Is a Parrot's Statement Hearsay?

Fox News reports on this evidence exam hypothetical come to life:

A Michigan man’s wife is now a suspect in his May 2015 murder, newly obtained police reports show, and a winged witness may have heard the dead man’s final plea. 

An African grey parrot might’ve overheard Martin Durham as he pleaded with his shooter before the killer pumped five bullets into Durham’s body. The bird, Bud, was heard saying “Don’t f------ shoot” in a video taken shortly after Durham’s death, WOOD reported. 

“That bird picks up everything and anything, and it’s got the filthiest mouth around,” Duram’s mom, Lillian Duram, told WOOD. 

It’s unclear if police have seen this video, or if the bird’s utterance is even admissible as evidence.

Would the video be admissible as evidence of the victim's last words? Possibly. There are two major evidence law issues I can spot right off the bat. The first is whether this evidence would be unduly prejudicial to a criminal defendant charged with Durham's murder. The defendant may argue that the bird's statement is unreliable or that it could have originated from a source other than the victim. These possibilities, the Defendant may argue, render the bird's statement significantly more prejudicial than probative and warrant exclusion of the evidence.

I'm not sure how a debate over this question would turn out, and I doubt that there is precedent on the issue. The far more interesting (and clear-cut) issue, however, is whether the parrot's statement is hearsay.

"Jennifer Mnookin Named New Dean of UCLA School of Law"

So reads the title of this UCLA press release:

Jennifer Mnookin, a nationally renowned evidence law scholar who has held key administrative positions at the UCLA School of Law, has been appointed the school’s dean, Executive Vice Chancellor and Provost Scott Waugh announced today.

. . . 

Mnookin joined the faculty in 2005, and she served as vice dean for faculty and research from 2007 to 2009 and as vice dean for external appointments and intellectual life from 2012 to 2013. She is founding faculty director of the law school’s Program on Understanding, Science and Evidence. 

“Chancellor Block and I are confident that UCLA Law will reach new heights under Jennifer’s leadership,” Waugh said in an announcement. 

The 2014 recipient of the law school’s Rutter Award for Excellence in Teaching, Mnookin regularly teaches courses on evidence and torts, as well as more specialized classes in areas such as expert and scientific evidence, wrongful convictions, and law and popular culture. 

“It is a tremendous honor to be selected as the next dean of UCLA School of Law,” Mnookin said. “Having served on the UCLA Law faculty for the past decade, I know firsthand what an exceptional institution it is. We have tremendously capable students, an extraordinarily talented and dedicated faculty and staff, and passionate and involved alumni and friends.

Further, concise, coverage is available at the EvidenceProf Blog. The National Law Journal has this report.

I had the privilege of taking Mnookin's course on evidence law about two years ago. Her approach of combining traditional law school reading and the Socratic Method with in-class exercises, media projects, and video clips made it one of the most interesting and engaging courses I took during my time at UCLA.

Mnookin is an excellent choice for dean. Under her guidance UCLA Law's future is extremely bright.

Kerr on The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria

A while ago, I wrote about Adam Liptak's criticism of law reviews, and argued that Liptak's criticism lacked novelty. I also did some research into a quote by Chief Justice Roberts on law reviews. That quote is:

Pick up a copy of any law review that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.

At the time, I pointed out that no article of the sort existed. But that is no longer the case.

Orin Kerr at the Volokh Conspiracy has this post on one of his new papers. Its title: The Influence of Immanuel Kant on Evidentiary Approaches in Eighteenth Century Bulgaria.

Here is the abstract:

In 2011, Chief Justice Roberts commented that if you "pick up a copy of any law review that you see," "the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I'm sure was of great interest to the academic that wrote it, but isn't of much help to the bar.” No such article exists, of course -- until now. This short essay explains why, in all likelihood, Kant’s influence on evidentiary approaches in 18th-century Bulgaria was none.

While the subject matter may be arcane, the paper is still quite fun to read, and is only three pages long.

My New Paper on Prior Sexual Misconduct Evidence in State Courts

I just posted my most recent article on SSRN. The title is Prior Sexual Misconduct Evidence in State Courts: Constitutional and Common Law Challenges. The article will be in the next issue of the American Criminal Law Review.

Here is the abstract:

Prosecuting sex crimes is a sensitive, challenging process, and many who commit these crimes end up going unpunished. While a defendant may have a history of prior sexual misconduct, the rules of evidence in most states and at the federal level generally prohibit the introduction of prior misconduct to show a defendant’s propensity to commit a present crime. In response, the federal government and numerous state legislatures have adopted rules of evidence that permit the introduction of prior sexual misconduct in cases where a defendant is charged with a sexual crime. 

While commentators have written in great detail about federal rules regarding sexual misconduct propensity evidence, comparatively little attention has been paid to analogous rules at the state level. And while much of the commentary on rules of evidence permitting the introduction of prior sexual misconduct focuses on whether these rules are good or bad policy, questions of whether the rules violate due process rights or separation-of-powers requirements often fall by the wayside. 

