The Art of Cross-Examination

December 20, 2011

Every good trial lawyer knows how to effectively cross-examine a witness. Unfortunately, very few law schools teach students how to do it, so lawyers usually learn the basics on the job slugging it out in the trenches. That and watching the masters at work is how I learned the craft.

You have to know your case thoroughly and you have to strategize. Sometimes the most effective cross-examination is to rise and say, “I do not have any questions for this witness, your Honor.”

Let us say, for example, that the witness is a nervous and frightened old lady who did not say anything that hurt your client. You might be able to figuratively smack her around on some minor point, but toward what end? The jury would hate you for showing off at her expense. The last thing in the world that you want to do during a jury trial is piss off the jury.

When you decide to cross-examine a witness, you must know exactly what you want to accomplish before you ask a question, and to the maximum extent possible, you must always ask leading questions that can be answered with a simple “yes” or “no.” Never ask open-ended questions that permit a witness to ramble on retelling their story. The jury is more likely to remember what the witness said, if you provide the witness with an opportunity to retell their story.

You cannot get anywhere arguing with or shouting down a witness and calling him a liar. You must always be polite and respectful. Unless the witness is a child, always address the witness formally as Mr., Ms. or Mrs., Dr., Sergeant, Officer, etc. Never address the witness by their first name and always pronounce the person’s name correctly. Remember that you are an officer of the court and comport yourself correctly.

Never ever ask a question, if you do not know what the answer will be. I recall trying a case with a lawyer friend who shall remain nameless. Our respective clients were L.A. gang members (Bloods) indicted in federal court in Tacoma, WA with participating in a multi-state drug conspiracy distributing massive amounts of crack cocaine. In all there were 10 defendants, including our clients.

The government’s case against his client was very weak. Although federal agents arrested his client in the gang’s drug house in Tacoma at the same time they busted the other defendants, the government did not have a witness who could tie him to the gang or implicate him in any drug dealing. They did have a photograph, however, which they seized during a search of the house, in which my friend’s client was flashing gang signs over a pile of money on a table in a kitchen.

The government’s last witness was an FBI agent whom the government called to testify about serving the search warrant and what they found in the residence after they arrested the defendants and searched it. The photograph was one of the last items in a laundry list of evidence that the agents seized. The agent identified it as a photograph of the defendant that he found in the defendant’s backpack. The Assistant U.S. Attorney moved the photograph into evidence and the judge admitted it.

After the Assistant U.S. Attorney concluded the direct examination of the FBI agent without further reference to my friend’s client, I figured his client was home free because the kitchen depicted in the background of the photograph differed significantly from the kitchen depicted in other photographs of the kitchen in the drug house taken by the agents when they raided and searched it. “Not Guilty,” the two sweetest words in the English language, as we defense attorneys used to say, appeared to be the almost certain outcome for my friend’s client, since notwithstanding the gang signs and the pile of money, the government had not presented any evidence regarding when or where the photograph was taken and no witness had ever seen him in the drug house or associating with the defendants who were arrested there.

But it was not to be.

My friend walked over to the lectern, whereupon the following exchange took place,

“Good afternoon, Special Agent Jones.”

“Good afternoon, Counsel.”

“Madame Clerk, would you please hand the witness Government’s Exhibit 1023 A. Thank you.”

Now, Special Agent Jones. I believe you testified on direct that you seized this photograph from my client’s backpack after you arrested him, is that correct?”

“Yes, Sir. Yes, I did.”

“Now, you spent several hours in the house where my client was arrested searching, seizing, and inventorying the evidence that you seized, didn’t you?”

“Yes, sir. I actually spent 3.3 hours there.”

“So you had plenty of time to familiarize yourself with every room in the house, including the kitchen, is that correct?”

“Yes, Sir.”

“And the kitchen depicted in the background of Government’s Exhibit 1023 A is not the same kitchen, is it?”

“Uhm, you’re right. It isn’t the same kitchen.”

“You’re certain about that, aren’t you?”

“Yes, I am.”

“In fact, you don’t know when or where that photograph was taken, do you?”

“Well, Counselor. As a matter of fact, I do.”

May the record reflect that for the next five minutes the back of my friend’s neck turned an ever intensifying red hue as the smiling Special Agent identified the kitchen as a kitchen in the same gang’s drug house that he had searched pursuant to a search warrant in Los Angeles the day before his client was arrested.

