The Supreme Court heard argument on Tuesday, October 5, in Michigan v. Bryant (No. 09-150). Bryant is a Confrontation Clause case that focuses on Davis's "ongoing emergency" doctrine. The police in Bryant questioned a gunshot victim about his assailant. The victim was bleeding, in pain, and awaiting medical help during the questioning, but the shooting had occurred about half an hour earlier. The victim died shortly after talking to the police, and the state offered his out-of-court statement to incriminate Bryant.
The Bryant argument was a lively one, displaying considerable disagreement among the Justices. Several Justices voiced confusion about how to apply the "ongoing emergency" doctrine; some showed frustration with Crawford's overall approach. Dissension emerged over whether the Confrontation Clause should turn on "testimonial statements," as it does under Crawford, or on "reliability," as it did before that landmark decision. The Justices even debated the status of dying declarations as possible exceptions to the Crawford rule. The state did not preserve its dying-declaration argument in the lower courts, but the Court might turn to that exception.
Justice Kagan recused herself from the case, so only eight Justices will participate in deciding Bryant. The sharply worded oral argument suggests that the decision will at least be divided-and may break some new ground under the Confrontation Clause.
If you want to test your understanding of the hearsay exceptions, Confrontation Clause, and policies underlying those two areas of law, see if you can answer the Justices' questions in Bryant: It was a tough oral argument.
Many commentators have speculated about the increasing use of "tweets" (Twitter postings) as evidence. But few have noted a high-profile recent example. In striking down the military's don't-ask-don't-tell policy as unconstitutional, District Judge Virginia Phillips cited a tweet from Admiral Mike Mullen, Chairman of the Joint Chiefs of Staff. In a tweet posted to the Joint Chiefs of Staff website, and offered in evidence by the plaintiffs, Admiral Mullen declared: "Stand by what I said: Allowing homosexuals to serve openly is the right thing to do. Comes down to integrity." The judge carefully noted that the Twitter account had been verified. Slip op. at 66.
When the Chairman of the Joint Chiefs of Staff uses Twitter, we know that the technology has come of age!
Allan and Hana Green are plaintiffs in a civil suit. They are unskilled in using email so their attorney sent time-sensitive communications to their son Daniel's email account. Daniel conveyed these communications to his parents.
The defendants demanded access to these emails, claiming that Daniel's participation waived the attorney-client privilege. A federal magistrate agreed, but the District Judge reversed this finding. Judge Kimba Wood noted: "Email permits attorneys and their clients to engage in prompt communication, often regarding time-sensitive matters. A client lacking proficiency in Internet technology should not be prevented from enjoying the advantages of email correspondence for fear that the necessary assistance of a third party . . . will lead to the forfeiture of the attorney-client privilege." Under NY law, Daniel Green's email assistance was "necessary for the delivery or facilitation" of attorney assistance.
Hat tip to Ann Murphy, Associate Professor of Law at Gonzaga University for noting this case.
We previously reported on the Tenth Circuit's opinion in United States v. Benally, holding that Rule 606(b) precluded the district court from considering post-trial juror evidence about racist statements made during deliberations. The Supreme Court denied certiorari in that case, although Benally may return to the High Court after sentencing.
Meanwhile, the First Circuit issued a conflicting opinion, United States v. Villar, 586 F.3d 76 (1st Cir. 2009). The First Circuit held that the Fifth and Sixth Amendments create a limited exception to Rule 606(b): A trial judge has discretion to receive testimony otherwise forbidden by 606(b) if the testimony would reveal juror bias violating those amendments.
The government did not petition the Supreme Court to review the result in Villar. Instead, the United States allowed the case to return to the district court. On remand, the trial judge first examined the juror who had notified defense counsel about racist statements from other jurors. The juror testified that other jurors made statements about Villar, who was from Puerto Rico, such as: "I guess we're profiling, but they cause all the trouble." "I don't know why we're spending all this time and money on an illegal alien." "You can tell [he's guilty] just by looking at him." "We don't have any of those people in our town, and I'm really glad." "These people cause lots of trouble, and if we [don't] convict him, then [he'll] go out and do something else."
After hearing the juror's testimony, the trial judge called all the jurors back for an evidentiary hearing. That hearing lasted more than 5 hours. At the end of the hearing, the trial judge orally denied Villar's motion; his reasoning does not appear in the current record.
Villar appealed again to the First Circuit in late June, so that court may issue another opinion on the issue of juror bias, Rule 606(b), and the grounds for setting aside a conviction.
Proposition 8 and Expert Evidence
Judge Vaughn Walker, Chief Judge of the United States District Court for the Northern District of California, has struck down California's controversial Proposition 8. The proposition amended California's constitution to prohibit same-sex marriage. Walker held that the amendment violated federal due process and equal protection rights--even under a rational basis standard.
Intriguingly, the decision rests as much on evidence law as on constitutional reasoning. Walker's evaluation of the state's expert witness plays a key role in the opinion.