This article fills these gaps in the literature. In this article, I offer the first systematic review of challenges to state rules of evidence that permit the introduction of evidence of a defendant’s prior sexual misconduct. These challenges include claims that these rules violate due process, that they violate constitutionally mandated separation of powers, and that they contradict the common law. This article examines both the successful and unsuccessful challenges to state rules, evaluates the merits of the arguments, and emphasizes procedures and considerations that states must address if they seek to change their rules to permit evidence of prior sexual misconduct.

As is the case with all of my papers and posts, comments and criticism are welcome.

Stone on the "Spurious" Rule Against Propensity Evidence

Want to read a law review article in which the author uses the word, "spurious" 90 times?

Then look no further than Julius Stone's 1938 article, The Rule of Exclusion of Similar Fact Evidence: America (51 Harv. L. Rev. 988). I am not aware of any publicly available version of the article, so I can only include the link to the HeinOnline version.

In the article, Stone criticizes the rule of evidence that states that, in general, evidence of a person's prior acts cannot be introduced to show that the person has a propensity to act in a certain way. This rule is codified at Federal Rule of Evidence 404(b)(1), which states: "Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character."

Stone argues that a broad rule excluding prior act evidence is "spurious," and contends that, historically, judges only excluded evidence of prior acts when they were irrelevant. In the absence of a broad rule against prior act evidence, judges had broad discretion to admit prior act evidence. But in the early 1800s, English courts began applying a far broader restriction on prior act evidence. American courts followed suit, and cited the broad rule as though it was the historic approach to this type of evidence.

Stone's article is one of several that I draw upon in an upcoming article on propensity evidence. The article is partially based on the questions I began to explore in this post on exceptions to the propensity evidence ban and due process.

I am still in the process of revising the article, but I hope to post it to SSRN soon. As a preview/spoiler, however, I admit that the current draft of the paper does not use the term "spurious" as liberally as Professor Stone.

Pronouncing "Daubert": An Important Lesson You May Not Learn in Evidence Class

Last week I wrote a post on expert evidence. In doing so, I cited Daubert v. Merrell Dow Pharmaceuticals, which is the case establishing the most widely-used test for admitting experts' conclusions and opinions.

While I am fairly familiar with the legal test that Daubert establishes, I realized after writing that post that I was not sure how to pronounce "Daubert." I've heard the case pronounced in a variety of ways. For intance, here the case is pronounced so it sounds like "Daw-burt" and here it's pronounced "Dow-burt. In this video the speaker notes that while he pronounces it "Daw-burt," there are those who prefer "Daw-bear." He says that he hears this pronunciation from those below the Mason-Dixon line, which surprised me -- since I thought he was referring to people from Chicago. I've also heard a "Dough-burt" variation, though I could not find any Youtube examples.

I remember a lot of what I learned in evidence class, but I unfortunately do not recall whether I was taught which of these varying pronunciations is correct. It is very possible that even if this was covered, it slipped my mind at the time, since the pronunciation of "Daubert" was not a top priority when it came to preparing for the exam. I decided that I would look into this issue in the event that I ever need to pronounce the name of this case in court or in conversation.

Fortunately, I was able to find an authoritative source on the subject. Michael Gottesman, the attorney for the plaintiffs in the Daubert case, wrote a 1994 article in the Emory Law Journal entitled, Admissibility of Expert Testimony After Daubert: The "Prestige" Factor. (43 Emory L.J. 867). At the beginning of that article, he confronts the pronunciation of "Daubert" head on:

Among the handful I've been fortunate to represent in this new capacity have been the families of Jason Daubert and Eric Schuller, the petitioners in the case that has mistakenly come to be called the “Dough-bear” case. My principal contribution to this Symposium is to report that the folks who brought this case to the Supreme Court pronounce their name “Dow-burt”-or, as some might say, exactly as it's spelled. The penchant for foreign fancies has caused many to show their expertise in French pronunciation at the expense of this all-American family.

The confusion was hardly mitigated during the Supreme Court argument. The first Justice to use the name in framing a question chose “dough-bear,” and I faced the tricky tactical question of whether to spend my precious time (and all hope of kindly reception) correcting this judicial mispronunciation. I opted not to, and the rest of the Justices all then assumed, gallingly, that the Gallic was apropos. 

Let me, then, use this occasion to make amends to my clients. The family's name is not dough-bear. Whether this will (or should) affect the way people pronounce the name of the Supreme Court's opinion is, of course, another matter. Do the litigants or the Court own title to the pronunciation of the name of a Court opinion?

So -- it looks like "Dow-burt" is correct. Go forth and spread the news, and don't hesitate to correct your colleagues and loved ones.

But I would like to mention one final caveat that will guide my own practice. If I am ever in court and if I hear a judge pronounce the case "Daw-burt," or even "Dough-bear," I'll do my best to conform my own pronunciation to the judge's. I recommend that others do the same.

"Brain Fingerprinting" as Evidence of Criminal Guilt?

