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Barry Bonds and Hearsay
Posted: 2/5/2009

Baseball player Barry Bonds is scheduled to go to trial on March 2nd on perjury charges. The government alleges that Bonds gave false testimony to a grand jury that was investigating steroids in 2003. But the prosecutor faces challenges in admitting a number of pieces of incriminating evidence against Bonds.

The two most troubling pieces of evidence are a calendar kept by Greg Anderson, Bonds' former trainer, and statements made by Anderson to prosecution witness Steve Hoskins. Anderson is presumably not testifying in this case (he already went to jail for over a year for contempt when he refused to testify to the grand jury), so he is not going to testify to any of his actions directly; thus his prior out-of-court statements are critical to the case.

The calendar was found in Anderson's home, and has various notations, including "BB" at the top (which prosecutors claim stands for Barry Bonds), and "clear" and "G" on specific dates (which prosecutors claim refers to different types of hormones and steroids that Bonds would receive on those dates). The calendar can probably be authenticated, if someone who knows Anderson's handwriting can testify. Also, a jury could certainly make the reasonable inference that "BB" stands for Barry Bonds, given where the calendar was recovered, so relevance is not an issue. But the problem is hearsay--Anderson kept this as a record to communicate specific information, and it is being offered to prove the truth of the matter asserted: i.e., that Anderson planned to inject (or did inject) Barry Bonds with steroids on those specific days.

If Anderson were working for a company, the calendar could probably come in as a business record--but presumably he was working on his own. The prosecutor could claim that state that these statements are statements of future intent, and therefore admissible under Rule 803(3), which allows statements about a declarant's "state of mind"--but this brings up the controversial "Hillmon" doctrine: can the future plans of the declarant to interact with another person (in this case Bonds) be admissible to prove that the other person acted in accordance with those plans? Many commentators believe that it should not--but the courts are split on this issue. Some courts will allow this evidence to prove the actions of a third party, as long as there is some corroboration--which presumably the government can provide.

Of course, if the calendar were a record that Anderson made AFTER the injections, Rule 803(3) would not apply at all, since it only applies to future plans, not to memories. So how can the prosecutor prove that Anderson made these notations BEFORE the injections (as a future plan) and not AFTER the injections (as a record after the fact)? This is yet another challenge for the prosecutor.

The other questionable piece of evidence relates to statements that Anderson allegedly told Hoskins, who is Bonds' former friend and business manager. Hoskins is apparently willing to testify that Anderson told Hoskins that he had injected Bonds with performance-enhancing drugs. This is also hearsay, since it will be offered to prove the truth of the matter asserted (i.e., that Anderson actually did inject Bonds with drugs). The best exception here is probably 804(b)(3)--when Anderson told Hoskins this, it was a statement against interest. We might need to know more about the context of the statement to rule on this issue. WAS it against Anderson's interest to say this to Hoskins? Did it potentially open him up to civil or criminal liability, or have the possibility of harming his pecuniary interest? Probably so--but the prosecutor will have to make this showing.

804(b)(3) also requires that Anderson be "unavailable" for trial--again, assuming he refuses to testify (as he has before), he will be considered "unavailable" under 804(a)(2).

Another possibility is that this was a statement by a co-conspirator (801(d)(1)(e))--but to use this exception the prosecutor would have to argue that Hoskins was part of the conspiracy and that these statements furthered the conspiracy. Again, we will have to know more about the context of the statements to make this ruling.

Finally, since this is a criminal case, we must consider the Sixth Amendment under Crawford. Are the statements made on the calendar or the statements made to Hoskins "testimonial?" Probably not--in neither case would Anderson reasonably believe that his statements would be used at a later trial. Although Bonds' attorney would no doubt want to cross-examine Anderson on this issue, the Constitution does not give him that right.

Read more: New York Times article on Barry Bonds

Lincolnīs Almanac Evidence
Posted: 2/2/2009

In honor of Abraham Lincoln's 200th birthday on February 12, here is information about one of Lincoln's famous trial victories. Lincoln defended William Armstrong against charges that he murdered another man during a fight that occurred at about 11 p.m. on August 29, 1857.