Part 2 tomorrow: Cross-examination by prior inconsistent statement.


Horizontal Gaze Nystagmus (HGN) And The Frog Gravy Legal Case

October 25, 2011

In Crane Station’s case, the Court of Appeals said,

In the present case, we hold that Deputy McGuire had probable cause to arrest Leatherman for DUI. Deputy McGuire testified that Leatherman appeared to be under the influence of something, despite his observation that she was not driving erratically or weaving. Furthermore, Leatherman failed the HGN test, which reveals intoxication by alcohol or some other drug, although she later passed the breathalyzer test. Finally, the product information for Klonopin (Clonazepam) attached to Leatherman’s brief states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.” Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI. Therefore, Deputy McGuire’s warrantless arrest of Leatherman did not deprive her of her constitutional rights against illegal search and seizure.

As we shall soon see, this conclusion is unsupported by the evidence and makes no sense.

The Court begins its analysis of the evidence by noting that the deputy

testified that Leatherman appeared to be under the influence of something, despite his observation that she was not driving erratically or weaving.

. So, the Court concedes that there was nothing improper about her driving and it does not say that she was unsteady on her feet, smelled of alcohol, or that she exhibited any mental confusion. In other words, she exhibited no physical or mental impairment.

The Court continued,

Furthermore, Leatherman failed the HGN test, which reveals intoxication by alcohol or some other drug, although she later passed the breathalyzer test.

So, in other words, she passed the breathalyzer test ruling out alcohol intoxication. (Actually it was a portable breath test, or PBT, that the deputy administered to her at the roadside before he handcuffed her and placed her in the back of his patrol vehicle.)

Therefore, with the exception of the HGN test result that I will discuss next, the Court has conceded that the deputy did not see any bad driving or physical evidence of alcohol or drug impairment.

What about the HGN?

HGN is an acronym for horizontal gaze nystagmus. The test was described recently by the Supreme Court of Illinois in People v. McKown, 924 N.E.2d 941 (2010):

Nystagmus is “an involuntary, rapid, rhythmic movement of the eyeball, which may be horizontal, vertical, rotatory, or mixed, i.e., of two varieties.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). The medical dictionary lists 45 types of nystagmus. For example, ataxic nystagmus is unilateral and occurs in individuals with multiple sclerosis. Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). Congenital nystagmus “may be caused by or associated with optic atrophy, coloboma, albinism, bilateral macular lesions, congenital cataract, severe astigmatism, and glaucoma.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003). Gaze nystagmus, which is at issue in the present case, is “made apparent by looking to the right or to the left,” as opposed to fixation nystagmus, “which appears only on gazing fixedly at an object,” or latent nystagmus, “which occurs only when one eye is covered.” Dorland’s Illustrated Medical Dictionary 1296 (30th ed.2003).

The methodology employed by law enforcement officers for conducting an HGN testing as a part of field-sobriety testing is explained in detail in our earlier opinion. In brief, the officer first questions the subject to determine whether he or she has any medical condition or is taking any medication that might affect the results of the test. If not, the officer performs a preliminary test to determine whether the pupils of the subject’s eyes are of equal size and whether the eyes “track” equally as an object is moved, at eye level, from side to side. If so, the HGN test itself is performed. The officer looks for three “clues,” assessing each eye separately. The three clues are lack of smooth pursuit, distinct nystagmus at maximum deviation, and the onset of nystagmus at an angle less than 45 degrees. One point is assigned for each clue that is present in either eye. Thus, the maximum score is six, which would indicate all three clues present in both eyes. A score of four or more is considered “failing” and indicative of alcohol impairment. McKown I, 226 Ill.2d at 249-50.

After reviewing all of the evidence presented by the prosecution and the defense relative to the HGN Test and whether it is generally accepted as an indicator of alcohol or drug impairment [the Frye test or standard for the admissibility of scientific evidence], the Supreme Court concluded,

1. HGN testing satisfies the Frye standard in Illinois.

2. HGN testing is but one facet of field sobriety testing and is admissible as a factor to be considered by the trier-of-fact on the issue of alcohol or drug impairment.

3. A proper foundation must include that the witness has been adequately trained, has conducted testing and assessment in accordance with the training, and that he administered the particular test in accordance with his training and proper procedures.