Via Elizabeth Joh, I learned about the company, Brainwave Science which specializes in "brain fingerprinting" technology. According to the company, brain fingerprinting can assist in determining whether a suspect is guilty of a crime. From the company's website:

Once a suspect is in custody, Brain Fingerprinting can accurately establish whether or not the suspect has knowledge of the crime. This saves time and money on investigations, while keeping dangerous criminals off of the streets. 

Conventional fingerprinting and DNA testing match physical evidence from a crime scene with evidence found on the perpetrator. While these are tested and accepted methods, they are only available in roughly 1% of crimes. It is estimated that Brain Fingerprinting would be applicable in 60%-70% of these same cases, thus having the potential to make a profound affect on the criminal justice system. 

The advantages to Brain Fingerprinting are that it offers higher accuracy than other techniques, is non-invasive and has been ruled admissible in the US court.

There are some . . . interesting claims being thrown around in these paragraphs (I want some more detail on that fingerprinting and DNA evidence only being available for 1% of crimes). But I was particularly intrigued by the last paragraph, which notes that brain fingerprinting has been ruled admissible "in the US court" (whatever jurisdiction that's supposed to mean). The website also claims that the technology has been used to obtain convictions.

I was intrigued by these claims, since the Brainwave Science is making some pretty outrageous far-reaching claims about the power of its technology. And I have reason to doubt the company's claims of legal success because I think that this sort of evidence would raise serious evidentiary concerns.

In the rest of this post, I address Brainwave Science's claims. I determine that some of the company's claims are highly misleading, while others are a bit more borderline. In any event, serious questions remain as to whether this sort of evidence would be admissible in trial.

Batman v. Superman: My Thoughts on Potential Cases

Linda Holmes of NPR has an fun article about the upcoming sequel to Man of Steel. The title of the sequel will be Batman v Superman: Dawn of Justice. Holmes notes that the "v" in the title is typically used in the titles of court cases, pointing out that the title is not going to be "vs." or "versus." Accordingly, Holmes reaches the hopeful conclusion that Batman v Superman will be a legal drama, rather than a typical superhero movie.

Holmes provides a few examples of what the plot of the movie may be. The first is:

Batman sues Superman over an incident in which Superman accidentally picks up Batman's cape at the dry cleaner's, which leads to the revelation that Superman only sees black and white, which renders his colorful costume very ironic. Batman v Superman!

As somebody who has just graduated from law school, and who has seen Man of Steel, I join in Holmes's hope that Batman v Superman will be a legal drama rather than a repeat of its loud, humorless, two-dimensional, and destruction-filled predecessor. I thought that I would throw out some of my own bar-review-inspired ideas for the plot of the sequel.

"Reverse" 413-414 Evidence and the Limits of Accusing Alternate Suspects

At EvidenceProf Blog, Colin Miller discusses the case, United States v. Thunder, (8th Cir. 2014 WL 944752), and some interesting questions the case raises. In Thunder, the defendant was convicted of sexual assault. At trial, the defendant had attempted to introduce evidence that another person, Speker, had committed the assault and sought to introduce evidence of Speker's prior conviction for sexual abuse.

The trial court did not permit evidence of the alternate suspect's prior conviction, noting that the evidence would be unduly prejudicial under Federal Rule of Evidence 403 and would likely cause confusion to the jury. The Eighth Circuit affirmed this ruling, noting that there was no evidence that the alternate suspect had been near the victim when she was attacked.

Miller asks the broader question about whether the Federal Rules of Evidence permit evidence of a third party's prior sexual assault or abuse convictions:

My second question relates to Federal Rule of Evidence 414(a) and Federal Rule of Evidence 413(a), which covers prior acts of sexual assault. These rules generally allow the prosecutor to present evidence of any prior sex crimes committed by a criminal defendant to prove any relevant purpose, subject only to a very lenient Rule 403 analysis. 

The Speker evidence didn't satisfy Rule 403, but what if it did? For instance, what if the defendant did have evidence that Speker was alone with the victim? Techinically, Federal Rule of Evidence 414(a) only allows for the admission of evidence against a defendant. And while courts do allow defendants to use Federal Rule of Evidence 404(b) to prove the motive, intent, etc. of an alternate suspect (reverse 404(b) evidence), a defendant generally cannot present evidence of the general criminal propensities of alternate suspects. So, for instance, a defendant would be precluded from presenting evidence of an alternate suspect's prior rape conviction to prove "once a rapist, always a rapist." 

But should a suspect be able to introduce "reverse" 413/414 evidence to prove just such a thing? Is that what fairness requires?

I agree with Miller that the text of the rules does not support the introduction of "reverse" 413-414 evidence. Not only do rules 413 and 414 refer only to admission of evidence against the defendant, but Rule 404's broader prohibition on the use of propensity evidence refers to generic "persons" and is not limited to preventing evidence of the defendant's prior crimes or bad acts.

But whether allowing evidence of prior crimes by alternate suspects is a good policy is a far more complicated question.

Rogers on Historic Legal Treatment of Hair

I came across an article entitled, Hair, by R. Vashon Rogers in The Green Bag. The citation is 16 Green Bag 326 (1904). I am unfortunately unable to find a publicly accessible version of this article, but here is a link to the Heinonline version.

