a week back in September: What is the status of the doctrine of forfeiture by wrongdoing in the wake of Giles v. California? Readers will recall that in my essay, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing, I argue that Justice Scalia adopted a conception of forfeiture by wrongdoing that requires intent + causation. In other words, forfeiture applies when a party engages in conduct that (a) is intended to render a prospective witness unavailable; and (b) causes the prospective witness to be unavailable. Meanwhile, I argue that the dissent adopted a conception of forfeiture by wrongdoing that requires causation + benefit. In other words, forfeiture applies when a party engages in wrongdoing that (a) causes a prospective witness to be unavailable; and (b) would benefit the party unless the court allowed for the admission of the prospective witness's hearsay statements.

The professor who started this series of e-mails, however, contends that Justice Scalia's vision of forfeiture by wrongdoing (a) requires intent + causation + benefit; and (b) requires that we engage in counter-factual analysis. In other words, forfeiture by wrongdoing only applies when a party engages in conduct that (a) is intended to render a prospective witness unavailable; (b) causes the prospective witness to be unavailable; and (c) would benefit the party unless the court allowed for the admission of the prospective witness's hearsay statements. And the way that we determine whether (c) is satisfied is to compare what actually happened with what would have happened if the party did not engage in the subject wrongdoing. In this post, I will use a hypothetical to explain why I disagree with this reasoning.

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Reelin' In The Years: NJ Court Finds Decade-Old Convictions Admissible In "Black Friday" Case

Pursuant to New Jersey Rule of Evidence 609,

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence. 

But how remote is too remote? Let's take a look at the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Vasquez, 2012 WL 1468614 (N.J.Super.A.D. 2012).

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Home For The Holidays: California Court Refuses New Trial Despite Juror Wanting To Be Home For Thanksgiving

A defendant is convicted of attempted murder. After he is convicted, the defendant moves for a new trial based upon an investigator's declaration.

In that declaration, the investigator stated that Juror No. 5 responded to a letter that he left on her door. When the investigator spoke to Juror No. 5, she told him that she believed at the time of trial that [the defendant] was not guilty. Juror No. 5 also stated that she and other jurors believed that the perpetrators were Black. According to Juror No. 5, jurors discussed the upcoming Thanksgiving holiday, wanting to go home for vacation, and that the trial was taking longer than expected. Lastly, Juror No. 5 informed the investigator that she thought [the defendant] had the right to appeal even if she voted guilty and thus she could be home for Thanksgiving. People v. Toluao, 2012 WL 4497809 (Cal.App. 4 Dist. 2012).

Is the defendant entitled to a new trial?

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Avoiding A Confrontation, Take 3: More Proof That The Bruton Doctrine Is Not A Test Of Constitutional Reliability

As I have noted that last couple of days:

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a defendant's statement that facially incriminates a co-defendant unless the defendant takes the witness stand at trial. In the wake of the Supreme Court's opinion in Crawford v. Washington, however, courts nearly categorically have concluded that the Bruton doctrine only applies to "testimonial" statements, meaning that it does not apply to casual comments to a mother, a brother, a lover, or another acquaintance.

Yesterday, I posted an entry about the Third Circuit's opinion in United States v. Shavers, 693 F.3d 363 (3rd Cir. 2012). In Shavers, the Third Circuit found that the Bruton doctrine does not cover nontestimonial hearsay. Today, I will look at the opinion of the Third Circuit in Pabon v. Mahanoy, 654 F.3d 385 (3rd Cir. 2011), and use it to explain why the Third Circuit's opinion in Shavers makes no sense.

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Avoiding A Confrontation, Take 2: 3rd Circuit Finds Bruton Doctrine Doesn't Cover Nontestimonial Hearsay

As I noted yesterday,

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a defendant's statement that facially incriminates a co-defendant unless the defendant takes the witness stand at trial. In the wake of the Supreme Court's opinion in Crawford v. Washington, however, courts nearly categorically have concluded that the Bruton doctrine only applies to "testimonial" statements, meaning that it does not apply to casual comments to a mother, a brother, a lover, or another acquaintance.