A prosecution witness testified that he saw Armstrong commit the murder. On cross-examination, the witness repeatedly assured Lincoln that he could see Armstrong clearly because there was a bright moon high in the sky that night.

Lincoln then produced an almanac showing that the moon was low in the sky and slipping below the horizon at the time of the fight. The jury acquitted Armstrong.

Would the almanac evidence have been admissible under the Federal Rules of Evidence? The almanac was hearsay and, at the time of the trial, was a recent publication--not an ancient document. Lincoln didn't call an expert witness, so he couldn't have relied upon the learned treatise exception. But the judge almost certainly would have taken judicial notice of the fact as one that was "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Rule 201(b). A similar common law principle must have admitted this key evidence during the 1850s.

Notably, however, some contemporaries questioned Lincoln's honesty when introducing the almanac evidence. Many townspeople remembered seeing the moon high in the sky on the evening of the murder. Some claimed that Lincoln used a fake almanac, created for the trial. They suggested, in other words, that Lincoln's source for this judicially noticed fact WAS questionable.

More than 100 years later, an amateur astronomy group explored the allegations of fraud and confirmed the veracity of Lincoln's evidence. The moon on August 29, 1857, was in an extreme phase of its lunar cycle, which decreased the time between its appearance high in the sky and its disappearance below the horizon. Thus, townspeople saw the moon high in the sky some time before the murder but the moon was, as the almanac reported, setting by the time of the killing.

For more information, see the March 2009 issue of "Sky and Telescope" magazine.

Fingering Liars: Ask Witnesses to Tell the Story Backwards
Posted: 1/24/2009

A substantial body of research demonstrates that people are poor lie detectors. Even professionals, like police officers, perform poorly in controlled tests; they often err in separating liars from truth tellers. How can attorneys tell if their clients are lying? How can they identify lies during witness interviews? And is there any way to reveal a witness's lies to the jury?

A recent article by Aldert Vrij and colleagues highlights an intriguing new approach. When forced to recount an event in reverse chronological order, liars demonstrated more noticeable cues of deceit. They mentioned fewer details, made more speech hesitations, spoke more slowly, and shuffled their legs and feet more often than truth tellers. Responding in part to these cues, police officers in a controlled experiment were able to detect liars and truth tellers more accurately when witnesses related their stories in reverse chronological order.

Similar techniques might work for lawyers. To check a client's or witness's truthfulness, ask the individual to tell the story backwards. To expose more visible cues of deceit on the witness stand, ask an opposing witness to relate details in reverse chronological order.

The research appears in Aldert Vrij et al., Increasing Cognitive Load to Facilitate Lie Detection: The Benefit of Recalling an Event in Reverse Order, 32 Law & Human Behavior 253 (2008).

Out-of-Court Statements By Young Children
Posted: 1/11/2009

Bush v. State, decided by the Wyoming Supreme Court in September 2008, offers an excellent fact pattern for classroom analysis: The case includes several intersecting issues that arise when young children make out-of-court statements. And, although the case was decided under Wyoming law, the Wyoming rules closely parallel the federal ones.

Lynn Bush, a 26-year-old wife and mother, disappeared in 1990; her body was never found. More than 15 years later, the state charged Bush's husband David with the murder. Among other witnesses, the State called the Bushes' only child. The child, a daughter, was only 2 years old when her mother disappeared; she was 18 when the trial occurred.

At trial, the daughter testified that she could not remember any of the events surrounding her mother's disappearance. The prosecutor then called two expert counselors who had treated the daughter when she was 3-5 years old. These counselors testified that the daughter suffered at that time from post-traumatic stress syndrome. They also reported graphic statements that the young child made, incriminating her father in the mother's murder. The defense objected to the latter statements.

On what theories might the daughter's out-of-court statements be admissible? During the trial and appeal, the prosecutor and courts offered three different theories:

1. The statements were admissible to show the information that the experts relied upon to reach their diagnosis of post-traumatic stress syndrome. Thus, they were not offered for the truth of the matter asserted. If so, the statements violated neither the rule against hearsay nor the Sixth Amendment (although one could question the broad "exception" to the Sixth Amendment that this rationale carves).