4. [Testimony regarding] HGN testing results should be limited to the conclusion that a “failed” test suggests that the subject may have consumed alcohol and may [have] be[en] under the influence. There should be no attempt to correlate the test results with any particular blood-alcohol level or range or level of intoxication.

5. In conjunction with other evidence, HGN may be used as a part of the police officer’s opinion that the subject [was] under the influence and impaired.” (Emphasis in original.)

(Emphasis supplied)

What exactly must a police officer do to properly administer the HGN test? The Illinois Supreme Court details the NHTSA procedure in its earlier decision remanding the McKown case to the trial court with instructions to conduct a Frye hearing. People v. McKown, 875 N.E.2d 1029, 1032 (2007):

Because alcohol consumption can cause nystagmus, police officers have been trained to check a person’s eye movements when attempting to determine if a driver has been driving while impaired by alcohol. The National Highway Traffic Safety Association’s (NHTSA) DWI Detection and Standardized Field Sobriety Testing Instructor Manual sets forth the procedure for administering an HGN test in the field. First, the officer is required to ask the subject if he or she wears contact lenses or has any medical impairment that would affect the test results or prohibit the subject from taking the test. If the subject claims to wear hard contacts, or have natural nystagmus or any other condition that may affect the test results, the officer should note the condition but still administer the test if possible. NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Manual, ch. VIII, at 6-18 (2002).

After these preliminary questions, the officer asks the subject to focus on an object, such as a pen, held just above eye level, about 12 to 15 inches from the subject’s nose, and to follow the object as the officer gradually moves it from side to side.

While conducting the test, the officer looks for six nystagmus “clues,” three in each eye, that, according to the NHTSA Manual, indicate impairment. If four or more clues are present, the subject is determined to have failed the test and be impaired. The clues are (1) lack of smooth pursuit; (2) distinct nystagmus at maximum deviation, meaning any nystagmus exhibited when the eyeball is looking as far to the side as possible; and (3) angle of onset of nystagmus prior to 45 degrees, meaning any nystagmus that occurs before the object reaches a point that the officer determines to be 45 degrees from the center of the suspect’s face. No measuring apparatus is used in the 45-degree test. The officer is then instructed to have the subject perform the walk-and-turn field-sobriety test and the one-leg-stand field-sobriety test, compile the results of the three tests, and then make the decision whether to arrest the subject. NHTSA DWI Detection and Standardized Field Sobriety Testing Instructor Manual, ch. VIII, at 6-18 (2002).

How did Deputy McGuire administer the HGN test? This is how her lawyer described it in the brief she filed in the Court of Appeals:

McGuire should not have administered the test in the first place. McGuire did not testify to any clue Rachel Leatherman gave that she was impaired. She drove in compliance with traffic laws. She produced her license and registration quickly after he asked for them. Her eyes were not watery or bloodshot. Her pupils were not pinpoint or dilated. She was not scratching as some persons who inject drugs might. She did not have a runny nose as is common with some cocaine users. She did not have scabs or needle marks, also common with intravenous drug users. She was not coughing or short of breath; she was not sneezing or sweating. She did not complain of nausea or chest pains. Her face was not flushed. She was alert.

McGuire admitted at the suppression hearing that the HGN result by itself could not provide probable cause. Unfortunately, even assuming arguendo that other indicators had been present, McGuire improperly administered the test.

The National Highway Traffic Safety Administration (NHTSA) is an administrative agency housed within the United States Department of Transportation. NHTSA oversees and regulates all matter related to traffic safety. Since 1977, NHTSA has studied various field sobriety tests in order to develop a standardized set of field sobriety tests. As a result of those tests, NHTSA warned police officers to position DUI suspects so that they do not face blinking cruiser lights or oncoming traffic because the lights can create a false nystagmus (optokinetic nystagmus). Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement.

The field video shows that McGuire positioned Rachel Leatherman facing the blinking cruiser lights and the oncoming traffic. The test was neither administered properly nor documented [he never documented what he did and any of the angles when nystagmus occurred; he simply testified that “she failed all six clues”].

McGuire testified that Leatherman told him she had a prescription for Metoprolol because she had hypertension. Documentation for Metoprolol shows that a side effect can be nystagmus. Under those circumstances, McGuire finding “all six clues” should be found legally meaningless.