In this article, Rogers surveys a broad range of historical treatment of hair. He discusses the taxation of beards in both England and Russia, noting that the English laws on taxing hair fell out of fashion and were ultimately deemed "too absurd to be enforced."

Offenses against others' hair could be the basis for civil liability. Rogers writes:

In Ireland, by the Brehon law, a heavy fine had to be paid by any one who maliciously shaved the false locks of a poet or of a scholar, or of a show girl, or who cut off the eye lashes, or the hair of the brow, or the beard or whiskers of a man.

Robbing a man of his beard, among the Saxons, according to Alfred's laws, was punishable by a fine of twenty shillings; he who shaved a priest against his will was mulcted in thirty shillings; while binding the ecclesiastic, as well as shaving him, raised the penalty to two pounds.

Rogers doesn't stop there. He goes on to summarize the importance of horses' hair, noting that the cutting of a horse's mane or tail would require compensation as well as the provision of a substitute animal while the injured horse was kept in hiding. The church took mixed positions on the length of women's hair, with some members of the clergy encouraging the cutting of hair as a symbol of chastity, and others criticizing Joan of Arc's choice to wear short hair as blasphemy.

Rogers concludes with an anecdote about Lord Mansfield:

Lord Mansfield tried a man for assault, he was convicted; the Court thought imprisonment an unsuitable punishment under the circumstances; an affidavit was produced in which the offender stated he was wholly unable to pay a pecuniary fine. While this was being read the man stood proudly erect, his face adorned with enormous whiskers and moustaches, the pride of his heart, his boast in his cups. Mr. Dunning, for the prosecution, suggested to the judge that "as the prisoner had very fine moustachios and whiskers, perhaps his lordship would take the punishment out of these, and order him at once to be shaved."

For a modern perspective on a different, hair-related legal issue, I would recommend Paul C. Giannelli's, Microscopic Hair Comparisons: A Cautionary Tale, 46 Crim. L. Bull. 7 (2010). From the abstract:

This article examines the judicial history of microscopic hair analysis, including its role in several wrongful convictions. It discusses the misuse and the abuse of hair evidence, and the failure to establish an empirical basis for the technique. In sum, hair evidence provides a cautionary tale for other forensic techniques.

Criminal Records and Reentry, and the Importance of Civil Reform

Via the CrimProf Blog, I learned about a recent article by Michael Pinard entitled, Criminal Records, Race and Redemption. The citation is 16 N.Y.U. J. L. & Pub. Pol. 963 (2013).  Here is the abstract:

Poor individuals of color disproportionately carry the weight of a criminal record. They confront an array of legal and non-legal barriers, the most prominent of which are housing and employment. Federal, State and local governments are implementing measures aimed at easing the everlasting impact of a criminal record. However, these measures, while laudable, fail to address the disconnection between individuals who believe they have moved past their interactions with the criminal justice system and the ways in which decision makers continue to judge them in the years and decades following those interactions. These issues are particularly pronounced for poor individuals of color, who are uniquely stigmatized by their criminal records. To address these issues, this article proposes a redemption-focused approach to criminal records. This approach recognizes that individuals ultimately move past their interactions with the criminal justice system and, therefore, they should no longer be saddled by their criminal records. Thus, the article calls for greatly expanding laws that allow individuals to remove their criminal records from public access and, in the end, allow them to reach redemption.

I have not had very much time to read through the paper in depth, but from what I have read, Pinard seems to be presenting and addressing an extremely important issue facing the criminal justice system. Speaking from my own experience volunteering at a reentry clinic for a few years, I can say that (1) Pinard's arguments that criminal records make finding jobs and housing difficult are spot on, and (2) that I am relieved to be working at a clinic in California rather than Maryland, where expungement rules seem to be far more restricted.

Pinard also seems to offer some strong suggestions for reform. I would add to his conclusions by re-emphasizing the importance of civil remedies against employers who discriminate based on criminal background. I am aware that California has enacted legislation that provides for statutory damages in the event an individual can prove that they were not hired specifically because of their criminal background. And while Pinard correctly points out that this may be difficult to prove, I have nevertheless met numerous people who have heard either explicitly from employers that they were not hired because of their record -- or who had significant circumstantial evidence that this was the case. Legislation providing for substantial statutory damages would provide employees with record with a significant source for redress in the event they are not hired because of their criminal record.

Be Careful What You Tweet - It Can Be Used Against You

The BBC reports on a recent case from Norwich.  There, Emma Way was found guilty of failing to stop after an accident and failing to report an accident after she collided with a cyclist, knocking him off his bike and causing him to sustain minor injuries.

While the prosecutor described the case as a typical traffic accident, the case gained notoriety from what Way did after the accident. After she drove on, she went home and tweeted:

Definitely knocked a cyclist off his bike earlier. I have right of way - he doesn't even pay road tax! #Bloodycyclists."