2. The statements were offered for medical diagnosis or treatment, admissible under Rule 803(4). The statements were not testimonial, so they also satisfied the Sixth Amendment.

3. The statements satisfied Rule 803(4) and, even if they were testimonial (because of evidence that the counselors had some contact with police investigating the homicide), the daughter testified at trial and was subject to cross-examination. Although she could not remember the underlying events, United States v. Owens, 484 U.S. 554 (1988), establishes that this type of availability satisfies the Confrontation Clause.

The trial court adopted the second theory, admitting the child's statements for the truth of the matter asserted. The Wyoming Supreme Court affirmed, relying primarily on the third theory to satisfy the Confrontation Clause. The courts also rejected the defendant's challenge to the daughter's competence at the time she made the out-of-court statements; the medical treatment exception does not require the declarant to be competent to testify in court.

The defendant has petitioned the U.S. Supreme Court to review the decision. Bush v. Wyoming, No. 08-7991 (filed Dec. 16, 2008). The Court is unlikely to grant the petition, because the Wyoming court's analysis accords with that of several other courts, but the case offers an excellent platform for classroom discussion or independent student analysis. The Wyoming opinion, cited below, offers more detail.

Thanks to Peter Tillers, Professor of Law at the Benjamin N. Cardozo School of Law, for noting this case. Check out his website at view article.

Read more: Bush v. State, 193 P.3d 203 (Wyoming 2008)

Sex and the Sequestered Jury
Posted: 12/22/2008

In 2000, a Missouri jury convicted Roberto Dunn of second degree murder. Dunn has petitioned for a new trial on the ground that two of his jurors had sex while sequestered at the hotel overnight. According to Dunn's petition, two of the sheriff's deputies also had sex while stationed at the hotel. Dunn's claim rests on a letter written by another juror, who claimed that the "acts of sex and insubordination were scandalous and unspeakable."

However unspeakable the acts, they seem unlikely to win Dunn a new trial. In federal courts, FRE 606(b) strictly limits jurors from offering testimony to impeach a verdict. In Tanner v. United States, the Supreme Court even refused to entertain post-verdict affidavits from jurors who reported drug and alcohol abuse among other members of the jury.

Missouri's evidence rules are less clear, but the jurors' off-hours sexual activities seem unlikely to constitute the improper "outside influences" or "extraneous prejudicial information" that the federal courts and most other jurisdictions require to admit post-verdict testimony from jurors. Nor does private sex between the deputies--as long as they stayed away from the jurors--seem to qualify.

A Missouri court, however, has set the claim for a hearing. So we will see how Missouri law treats sex among sequestered jurors.


Read more: St Louis Today

John Giuca and Rule 606(b)
Posted: 12/20/2008

The January Issue of Vanity Fair includes an article about Doreen Giuliano, a mother who took extreme measures to obtain evidence that she hopes will overturn her son's homicide conviction. Giuliano's son, John Giuca, was convicted of murder in 2005. Convinced he was innocent, Giuliano obtained a list of the jurors who served in the case, as well as transcripts of their voir dire answers. She shadowed several of the former jurors, looking for one who might provide evidence to challenge the verdict.

Giuliano settled on former juror Jason Allo. To befriend Allo, Giuliano changed her appearance and created a new identity--complete with an apartment near Allo's. The two became friends, and Giuliano surreptitiously taped all of their conversations with a recorder hidden in her purse. Allo never suspected that his new friend, "Dee," was John Giuca's mother.

Encouraged by Giuliano, Allo eventually spoke about the jury he had served on. Allo confided to Giuliano that he had known several of the witnesses in the case and had lied about those connections during voir dire. He also claimed that he was the first juror to push for a guilty verdict.

Armed with Allo's statements, Giuca's lawyer plans to file a motion for a new trial. The case arises under NY law, rather than the federal rules, but it raises a host of issues to consider under the federal rules: Is Allo's statement, reported by Giuliano, admissible under one of the hearsay exceptions? Is it admissible under Rule 606(b)? Should the judge refuse to consider the evidence because it was obtained by deception (and probably in violation of electronic surveillance laws)?