In addition to illustrating the trial judge's role in "gatekeeping" expert testimony, the Prop 8 case raises broader issues about the role of evidence in constitutional law disputes. Although appellate courts struggle to define the standards used to enforce constitutional provisions, those abstract standards all require facts to operate. Trial judges play an important role in operationalizing the constitutional standards.
Many commentators have pointed out that Walker's focus on evidence may insulate his constitutional conclusions on appellate review. That's true but, alternatively, Walker's approach could turn the case into an evidence one. When the Ninth Circuit and Supreme Court review the Prop 8 case, will they issue new pronouncements on the admissibility of expert testimony in cases of this nature?
Hat tip to Kenneth Klein for immediately noting the role of evidence law in this opinion!
Revision to Statement-Against-Interest Hearsay Exception
On April 28, the Supreme Court approved a modest revision to Rule 804(b)(3), which creates a hearsay exception for statements against interest. The rule previously required criminal defendants to provide corroborating circumstances for statements admitted under this exception. The revised rule requires both criminal defendants and prosecutors to satisfy the corroboration condition if they rely upon the statement-against-interest exception.
Neither the prior rule nor the amended version requires corroboration in civil cases for statements admitted under this exception.
The amendment will take effect on December 1, 2010, unless Congress objects to the provision. Congressional action is unlikely; the amendment codifies a practice that many courts had adopted and the proposal elicited no objections from lawyers or judges.
The only controversy surrounding the amendment relates to a statement that originally appeared in the Advisory Committee's notes on the proposed amendment. Those notes initially observed: "The Committee found no need to address the relationship between Rule 804(b)(3) and the Confrontation Clause, because the requirements of this exception assure that declarations admissible under it will not be testimonial."
That statement was incorrect; statements to police officer could qualify for 804(b)(3) and also satisfy the Supreme Court's evolving definition of "testimonial."
The notes accompanying the approved version of 804(b)(3) omit the erroneous statement about statement against interest and the confrontation clause. The interaction of those two remains a matter of debate in the lower courts.
Facebook and other social media are feeding the files of divorce lawyers and others who need "dirt" on an opponent. Many litigants fail to understand the dangers of these sites.
This article on CNN documents the type of evidence lawyers are finding on facebook. Most of this evidence is admissible in the courtroom: it is easily authenticated and, in many cases, constitutes the statement of a party opponent.
Lawyers will need to be much more aggressive in counseling their clients about the trails of evidence they generate on social media sites. Meanwhile, these sites make lawyering more interesting for some lawyers and challenging for others.
Courts in numerous states are responding to jurors who check facts on their iPhones, tweet information to friends, and rely upon television shows like CSI for information. Ohio recently approved a general jury admonition specifically warning against these practices. For an example of how to instruct jurors in the internet age, see the Ohio rule below.
Work Product Doctrine: Supreme Court Denies Certiorari in Textron
The Supreme Court today denied certiorari in an important case involving the work-product doctrine, Textron v. United States. Many evidence professors, as well as practicing attorneys, had been watching the case.
In Textron, the First Circuit held en banc that legal analyses do not warrant work product protection unless they are prepared specifically for litigation. The documents in Textron were tax-accrual documents, which assessed how much money the company should set aside for possible tax liability. To make that calculation, Textron's lawyers evaluated how likely the company was to prevail on positions it had taken while computing its taxes. The IRS later sought these papers because it suspected unlawful tax evasion by Textron.
The papers did not qualify for the attorney-client privilege because Textron had shared them too widely with its outside accountants. Nor, the First Circuit held, did the documents deserve work product protection: Textron and its attorneys prepared the documents to support certain securities filings and other business goals, not in anticipation of litigation. Litigation over Textron's tax liability was theoretically possible, but that is true of any business decision. Applying the work-product doctrine to Textron's tax-accrual papers, the First Circuit concluded, would stretch the doctrine too far.
Other circuits have ruled differently, allowing companies to claim broad work-product protection for papers like tax-accrual assessments. Because of that conflict, as well as the importance of the issue to businesses and their lawyers, many observers expected the Supreme Court to grant certiorari on the Textron case. The Court's rejection of the petition leaves the First Circuit's decision in place--and also maintains the inconsistency among circuits.
The issue is unlikely to go away. Businesses increasingly involve their lawyers in a complex array of assessments that include accountants and other professionals. If these consultations are not protected by the attorney-client privilege or work-product doctrine, businesses may be deterred from seeking needed legal advice. On the other hand, especially in the wake of many corporate scandals, the IRS and other government agencies assert a plausible interest in viewing these documents.
The problem litigated in Textron is likely to remain a major policy and doctrinal issue in the field of privilege. Watch for more litigation in this area over the next few years.
This month's ABA Journal has a feature story about Joel Hardin, a retired Border Patrol agent who testifies about the footprints and other signs that people leave behind. He has testified for both prosecutors and defendants in criminal cases. Some praise his insights; others say that the testimony is too unreliable for court admission.
Hardin's work offers an intriguing example of expert evidence. Should the courts continue to admit testimony like this?