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| Deborah J. Merritt
Moritz College of Law
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9/4/2010 | Email and the Attorney/Client Privilege | | | 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.
Read more: Summary with Link to Full Opinion |
8/7/2010 | Racial Bias Among Jurors Redux | | | 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. |
8/5/2010 | 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!
Read more: Judge Walker |
6/7/2010 | 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.
Read more: Amended Version of 804(b)(3) |
6/2/2010 | Facebook Evidence in Divorce (and Other) Cases | | | 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.
Read more: CNN on Facebook Evidence |
5/28/2010 | Instructions for High-Tech Jurors | | | 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.
Read more: Ohio General Admonition |
5/24/2010 | 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.
Read more: First Circuit |
5/7/2010 | Tracking Evidence | | | 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?
Read more: ABA Journal article |
3/24/2010 | Judicial Intuition, Judicial Notice, and Google | | | In a parole revocation hearing, District Judge Chin (SDNY) had to decide whether the defendant committed a bank robbery while on parole. Several pieces of evidence pointed towards the defendant's guilt. One of these, which Judge Chin deemed the "strongest piece of evidence," was that the robber wore a yellow rain hat (shown on the bank's surveillance tape) and the same type of hat was retrieved from a garage that the defendant used.
To underscore the importance of this evidence, Judge Chin noted that his chambers had conducted a google search on yellow hats and rain hats. This search revealed that there are lots of different types of rain hats, and even lots of different types of yellow hats. Finding two yellow rain hats (on the robber's head and in a garage used by the defendant) that matched so closely, made the defendant's guilt more probable.
The defendant appealed, challenging the judge's use of google. The Second Circuit affirmed, upholding the search at least in the context of a parole revocation hearing. The Rules of Evidence do not govern those hearings, although judges follow similar principles. At least under these "relaxed" conditions, the court concluded, the judge's google search simply confirmed an intuition that properly constituted judicial notice.
The Second Circuit, in other words, concluded that the fact that "there are many types of yellow rain hats" is a fact that is "generally known." Judge Chin didn't undermine the suitability of this fact for judicial notice by conducting a search that confirmed his intuition. Google makes it so easy for judges to confirm their intuitions, the court suggested, that judges are more likely to confirm their intuitions before taking judicial notice. Making that confirmation doesn't undermine the appropriateness of judicial notice.
The Second Circuit might not apply its ruling to trials; it stressed the fact that revocation hearings fall outside the formal rules. But the decision raises interesting questions for discussion: Does confirmation of an intuition raise problems that the Second Circuit overlooked? Won't a judge feel more confident in any "intuition" after checking in on google? If that's true, should the parties be allowed to present conflicting evidence or arguments? Or does a google check simply move the evidence into the second category of judicially noticeable facts, those that are "capable of accurate and ready determination"? In other words, does a search engine allow users to accurately determine things like the range of available items?
Read more: Read the Opinion |
3/1/2010 | Cert Grant on Confrontation Clause Issue | | | The U.S. Supreme Court granted certiorari today in a new Confrontation Clause case. That case, People v. Bryant (No. 09-150), may clarify the line between testimonial and nontestimonial statements offered by victims shortly after a crime has occurred. The victim in Bryant talked to police 10-25 minutes after he was shot in the abdomen; he was bleeding profusely and suffering significant pain while answering the officers' questions. An ambulance then took the victim to the hospital, where he died several hours later.
The victim's statement, in which he described the shooting and described his attacker, was essential to the prosecution's case. But the Michigan Supreme Court held that the Sixth Amendment barred use of that statement. People v. Bryant, 768 N.W.2d 65 (Mich. 2009). Noting that the victim had driven several blocks after the shooting, and that police interviewed him as much as 25 minutes after the crime, the court concluded that the statements were made to "prove past events potentially relevant to later criminal prosecution," rather than "to enable police assistance to meet an ongoing emergency." Id. at 69 (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
Michigan petitioned the U.S. Supreme Court to review the decision, arguing that other state courts have classified similar statements as nontestimonial. The Court granted certiorari, and the case will be heard next fall.
It is possible that the Court will use this case to explore the status of the dying declaration under the Sixth Amendment. Although the lower court opinion does not rest upon that ground, it is possible that Bryant could raise it in the Supreme Court. The Court, of course, may also use the case to clarify or revisit other aspects of its Confrontation Clause jurisprudence
Read more: Lower Court Opinion |
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