This type of evidence would certainly be admissible in U.S. courts under Federal Rule of Evidence 801(d)(2)(A) because would it is Way's own statement and was offered against her.  With prosecutors and investigators increasingly using social media to solve and prosecute crimes, Way's tweet -- or writing a tweet or Facebook status update like it -- is one of the dumbest things that somebody could do after committing a crime.  Even if somebody who commits a crime plans to confess, posting the confession online, effectively making it available for police and prosecutors to find, removes most, if not all, leverage that the defendant may have in later plea negotiations.

But it looks like Way is going to get out of this situation just fine.  The BBC's report concludes:

Way refused to comment as she left court, saying she had signed an exclusive television deal.

The Hearsay Implications of Defining Dogs as People

I posted this story from the New York Times on my page about Philosophy of Mind earlier, but I then realized that its title, "Dogs Are People, Too," and its implications -- that MRI research on dogs indicates that they have sentience and mental states and that they should be granted some form of personhood -- have interesting legal consequences.

Take, for example, the law of hearsay.  A statement is hearsay if it is made out of court and is introduced at trial for the truth of the matter asserted in the statement.  Rule 801 of the Federal Rules of Evidence defines "statement" as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion."  Notice that one can only make a "statement" if one is a "person."

During the summer after my first year of law school, I interned in the Los Angeles Office of the District Attorney.  One case I worked on involved an eyewitness account that a murderer had, after killing the victim, fled from the victim's home across the lawn and jumped over a fence.  To corroborate the eyewitnesses, a trained dog was brought to the scene.  The dog, after smelling clothing belonging to the defendant, ran across the lawn to the fence -- taking the same path that the eyewitnesses said the killer had taken.

There was some dispute over whether the dog had been properly trained and whether too much time had past since the murder had taken place, but as I recall, this challenge did not succeed.

On the other hand, a far stronger challenge could be made against this evidence if the dog were considered to be a person.  The dog's action of running across the lawn was taken by the trainer (and introduced in court) as an indication of the path the killer had taken.  This indication would probably be considered an assertion -- while the dog was not speaking, it was nonverbally displaying the path of the scent it had been given.  If the court were to accept that the dog's action was a nonverbal assertion rising to the level of a statement, and if the dog were to be considered a "person," the court would probably need to conclude that the dog's statement was hearsay.

I am not sure how often this problem would arise.  Many situations involving dogs typically involve dogs that are trained to "alert" upon smelling drugs, with these alerts giving rise to probable cause for police to search people, vehicles, or packages for drugs.  These alerts would probably not be deemed hearsay, however, since they would typically be introduced for the limited purpose of showing why police acted the way they did after the dog's alert.  Moreover, even if the dog alert were hearsay, under Rule 1101, this wouldn't prevent the police from using the alert to obtain a search or arrest warrant.

People who advocate for the personhood of dogs and other animals must take into account all of the legal implications that follow from such a determination.  Assigning this status to dogs may have far-reaching consequences that could paralyze law enforcement.  Doing the same for cats, on the other hand, would not raise these concerns, at least not as far as I am aware.

Dreams As Evidence: A Compelling Case Study

"While glancing through one of the earlier volumes of The Green Bag--I frequently do so to entertain an odd moment..."

So begins George H. Westley's Convicted By a Dream (9 Green Bag 356 (1897)) and so begins the story of how I stumbled across Westley's essay this evening.  Westley recounts his discovery of an earlier Green Bag article, Dreams Before the Law Courts, which inspired him to pen an essay on the strange case of Eugene Clifford.

Clifford, a deserter from the British Army, took up residence in Fairfield, Vermont in 1840.  He soon married a widow who lived in that town with her two children.  Several months into the wedding, a bedraggled Clifford returned from a nearby lake and claimed that his wife and children had drowned as they attempted to sail across.  Despite several suspicious circumstances (Clifford remained drenched despite walking several miles from the lake and he had not stopped at the houses nearest to the lake before reporting the tragedy), Clifford - though initially arrested - was released.

The story took a strange turn, however, with the introduction of Mrs. Marvin - a woman who lived several miles from the place where Mrs. Clifford and her children drowned.  When Clifford set sail with his family, his wife and children were wrapped in shawls.  Westley writes of Marvin's recurring dream:

She dreamed that she saw Clifford, after he had drowned his wife and children, come out of the water bearing the two shawls in his arms and, proceeding to a point some fifteen or twenty rods from the shore, through timber and undergrowth, deposit them in a clump of alder-bushes, twisting them together and matting and tangling the grass over them.  The spot was fixed in the dreamer's memory by a fallen tree beside the hiding place.

Thus far the dream related to the past, but before it ended she also saw what was to be Clifford's punishment.  She dreamed that he would be tried, and upon her testimony convicted of the crime of murder; that he would not be hanged, but would remain in prison until, by slow decay, mind and body should perish.

After reporting this dream, Marvin lead two of her neighbors to the location she had seen in her dream.  After locating the alders and the fallen tree, they dug through the grass and found two shawls.  The authorities were notified and Clifford was arrested again and indicted for the murder of his wife.  During the jury trial, Marvin testified about the contents of her dream, but did not mention the portion relating to Clifford's punishment.  During jury instructions, the judge told the jury that they were to disregard Marvin's testimony.  Nevertheless, Clifford was convicted and sentenced to a year in solitary confinement before being hanged.