The recent opinion of the Third Circuit in United States v. Shavers, 693 F.3d 363 (3rd Cir. 2012), is another opinion in this same vein, and it again illustrates with I disagree with what courts have done with the Bruton doctrine.

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Avoiding A Confrontation: D.C. Court Of Appeals Finds Bruton Doctrine Does Not Cover Nontestimonial Hearsay

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a defendant's statement that facially incriminates a co-defendant unless the defendant takes the witness stand at trial. In the wake of the Supreme Court's opinion in Crawford v. Washington, however, courts nearly categorically have concluded that the Bruton doctrine only applies to "testimonial" statements, meaning that it does not apply to casual comments to a mother, a brother, a lover, or another acquaintance. In its recent opinion in Ward v. United States, 2012 WL 5512579 (D.C. 2012), the District of Columbia Court of Appeals joined the chorus. As always, I disagree.

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Time Out New York: NY Changes To Schools' Time Out Policies Prompts Interesting Subsequent Remedial Measure Rulings

William ("Billy") Schafer, Jr. is a developmentally disabled child at the Rosemary Kennedy School (named for the developmentally disabled oldest sister of JFK). Based upon Billy repeatedly being placed in a time out room, Billy, by and through his parents, brought, inter alia, a federal Section 1983 Fourth Amendment claim and state law claims for false imprisonment, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress against several defendants, including the Board of Cooperative Educational Services of Nassau County (BOCES). Specifically, the plaintiffs alleged the following:

Classroom 506 of the Kennedy School was the designated "timeout area." According to Plaintiffs, the timeout room was a small, dark room, approximately four feet by five feet, with little or no lighting...and with blue gym matting on the walls and floor....It was one of two small rooms within a larger classroom-type area.... The classroom windows were covered with cardboard....The door to the timeout room where Mr. Schafer found Billy might have had a window--Mr. Schafer cannot recall--but if it did the window was blocked....Further, Plaintiffs infer that the timeout room was locked....It is undisputed that Defendant Paul Schaefer was assigned to monitor the timeout room during the time Billy was enrolled at the Kennedy School....

According to Plaintiffs, Defendants put Billy in the timeout room between twenty-seven and forty times between September 2004 and May 2005....There are twenty-seven reported confinement incidents in Billy's timeout log,...but Defendant Cohen told Mr. Schafer that she thought Billy had been sent to the timeout room forty times.... According to the log, Billy was sent to the timeout room for behavior such as "hitting" or "kicking" and also for infractions such as "refusing to work" and "cursing."...Defendants claim that they prepared a Behavioral Intervention Plan ("BIP") for Billy and discussed it with his Parents....Billy's Parents sharply dispute that they ever had any knowledge of the BIP or the strategies it described....In any event, the BIP appears to permit use of the timeout room only when "Billy is physically aggressive toward others." 

In this post, I will address the recent opinion of the United States District Court for the Eastern District of New York, in Schafer v. Board of Co-op. Educational Services of Nassau County, 2012 WL 5547319 (E.D.N.Y. 2012), which dealt with some interesting issues relating to subsequent remedial measures.

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Later On We'll Conspire: D.C. Case Raises Questions About Intersection Between Conspiracy Theory & Forfeiture Doctrine

Under the doctrine of forfeiture by wrongdoing, "a defendant forfeits his Sixth Amendment right to be confronted by a witness against him, as well as his objection to the introduction of hearsay, if he wrongfully procured the unavailability of that witness with the purpose of preventing the witness from testifying." Roberson v. United States, 961 A.2d 1092, 1095 (D.C.2008). In Ward v. United States, 2012 WL 5512579 (D.C. 2012), the defendant claimed that this doctrine applies "only where the murdered witness was to testify against her killer." The District of Columbia Court of Appeals of course rejected this argument, but the facts of the case raise an interesting question.