As if the Court had not even bothered to read her brief, it ignored her powerful and outcome dispositive legal argument without comment.

Instead, the Court focused on Clonazepam.

Finally, the product information for Klonopin (Clonazepam) attached to Leatherman’s brief states that patients taking that medication “should be cautioned about operating hazardous machinery, including automobiles, until they are reasonably certain the Klonopin therapy does not affect them adversely.”

Notice that the warning does not say that Clonazepam causes physical or mental impairment and no one who takes it in any dosage should ever operate hazardous machinery, including automobiles.

Clonazepam is a benzodiazepine that is routinely prescribed as an anti-seizure medication and to control anxiety. In other words, it is prescribed to make people feel normal so they can lead a normal life doing normal things like driving motor vehicles. The warning only applies to the initial dosage that can be adjusted if it’s too strong. There was no evidence in this case regarding the dosage or how long she had been taking it.

The Court’s refusal to mention, discuss, or distinguish her argument regarding the legally invalid HGN test and its reliance on a misinterpretation of the warning on the product insert for Clonazepam borders on mendacity.

The Court of Appeals concluded,

Therefore, the observation of Leatherman’s glassy eyes and odd behavior coupled with her admission that she was taking prescription medication that included a warning about driving was sufficient to provide Deputy McGuire with probable cause to arrest her for DUI.

Well, excuse me. Odd behavior. What odd behavior? Deputy McGuire testified at the suppression hearing that he did not witness any odd behavior, or he would have noted it in his report. There was no reference to any odd behavior in his report and he was the only witness at the suppression hearing.

Apparently, operating a motor vehicle in full compliance with all traffic laws without speeding, weaving or swerving, and quickly pulling over and stopping in the emergency lane beside the road when signaled to do so by a police officer in a marked police vehicle constitutes probable cause to arrest in Kentucky.

As we like to say in the blogosphere, the Court of Appeals has some splainin’ to do.

Author’s note: People v. McKown is an Illinois Supreme Court case and not binding legal precedent in Kentucky. I used it because it is well written and it lays out the NHTSA procedure for conducting the HGN that Crane-Station’s lawyer included with her brief, together with the NHTSA publication that explicitly warns law enforcement officers not to position suspects facing police cruiser lights and oncoming traffic. See: Horizontal Gaze Nystagmus: The Science and the Law, A Resource Guide for Judges, Prosecutors and Law Enforcement. Kentucky follows the same rule, but the opinion is not recent and not well written.

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.


Conspiracy

October 24, 2011

The crime of conspiracy consists of an agreement between two or more people to commit a specific crime and one of the members of the conspiracy commits an act in furtherance of the conspiracy.

For example, let’s revive the characters in our hearsay hypothetical and say Beauregard, who is still married, has a thing for Amanda that resembles a pickle in his pocket, but she loves Peter Piper. In fact she told Beauregard that she had just moved into Peter Piper’s apartment. They are living together and discussing getting married.

Poor Beauregard! Unrequited love is difficult, but not as difficult as being married to Zelda, who is a trust fund baby and a dominatrix to boot, literally. The money is nice, but he loses access to it, per the prenup, if he leaves her. Talk about golden handcuffs. My oh my!

Over a few beers one night, make that quite a few beers, Beauregard confesses his love lust for Amanda to his friend Igor Ivarson and they agree that Peter Piper needs to die.

Amanda and Peter Piper do not know Igor, so Beauregard and Igor agree that Igor will shoot Peter Piper when Peter and Amanda arrive home from work the next day.

Beauregard tells Igor that he has another friend, Bernie the Zipper, who knows how to keep his mouth shut, and Bernie has a knack for obtaining guns with obliterated serial numbers. So, the deal is Beauregard will acquire an untraceable gun from Bernie and give it to Igor. When Igor commits the murder, Beauregard will be with Zelda doing what comes naturally, to her. Thus, he will have an alibi.

Pleased with themselves and their plan, they have another beer, and drink to better days.

Beauregard calls Bernie the next morning and tells him he wants to buy a gun and Bernie being Bernie, he agrees to sell him one that’s untraceable, but it’s going to take some time to find one. Bernie tells Beauregard that he’ll call him when he’s ready to deliver.

Later in the day after he sobers up, Igor calls Beauregard and tells him that what seemed like a cool idea no longer is a good idea. In fact, he thinks the idea is crazy and he just called the cops and spilled the pickles, er beans. They are on their way to pick him up for questioning.