This is not the end of the story.  Westley concludes:

Shortly after Clifford was put in solitary confinement, his mind began to weaken, and each succeeding month found him less and less himself and less and less a man.  He became possessed with the idea that the jury who had tried him, instead of finding him guilty, had declared him not guilty.  So persistently did he harp upon this, that the warden of the jail was induced to write his lawyers to ascertain if there were or possibly could be any mistake about the verdict.  The reply he received assured him that there was not.  Clifford's mental and physical decay went rapidly on.  Before a year had expired he had become a hopeless wreck in body and mind.  He was transferred from prison to the insane asylum at Brattleboro, Vermont, and there he soon afterwards died, his career closing exactly as had been foretold in Mrs. Marvin's dream.

Prior Convictions, Propensity, and Character for Truthfulness

At EvidenceProf Blog, Colin Miller posts about Horvath v. West Bend Mut. Ins. Co., a recent decision in the Seventh Circuit.  Horvath made a claim to recover from her insurance company after her house burned down, but the insurance company argued that the fire had been set with Horvath's permission.  During trial, the judge permitted evidence of Horvath's 1991 conviction for embezzlement.

Rule 609(b) of the Federal Rules of Evidence allows the admission of prior convictions that are over ten years old only if the probative value of the conviction substantially outweighs any prejudicial effect that the conviction may have on the jury.  Contrast this with Rule 609(a)(1)(B), the rule that would have governed in this case had the conviction been less than ten years old.  Under 609(a)(1)(B), the court MUST admit the evidence as long as it meets the requirements of Rule 403, meaning that as long as the prejudicial effect of the prior conviction does not substantially outweigh its probative value, the evidence must be admitted.

Under the more stringent 609(b) standard, courts are typically required to consider several factors when deciding whether to admit evidence of a past conviction that is over ten years old.  Those factors are:

(1) The impeachment value of the prior crime.

(2) The point in time of the conviction and the witness' subsequent history.

(3) The similarity between the past crime and the charged crime.

(4) The importance of the defendant's testimony.

(5) The centrality of the credibility issue.

Here, the Seventh Circuit determined that the district court made a mistake in applying this test. The district court apparently misapplied the third factor, reasoning that if the prior conviction was similar to the present case, that weighed in favor of admitting the prior conviction.

Why was the district court wrong to do this?

Delving Into Undue Prejudice: A Study in Profile Evidence with Denny Crane

In my evidence class last semester, we used George Fisher’s popular casebook, which began our study of evidence with a walkthrough of evidentiary “basics”: relevance (FRE 401) and unduly prejudicial evidence (FRE 403).  As the course progressed, these concepts tended to fade into the background – often playing the part of backup arguments in the event that a hearsay or character evidence objection seemed too simple or ill-founded.

While this treatment of relevance and undue prejudice was probably necessary given the time constraints of the class, this quick treatment may cause classes to overlook the rich doctrine of these rules.  Despite the relatively simple text of bans on unduly prejudicial evidence, these rules are the vehicle for an intricate web of traditional and judge-made doctrine regarding the admission of specific types of evidence.

Take, for example, profile evidence.

Testimony is profile evidence when it seeks to infer that a defendant committed a crime because that defendant fit the profile of a guilty person.  This evidence appears in a variety of contexts, most infamously in cases involving drug couriers.  In a typical case of profile evidence, a police expert is called to testify about the features of a “typical” criminal.  For instance, a typical drug courier would purchase a one-way plane ticket, would pack lightly, would walk quickly, and would meet a contact person at his/her destination.  The expert would then note how the defendant fit all of these features.

Or, to borrow an example from Boston Legal, consider the profile of the typical person looking to solicit sex for a fee in a restroom.  In “Oral Contracts” (Episode 8, Season 4), William Shatner’s character, Denny Crane, finds himself in an uncomfortable situation when he is arrested for this very crime:

United States v. Alaniz: A Case Study in Issue Conflation and Awkward Analysis

Over at the EvidenceProf Blog, Collin Miller posts about the recent Fifth Circuit case, UnitedStates v. Alaniz.  In this money laundering case, one of the codefendants, Magana, claimed that she did not realize she was helping her brother engage in criminal conduct.  To support this claim, Magana sought to admit evidence of a coworker who would testify that Magana was a naïve and gullible person.  The district court ruled against the admission of this evidence, concluding that even if Magana was naïve, she still could have acted knowingly or willingly in the money laundering scheme.  The Fifth Circuit affirmed this ruling, adding that the coworker’s testimony about Magana’s naïveté would have only incrementally supported her claim that she was not aware of the overall scheme.

Miller does not hold back in expressing his opinion on this ruling.  Miller labels the Fifth Circuit’s discussion of the naïveté evidence as “some of the worst analysis that I have ever seen by a federal appellate court.”  He also deems “Ridiculous” the conclusion that the coworker’s testimony would have only incrementally added to Magana’s defense, and argues that because this is the only evidence mentioned by the court that supports Magana’s naïveté claim, this evidence would have been the “centerpiece” of her defense.