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Not Without My Glock: Middle District Of Florida Finds Husband-Wife Privilege Applies In Glock Case

Section 90.504 of the Florida Statutes sets forth Florida's husband-wife privilege

(1)  A spouse has a privilege during and after the marital relationship to refuse to disclose, and to prevent another from disclosing, communications which were intended to be made in confidence between the spouses while they were husband and wife.

(2)  The privilege may be claimed by either spouse or by the guardian or conservator of a spouse. The authority of a spouse, or guardian or conservator of a spouse, to claim the privilege is presumed in the absence of contrary evidence.

(3)  There is no privilege under this section:

(a)  In a proceeding brought by or on behalf of one spouse against the other spouse.

(b)  In a criminal proceeding in which one spouse is charged with a crime committed at any time against the person or property of the other spouse, or the person or property of a child of either.

(c)  In a criminal proceeding in which the communication is offered in evidence by a defendant-spouse who is one of the spouses between whom the communication was made.

If you're looking for a pretty good explanation of the ins and outs of this privilege, you need look no further than the recent opinion of the United States District Court for the Middle District of Florida in Tropical Marketing & Consulting, LLC. v. Glock, Inc., 2012 WL 5431002 (M.D.Fla. 2012).

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Land Of Confusion?: 11th Circuit Finds Statements Against Interest Inadmissible Because They Were Later Recanted

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

In United States v. Berry, 2012 WL 5476922 (11th Cir. 2012), the Eleventh Circuit rejected the defendant's Rule 804(b)(3) appeal, finding that the statements proferred by the defendant did not satisfy subsection (B) of the Rule. But was this ruling correct?

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PC Confidential: Judge Seals Documents Detailing Source Code, Negotiations & Product Specs In Microsoft v. Motorola Case

Microsoft and Google's Motorola Mobility unit squared off on Tuesday at a trial with strategic implications for the smartphone patent wars and which could reveal financial information the two companies usually keep under wraps.  The proceeding in a Seattle federal court will determine how much of a royalty Microsoft Corp should pay Google Inc for a license to some of Motorola's patents. Google bought Motorola for $12.5 billion, partly for its library of communications patents.  If U.S. District Judge James Robart decides Google deserves only a small royalty, then its Motorola patents would be a weaker bargaining chip for Google to negotiate licensing deals with rivals.

Based upon the recent opinion of the United States District Court for the Western District of Washington in Microsoft Corp. v. Motorola, Inc., 2012 WL 5476846 (W.D.Wash. 2012), three things that will not be revealed during trial are documents containing (1) confidential source code, (2) settlement negotiations, and (3) product specifications. 

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Failure To Register: Court Of Appeals Of Texas Finds Failure To Register Conviction Has High Impeachment Value

Texas Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record but only if the crime was a felony or involved moral turpitude, regardless of punishment, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party.

In determining whether a conviction is admissible to impeach a witness under Rule 609(a), Texas courts generally consider five factors:

(1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the witness's subsequent history, (3) the similarity between past crimes and the charged offense, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. Id. We accord the trial court wide discretion in its decision. 

So, what is the impeachment value for the crime of failure to register as a sex offender? Let's take a look at the recent opinion of the Court of Appeals of Texas, Houston, in Tristan v. State, 2012 WL 5285673 (Tex.App.-Houston [1 Dist.] 2012).

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Believe It Or Not?: 10th Circuit Finds Judicial Credibility Determination Admissible Under Rule 608(b)

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

So, is a judicial credibility determination admissible under Rule 608(b), in the sense that it can be inquired into on cross-examination? As a matter of first impression in United States v. Woodard, the Tenth Circuit answered this question in the affirmative.

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He's A Character Guy: 4th Circuit Finds No Ineffective Assistance Despite Failure To Object To Character Evidence

Pursuant to West Virginia Rule of Evidence 404(a), "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except" in limited circumstances that usually consist of a criminal defendant opening the door to the admission of propensity character evidence. In Estep v. Ballard, 2012 WL 5417556 (4th Cir. 2012), the defendant did not open the door to the admission of character evidence and yet the prosecution still admitted it. So, did the defendant received the ineffective assistance of counsel because his trial attorney did not object to the admission of this evidence?

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