What, if any, are the legal consequences?

First, ask yourself what are the elements of the crime of conspiracy? Elements, by the way, are what a prosecutor must prove beyond a reasonable doubt to obtain a conviction.

Elementary, my dear Watson. Eh, what?

The first element is proof of an agreement to commit a specific crime. Check. Beauregard and Igor agreed to participate in a murder with each of them performing specific acts to make it happen.

Is that it?

Nope, you forgot the overt act. Remember the phone call.

Beauregard called Bernie and told him he wanted to buy an untraceable gun. While the call by itself was not illegal, Beauregard called him to facilitate the commission of the crime. Therefore, he committed an overt act in furtherance of the conspiracy.

Now what?

Well, the crime of conspiracy was completed with the overt act.

Does it matter that the object of the conspiracy was not completed, or that it was impossible to complete, given Igor’s decision to withdraw from the conspiracy and call the police?

No. Impossibility is not a defense.

Does it matter that Igor Ivarson did not know that Beauregard had called Bernie the Zipper before he called the police?

No, if it was reasonably foreseeable that Beauregard would call Bernie, which it was because Beauregard told him that he was going to call him.

By calling the police, did Igor withdraw from the conspiracy in timely fashion so that he is not guilty of conspiracy?

Yes, to withdraw from a conspiracy, a member of the conspiracy must contact the police and inform them of the conspiracy and then stop participating in the conspiracy.

Did Bernie join the conspiracy?

No, he did not know why Beauregard wanted the gun and did not agree to provide it so that it could be used to kill someone. He did not know that there was a conspiracy to kill Peter and did not agree to join it.

Since a conspiracy requires at least two people and Igor withdrew from the conspiracy, can Beauregard be convicted of conspiracy when he is the only member?

Yes, because the crime of conspiracy came into being after the agreement to kill Peter when he committed the overt act in furtherance of the agreement by calling Bernie the Zipper.

Does Beauregard have a defense to the charge based on voluntary intoxication or diminished capacity?

No, because his effort the next morning to contact Bernie the Zipper demonstrated that he recalled what he agreed to do and he followed up on what he agreed to do when he was sober.

The crime of conspiracy is easy to prove. Conspiracies typically begin to unravel when a member of the conspiracy is arrested and agrees to inform on his coconspirators in exchange for leniency. In drug cases, the cooperating coconspirator usually introduces an undercover cop to his fellow coconspirators as an interested buyer or seller of drugs. Several deals are negotiated and then the big bust happens during a deal involving sufficient drugs to trigger minimum mandatory sentences.

Under federal law (the United States Sentencing Guidelines), the sentences are based on the total amount of drugs dealt over the course of the conspiracy and each member of the conspiracy is liable for the whole amount even though they may not have known about some of the deals. In this way, wives and girlfriends who relay messages to their husbands and boyfriends from coconspirators generally knowing that the messages relate to drug dealing, find themselves in a hell of a jam when the bust goes down because they are liable for all the drugs dealt by all members of the conspiracy, even though they knew very little about what was going on.

We also have been seeing federal prosecutions for conspiracy to commit acts of terrorism where the feds have inserted an undercover informant into a group of malcontents who talk about revolution in order to get them to do what they like to talk about doing. The informant facilitates the offense.

Does that constitute entrapment, which is a defense?

Depends on whether the malcontents were predisposed to commit the offense and the undercover informant merely provided them with an opportunity to do what they already were predisposed to do. If so, entrapment is not a defense.

To keep fear alive so that the government can continue to eliminate our civil rights without a peep in protest, the feds continue to seek out malcontents and infiltrate them with instigators to get their periodic busts and the attendant headlines. They operate as close to the line on entrapment as they can and sooner or later they are going to cross it.

Cross posted at Firedoglake/MyFDL and the Smirking Chimp.


Who Says? Hear Says! Exceptions, That Is

October 23, 2011

Philosophical thought for the day: A rule is not a rule without exceptions, and there are no exceptions, damnit!

Good afternoon class.

Welcome to Hearsay 103.