The case also highlights some of the policies underlying Rule 606(b). Are Giuliano's actions the understandable efforts of a family member convinced of a loved one's innocence? Or do these actions underscore the need for finality in the justice system? And what about the former juror's privacy interests?

Read more: Mother Justice

Exposing a Jurorīs Racial Bias?
Posted: 11/16/2008

A jury convicted Kerry Benally, a member of the Ute Mountain Ute tribe, of assaulting a Bureau of Indian Affairs officer with a dangerous weapon. After the guilty verdict, a juror executed an affidavit disclosing racist statements that the foreman and another juror had made during deliberations. Based on this evidence, the district judge vacated the verdict and granted a new trial.

The Tenth Circuit recently reversed, holding that Rule 606(b) precluded consideration of the juror's evidence about statements made during jury deliberations. United States v. Benally, 2008 WL 4866618 (10th Cir. Nov. 12, 2008). The court offered a well reasoned application of Rule 606(b): While acknowledging the high importance of addressing racism in jury deliberations, it noted Rule 606(b)'s equally compelling concerns for finality and legitimacy.

At least one other court has reached a conclusion contrary to the Tenth Circuit's: United States v. Henley, 238 F.3d 1111 (9th Cir. 2001). The cases, moreover, raise a complex mix of constitutional and statutory issues: Can a defendant use a juror affidavit relating racist statements during deliberation to show that the other juror lied on voir dire? Does the Constitution compel admission of statements showing racial bias in jury deliberations?

The Supreme Court's most recent interpretation of Rule 606(b), in Tanner v. United States, 483 U.S. 107 (1987), seems to favor the Tenth Circuit's application of Rule 606(b). The issue of racist statements, however, has been percolating in the lower courts and Benally seems to pose a direct conflict with at least one other decision. If Benallly petitions for certiorari, it is possible that the Supreme Court will accept the case. Watch for further discussion of this issue in the courts and scholarly articles.

Read more: United States v. Benally

Confronting the Laboratory Technician
Posted: 11/10/2008

Today the Supreme Court heard oral argument in Melendez-Diaz v. Massachusetts, a case that asks whether a lab report from a state forensic lab is "testimonial" evidence raising Sixth Amendment concerns. The prosecution in Melendez-Diaz introduced a lab report showing that a substance seized from the defendant was cocaine. Melendez-Diaz objected that he had a Sixth Amendment right to cross-examine the chemist who prepared the report.

SCOTUSwiki, linked below, has copies of briefs in the case as well as a transcript of the oral argument. The Justices' questions suggest that a majority may side with Melendez-Diaz, holding that lab reports of this nature are testimonial. A decision, however, will not appear until early next year.

Read more: SCOTUSwiki

Government Exhibits from Ted Stevens Prosecution
Posted: 10/28/2008

The Department of Justice has posted exhibits from the Ted Stevens case online. You can find a large number of photos, invoices, notes, emails, and other pieces of documentary evidence. The documents offer numerous examples of evidence admissible as a party-opponent statement, business record, or public record. Take a look and consider how the prosecutor admitted each of these documents. Watch out for hearsay within hearsay!

Read more: United States v. Stevens

Reluctant Trial Witness and Prior Statements
Posted: 10/20/2008

The Appeals Court of Massachusetts recently affirmed the convictions of two men charged with beating Boston Celtics player Paul Pierce in 2000. One of the prosecution's key witnesses, a college student who told police she had seen William Ragland stab Pierce, recanted her testimony at trial. To convict Ragland of the stabbing, the prosecutor relied on the witness's prior grand jury statement.

Massachusetts hearsay law differs somewhat from Federal Rule 801(d)(1)(A). The decision, however, offers a classic case of admitting a witness's prior statement to obtain a conviction. The Ragland facts also illustrate the admissibility of different types of statements. The reluctant trial witness had made statements incriminating Ragland to her college classmates, the police, and the grand jury. Which of these would be admissible under Rule 801(d)(1)(A)?

Read more: Commonwealth v. Ragland

 
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