I am in agreement with Miller that the district court’s reasoning for excluding the evidence was lacking.  If the reasoning of its decision were adopted universally, character evidence would become largely inadmissible, since people are always capable of acting in a manner inconsistent with their character.

On the other hand, I am not so sure that the Fifth Circuit’s analysis is as terrible as Miller argues.  The Circuit begins by noting that the district court has a great deal of discretion in making decisions regarding the admission of evidence.  This is worth mentioning because the lower court may have concluded that the coworker’s friendship with Magana may have indicated bias and therefore decreased the probative value of the testimony.  Alternatively, the coworker would probably not have been able to testify about Magana’s gullibility when it came to organizing her finances – making the character evidence less probative regarding the central issue of the case.  While the district court did not engage in any of this analysis, it was probably worth mentioning that the court had the discretion it did.

Moreover, I think that Miller overstates the argument against the Fifth Circuit’s analysis of the incremental nature of the coworker’s testimony.  While Magana’s claim of naïveté may have been her full defense, it is worth noting the volume of evidence against.  Over the course of the money laundering scheme, Magana received $220,000 in wire transfers into eleven bank accounts that she controlled.  Money was also wired out of these accounts to other individuals involved in the scheme.  Magana was aware that her brother was using a false name, and three cars were purchased in Magana’s name over the course of the scheme.  Even if the coworker’s testimony about Magana’s naïve character would have been the bulk of her defense, I think the Fifth Circuit would probably be right to conclude that any error in excluding this testimony was harmless beyond a reasonable doubt.  Even though the coworker’s testimony was Magana’s full defense, that doesn’t change the fact that the defense would have almost certainly failed to exonerate her.

That said, the court should have been more explicit in stating why the coworker’s testimony would have failed to make a difference.  Moreover, I think that this analysis is better suited to a harmless error discussion, and I do not think that it is proper for the court to lump all of the discussion together in the context of why the court acted within its discretion.  Here, the relative probative value of evidence was better suited for a discussion of harmless error – not for analysis over whether error had occurred in the first place.

Propensity Evidence, Due Process, and the Limits of Arguments From History

My work this summer and last summer has focused my attention on California’s criminal law more than the criminal law of any other state.  Every once in a while, however, an errant citechecking click or an event in the news will clue me in to the criminal laws of other states.  One such citechecking click occurred during one of my earlier assignments, which led me to find an interesting difference between the law of California and the law of Iowa.

As a general rule, evidence about a defendant’s prior bad actions cannot be admitted to show that the defendant had a propensity to do bad actions.  There are, however, some exceptions to this rule.  Federal Rules of Evidence 413 and 414, for example, permit evidence of the defendant’s commission of prior sexual assaults and child molestation in cases where the defendant is charged with sexual assault or child molestation.  In a similar manner, California Evidence Code, section 1108 allows for the admission of prior commissions of sexual assault in cases where the defendant is charged with sexual assault.  These rules have been upheld despite defendants’ arguments that allowing propensity evidence violates due process.  The main California case on this point is People v. Falsetta, 986 P.2d 182 (1999).  The Falsetta court held that it was not clear that a ban on propensity evidence was a fundamental part of California’s legal history, noting that courts had historically been far more lenient in allowing evidence of propensity in sex offense cases.  The court further noted that even if the principle against propensity evidence were sufficiently fundamental in sex offense cases, 1108 did not unduly offend the principle because it was a narrow statute and subject to the limitations of other evidentiary rules.

In contrast, the Iowa Supreme Court struck down a similar rule, Iowa Code 701.11, in State v. Cox, 781 N.W.2d 757 (2010).  Recognizing that the general history of propensity in sex offense cases suggested that courts would sometimes allow evidence of prior sex offenses, the court clarified that Iowa courts would typically require the evidence of the prior offenses to be “relevant and material to some legitimate issue other than a general propensity to commit wrongful acts.”  Because propensity evidence had never been admitted solely to show the defendant’s propensity, and because there were longstanding “deep concerns” over admitting this evidence, the court held that 701.11 was unconstitutional.

After an initial reading, both of these cases seem to illustrate the importance of history in making an initial determination of whether a law violates due process, with the Falsetta court relying on ambiguity indicated by several cases and treatises and the Cox court relying on a rule drawn from a number of cases.  But both of these cases also illustrate the limitations of history in determining whether a law violates due process.  The Falsetta court noted that there were a number of limitations on 1108, with other rules still limiting evidence that is unduly prejudicial and the rule only applying to sexual assault prosecutions.  On the other hand, the Iowa statute contained the same limitations, but the Cox court still concluded that it violated due process.

The courts seemed to reach these different conclusions by focusing on different values throughout their due process analysis.  The Falsetta court focused on the importance of successfully prosecuting crimes that are typically committed in private, noting that propensity evidence will help victims bolster their credibility compared to the defendant.  The Cox court focused on the inherently prejudicial nature of propensity evidence and noted that past crimes are not probative of future crimes.  When two courts value fundamentally different concepts, it should not be surprising when they end up reaching different conclusions.