There are so many exceptions to the hearsay rule that one might almost say the exceptions have swallowed the rule. I will discuss several of them in some detail and merely list the others because they do not come up all that often and they are not difficult to understand. For future reference, you can find them listed in rules 803 and 804 of the Federal Rules of Evidence, which are cited as FRE 803 and FRE 804. By the way, most of the states have adopted the Federal Rules of Evidence with minor changes and they use the same numbering system. Most of the minor changes are due to a state modifying the federal rule in order to retain the rule or a favored part of the rule that the state used to follow. For your information, the rules of evidence were promulgated by the various supreme courts pursuant to their rule making authority under the state constitutions. For the most part, judges and lawyers in all state and federal courts play with the same set of evidentiary rules and that is a good thing.

As I pointed out in our first class regarding the hearsay rule, the rule is designed to exclude unreliable evidence. Why bother? you might ask. The answer is that all of the rules are designed to filter the evidence that jurors get to hear so that they will not place undue emphasis or reliance on evidence that has little weight or importance. Put another way, judges and lawyers do not trust jurors, so they want to censor what they get to consider. The hearsay rule is a good example.

Recall our example in the first class involving the hapless Peter Piper who will never get to pick his fabled peck of pickled peppers due to Igor Ivarson’s storming rampage through the red light slamming Mr. Piper’s immortal soul through the uprights of heaven leaving his fractured mortal coil bereft and alone in a puddle of blood in the crosswalk of life. Ah, yes. T’was a pity, indeed.

So, we had B, let’s give him a name and call him Beauregard, shall we? Okay, and let’s also give A a name and call her Amanda. So, Beauregard is on the witness stand and the prosecutor asks him,

“What if anything did Amanda say to you at dinner about something that happened at the intersection?”

But for the hearsay objection by defense counsel that any reasonably conscious and sentient judge would have sustained because the answer is offered to prove the truth of the matter asserted in the statement, Amanda would have answered,

“Igor Ivarson ran right through the red light and hit Peter Piper in the crosswalk.”

You see, judges and lawyers fear that, if jurors heard the answer, they might place undue emphasis on the un-cross-examined statement of a witness who never actually testified. How can they reasonably and reliably assess Amanda’s credibility by listening to Beauregard drone on about dinner with Amanda?

Enough said.

Now, let’s tweak our fact pattern so that we remove Amanda and Beauregard from their cozy repast at their intimate restaurant and place them together at the intersection with Beauregard talking to his wife on his cell phone while staring at the sky when Igor Ivarson hits the unfortunate Peter Piper. He does not see the accident, but Amanda does. She utters a scream and says, “Oh my God. Igor Ivarson ran the red light and hit Peter Piper in the crosswalk.”

Flash forward to trial again with Beauregard on the stand and the prosecutor now asks,

“When you were standing on the corner of the intersection talking on your cell phone, what, if anything, did you hear Amanda say?”

Assume you are defense counsel and you stand up and say, “Objection, your Honor. The question calls for hearsay.”

What happens?

Well, I’ll tell you what happens.

The judge says: “Objection overruled. You may close your mouth and sit down, counsel.”

Saying, “But Judge. Professor Masoninblue says that’s hearsay because its offered to prove the truth of the matter and besides, we all know that we don’t trust juries, right Judge?” will not help you.

Welcome to the first two and likely most often used exceptions to the hearsay rule: Present Sense Impression and Excited Utterance.

FRE 803(1) defines a Present Sense Impression as follows:

A statement describing or explaining an event or condition made while the declarant was perceiving the event, or condition, or immediately thereafter.

FRE 803(2) defines an Excited Utterance as follows:

A statement relating to a startling event or condition while the declarant was under the stress of excitement caused by the event or condition.

Amanda’s statement is admissible hearsay under both the present sense impression and excited utterance exceptions to the hearsay rule.

Why make an exception for these two types of statements and not the statement during the conversation at dinner?

Because the declarant, Amanda, was “describing or explaining an event or condition while [she] was perceiving the event”, and she was “under the stress of excitement caused by the event.” Her statement was an immediate reaction to the accident. She did not have an opportunity to reflect, reconsider, and possibly change or even forget her statement. For that reason, her statement is regarded as sufficiently accurate and reliable to be admitted into evidence, even if she does not testify and is not subject to cross examination.

In fact the availability of the declarant to testify at a hearing or trial is immaterial to all of the 23 exceptions to the hearsay rule that are listed in FRE 803.

I see that we are at 1000 words, so we have reached the end of today’s class and we’ll have to continue our study of the exceptions to the hearsay rule tomorrow.

Time flies when you’re having fun.

Cross posted at my website and the Smirking Chimp.


Hearsay, Part Deaux: Frog Gravy Legal Case

October 23, 2011

Good afternoon, class.

Now that you are experts regarding what constitutes hearsay, let’s take a look at an interesting issue in Crane-Station’s case.

The arresting officer, McCracken County Sheriff’s Deputy Eddie McGuire testified at her Preliminary Hearing that, after she was thoroughly searched at the roadside by a female officer who did not find any contraband or paraphernalia, he arrested her for DUI, handcuffed her with her hands behind her back, placed her in the backseat of his patrol vehicle, and transported her to Lourdes Hospital in Paducah for a blood draw. As he was assisting her to get out of the backseat at the hospital, she told him that her watch had fallen off her wrist during the ride and it slipped beyond her reach behind the seat. She asked him to please retrieve it, which he agreed to do.

When the returned to his vehicle after the blood draw, he unlocked the back door, pulled the seat forward, and reached beneath it to grab the watch. When he handed her the watch, he also showed her a small crumb-like object and said, “Sure looks like heroin to me.”

He also testified that he field tested the substance after he took her to jail and it tested negative for the presence of heroin. He said he did not field test it for cocaine because “We knew all along it would be crack.”

In the trial judge’s chambers before jury selection on the first day of the trial, the prosecutor asked the trial judge to prohibit the defense from mentioning during jury selection and opening statement her statement about her watch and her request to retrieve it on the ground that the statements were inadmissible hearsay unless he offered them into evidence as an admission by a party opponent, which he did not intend to do. He also asked the judge to prohibit the defense from attempting to introduce her statements into evidence during the trial or to mention them in closing argument.

The trial judge agreed despite defense counsel’s objection.

To make matters more bizarre, Deputy McGuire changed his testimony regarding how he retrieved the watch. Without mentioning her statements, of course, he said he saw her watch and the rock together in the seatbelt crack in plain view on the seat beside her before he helped her to get out of the backseat after they arrived at the hospital.

When her attorney attempted to confront him on cross examination with the deputy’s prior inconsistent testimony under oath at the Preliminary Hearing, the prosecutor objected and the trial judge sustained the objection.

In closing argument, the prosecutor argued that she had not explained why her watch was in plain view next to the rock of crack in the seatbelt crack right beside her. Not surprisingly, the jury convicted her of possessing the rock of crack and tampering with evidence (i.e., attempting to conceal it in the seatbelt crack).

Now, let’s analyze her statements. To determine if they were hearsay, we begin by asking if the defense would have offered them to prove the truth of the matters asserted in her statements.

Answer: No, because they would have been offered to show that in response to something she said, he pulled the seat forward to look for her watch and that is when he found it, handed it to her, and produced the crumb-like substance that by his own admission he “knew all along was going to be crack.”

Notice that phrased this way, it is clear that what she actually said was not important. The point is she said something and whatever it was, it prompted him to pull the seat forward and look under it where he found her watch and the crumb-like object. That is, they were not in plain view and we know that because he testified at the Preliminary Hearing under oath that that is how he found the watch and the rock.

Whenever the actual words in a statement do not matter, as is the case here, the statement necessarily is not being offered to prove the truth of the matter asserted in the statement. Make a note of this and remember it because it is very important.

Not only were her statements admissible, the deputy’s previous testimony under oath at the Preliminary Hearing was admissible to impeach his testimony about finding her watch and the rock together in plain view beside her.

The prosecutor’s incredibly sleazy closing argument commenting on her failure to explain why her watch and the rock were together in plain view, when he persuaded the trial judge to prohibit her from providing that explanation, was an atrocious improper comment on her court ordered silence.

Finally, the trial judge’s evidentiary rulings prevented her from putting on a defense in violation of her Fifth, Sixth, and 14th Amendment rights.

Namaste

Cross posted at my blog and the Smirking Chimp.

Author’s Note: Due to the length of this essay, I have decided to discuss the rest of the hearsay rule in Part 3 tomorrow.


What The Hell Is Hearsay?

October 23, 2011

I will start with an example.

A witnesses an accident and later tells B that Igor Ivarson ran a red light and hit Peter Piper in a crosswalk, killing him.