The Aaron Hernandez Case and eHearsay

At EvidenceProf Blog, Jeff Bellin posts about the Aaron Hernandez case and the evidentiary concerns with text messages that were sent by the victim.  The victim’s text messages indicate that the victim was with Hernandez shortly before his death.

Bellin notes that the text messages are hearsay and that this can be a big problem for the prosecution since the hearsay exception that would typically apply to these messages (present sense impression) has not been adopted by Massachusetts.  Bellin uses this as a jumping-off point to note his forthcoming article, “eHearsay,” where he discusses the need for revisions to rules of evidence that would allow recorded statements such as posts on Facebook or Twitter to be admitted in the event of the declarant’s unavailability.

I think that Bellin is on to something when he argues for a new, general rule that would permit the admission of recorded statements about recent events in the event of the declarant’s unavailability.  With the rise of Twitter and Facebook, there is going to be a lot of this evidence available, and the admission of this evidence would help paint a more realistic picture of events for the jury.  Additionally, there is less of a danger that the declarant’s statement will be misinterpreted, since it does not need to pass through a human intermediary – the statement itself is recorded and can be admitted as it was written.

On the other hand, using the Hernandez case is a somewhat misleading way of introducing a discussion for the need of an “eHearsay” exception.  The Hernandez case is problematic only because Massachusetts is one of a minority of states that has not adopted the present-sense impression exception to the hearsay rule.  Typically, recorded statements about what one is doing or experiencing will fall under the present-sense impression exception to the hearsay rule, especially since many people are now updating their Facebook and Twitter statuses using smartphones.  These status updates occur either contemporaneously with the events they discuss, or very nearly so.  Because of this, most recorded statements that Bellin wants admitted will probably be admitted under the present-sense impression exception.

Another qualm that I have with an eHearsay exception arises from the problem of hacked accounts.  As I mentioned above, statements that are recorded by the declarant are generally more reliable than a statement that is relayed by a third party.  This reliability is undermined in the Facebook/Twitter context due to the potential for other individuals to take control of an account.  Bellin does not seem to address this concern in his discussion of eHearsay.  While recorded statements on Facebook and Twitter may provide unprecedented insight into the experiences of an unavailable declarant, the possibility of these accounts being hacked creates an unprecedented risk of statements that falsely appear to have been made by the declarant.

The rise of texting and social network posts reveal the age of the hearsay rule and its exceptions.  Despite this, the rules must be revised with caution.  Old metrics of reliability and simultaneity do not adequately account for hacking, and any revision to the rules of evidence must take into account all unprecedented sides of this debate.

"Street Cred": An Important Argument with Unnecessary Problems

CrimProf Blog notes that Montré Denise Carodine recently posted to SSRN "Street Cred," an upcoming article in Volume 46 of the UC Davis Law Review.  Here is the abstract:

The killing of unarmed teen Trayvon Martin by a neighborhood watch captain and the purported lackadaisical response to that killing by the Sanford, Florida Police Department riveted the country and sparked an important conversation regarding the breakdown of the relationship between the police and the communities that they serve. Regardless of one’s opinion on what happened the night that Martin was killed, it is undeniable that this entire case has jeopardized the already fragile relationship between law enforcement and not only the Sanford community, but communities across the nation. This Essay considers the effect of the dysfunctional relationship between the police and the communities that they serve on the perceived reliability of the evidence that police provide in our criminal justice system on a daily basis. The evidence rules, which are particularly crucial in criminal cases, should reflect the reality of public perception of law enforcement. I propose that communities call for and legislatures implement a moratorium on the admissibility of certain types of law enforcement testimony in communities with strong levels of distrust of the police. And, in turn, when confidence in the credibility of law enforcement is restored, which is the ultimate goal of this Essay, the evidentiary regime can and should then reflect a new reality and take the opposite approach. The rules of evidence should incorporate a community policing approach to the admissibility of police testimony. 

My approach is novel, as criminal law and evidence scholars have not considered the importance of the community in assessing evidentiary reliability. But we should rely on the community to adjudge police credibility and the evidentiary value of their testimony. This approach is superior to relying solely on prosecutors, judges, and the police themselves. My proposal will help to restore the public’s trust in law enforcement, which is at an all-time, critical low.

My initial comment on this article is that it should not be dismissed -- especially not by those who are particularly prosecution-minded.  My first reaction to the thesis after reading the abstract was one of incredulity.  Excluding all law enforcement testimony from certain cases?  My initial impression was that the article would seem credible only to those who already hold these strong views, and would seem completely incredible to all others.  As I read the article, however, I found a great deal of interesting discussion on community perspectives of law enforcement and specific strategies that law enforcement agencies can take to repair broken relationships with an untrusting public.  The problem of distrust and the solutions the author presents in Part II make this article worth reading, even by those who disagree with the author's ultimate proposal.  The perspective is important, and the problem is real; it is of social importance to reformers and of strategic importance to prosecutors.  The article does have its problems, which I discuss after the jump, but I think that Part II is certainly worth reading.

However,