Flash forward to a trial. Igor Ivarson is charged with negligent homicide and the prosecutor calls B to the stand and asks him the following question after establishing that B had dinner with A several hours after the accident:

What, if anything, did A say to you about the accident?

If you are representing Igor and you do not stand up and say in a commanding voice, “Objection, your Honor. The question calls for hearsay”, a hole should open up in the floor beneath your chair disappearing you forever into the Great Beyond From Which There Is No Return. This is an exceedingly grim place not unlike Hell.

B’s answer would be hearsay because he would be repeating what A told him and his answer would be offered to prove that Igor ran the red light and hit Peter Piper in a crosswalk. That is one of the fundamental questions of fact that the prosecution must prove beyond a reasonable doubt in Igor’s trial.

Igor’s right to confront his accusers via cross examination would be violated if A’s statement comes in because Igor’s lawyer cannot cross examine A since A is not on the witness stand. Equally important, A was not under oath when A made the statement and the jury cannot evaluate A’s credibility, if A is not present, questioned, and cross examined.

For purposes of the following definition:

A is the declarant or person who made the statement.

B is the witness in court repeating the declarant’s statement.

(Keep in mind that a statement can be oral or written and also includes non-verbal conduct, if such conduct was intended as an assertion. An example of conduct intended as an assertion would be nodding your head to indicate agreement in response to a question, like “Do you want to eat pizza tonight?”)

Okay, here’s the definition:

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. See Federal Rule of Evidence (FRE) 801(c).

Since A did not make the statement while testifying at the trial or hearing, (he made it out of court before the trial), and A’s statement was offered to prove what the statement asserted, A’s statement is hearsay.

Simple, right?

Okay, what if A’s statement were offered for some other purpose? For example, let’s say it was offered to establish when A first knew about the accident. If that were the case, and that was a relevant issue, A’s statement would not be hearsay since it was offered for a purpose other than establishing the truth of the matter asserted in the statement.

This is a critical distinction that eludes oodles of judges and lawyers, not to mention law students. Don’t you make the same mistake.

By the way, sometimes judges will admit A’s statement, subject to a limiting oral instruction telling the jury that they may only consider A’s statement for the limited purpose of deciding when A first knew about the accident and for no other purpose.

Yah, sure. You betcha.

As if the members of the jury will ever remember that limiting instruction during their deliberations. Sheesh!

Now that you think you know what statements are hearsay, guess what?Some statements that fit the definition of hearsay are defined as not-hearsay.

Think of them as Jokers in a deck of cards.

What are these Jokers?

Hint: Not the football coach at the University of Kentucky.

FRE 801(d) identifies two types of non-hearsay statements:

(1) Prior statements by a witness, and

(2) Admissions by a party opponent.

A prior statement of a declarant who testifies at a trial or hearing is not hearsay if the witness is subject to cross examination about the prior statement and the statement is (A) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person.

An admission by a party opponent is a statement by a party to a lawsuit that is offered by the party’s opponent. Note that only the opponent can offer the seemingly hearsay statement; the party who made the statement cannot offer it. For example, if Igor Ivarson confessed that he ran a red light and hit Peter Piper in the crosswalk, his statement is admissible as an admission by a party opponent, even though it is offered to prove the truth of the matter asserted in the statement.

Can the defendant offer his own statement for another purpose, in other words, to prove something other than the truth of the matter asserted in the statement?

Yes, for example, to prove that the person to whom he made the statement acted in reliance on that statement, if that is an issue in the case. I will provide a detailed example of this situation in my next post as this is exactly what happened in Crane-Station’s case.

Suppose Igor Ivarson told the police that he was not driving the vehicle that struck Peter Piper. Would his exculpatory statement be admissible to prove that he was not driving the vehicle?

Not unless the prosecutor, who is the party opponent, offered it and no prosecutor is that stupid. At least they are not supposed to be.

There is only one exception to this rule and that is based on a defendant’s constitutional right to present a defense. If the statement is the only exculpatory evidence available, he cannot be prevented from offering his statement by this rule.

Finally, a statement by a coconspirator in furtherance of a conspiracy is admissible against the coconspirator and other members of the conspiracy.

NEXT: Exceptions to the hearsay rule.

Any questions?

Cross posted at my website and the Smirking Chimp.

And because Dakine always says he can, I will too:


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