Rule Change Eliminates Tome in Federal Cases

There is a significant amendment to the rule on prior consistent statements 801(d)(1)(B).  Up until now, prior consistent statements were non-hearsay only when elicited to rebut a charge of recent fabrication.  The amendment does away with that restriction.  Beginning on December 1, prior consistent statements will be admissible as substantive evidence to rehabilitate the witness after any kind of attack on credibility – memory, perception, etc.  Watch out for more Government sandbagging! While the Committee Comments claim that the rule retains Tome’s restriction (e.g. that the prior consistent-statement has to be pre-motive for fabrication), the proposed amendment makes the concept so difficult to define that Tome lives on in name only. At least that is my prediction, stay tuned.

For a nice history of this amendment, checkout this summary on the Federal Evidence Review
blog.

Michigan Court of Appeals Finds Ineffective Asisstance of Counsel In CSC CAse

Imagine facing criminal sexual conduct charges and then having the trial court fail to demand new jury deliberations when an alternate juror takes the place of a holdout, deadlocking juror who, by the way, waited to the last minute to tell others he once was the alleged perpetrator in a sexual misconduct investigation. Atta boy to attorney Mitch Foster, who, while representing David Paul Morikawa, legally persuaded a conservative Michigan Court of Appeals panel to reverse and remand the defendant-appellant’s jury conviction of two second—degree CSC counts. Mr. Morikawa will get a new trial thanks to this exceedingly rare finding of ineffective trial counsel assistance.
In an unpublished Aug. 27, 2013, opinion, the conservative court led by presiding Judge Michael Talbot, branded the original Iron Circuit Court's failure to demand new deliberations as “plain error.” The appellate court, in its non-binding opinion, cites MCR 6.411: “[i]f an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.” Errors in jury instructions, the appellate court emphasizes, are of a constitutional magnitude. People v. Tate, 244 Mich App 553, 567; 624 NW2d 524 (2001). There actually were two deadlocked jurors in this case. Juror K was the one who, upon questioning, revealed that he was at a Christmas party several years before when he touched a young girl during a group picture. He further revealed that he was cleared of any wrongdoing and said he did not mention the incident during voir dire for two reasons: He didn’t think the past would affect his judgment and he did not want to bring attention to himself. The court removed him from the case after further learning that “he had received a lot of peer pressure in the jury room.” Once an alternate was chosen, the court ordered the jury resume deliberations instead of starting anew, and the defense counsel politely declined the judge’s invitation for comments. “Given the existence of the original two ‘holdouts,’ this was obviously a close case,” the court wrote in its opinion, “and, when viewed in light of the error discussed infra, we find that it could indeed have had an effect in the outcome of the trial if the jury had begun deliberations anew with a new member and the fresh perspective that member would bring.”
The infra error was when the court gave sway to the prosecution in its line of questioning. The appellate court cited MRE 404(a), which says the only way prosecutors can introduce evidence of a non-testifying defendant’s character is if the defendant “first opens the door” by offering evidence of that character trait. The prosecutor was questioning a female witness about Mr. Morikawa and how she came to know him. After some routine questions, the prosecutor then asked the following: “And based upon your familiarity with him and with other troopers can you come to a conclusion or an opinion as to his credibility and veracity being truthfulness? Do you have an opinion?”
A: Yes, I do.
Q: What is it?
A: He is not credible.
The prosecutor had the witness clarify that she meant “truthful” when she said “credible.” There was no objection from defense counsel.
People v Morikawa, Court of Appeals No. 308016.

Michigan Supreme Court Hears Important Child Sexual Abuse Hearsay Issue

The Michigan Supreme Court has agreed to hear the Bay County Prosecutor’s appeal in People v. Burns, Supreme Court No. 145604 Bay County is attempting to bring in child hearsay statements to the forensic examiner claiming that the Defendant’s request for the complainant not to tell anyone about the offense constitutes “wrongful conduct” rendering the witness unavailable. Read More...

Are Prosecutor's Shooting Themselves in the Foot by Pushing 'Change of Appearance' Doctrine.

Prosecutors are pushing for a doctrine of law which is going to help the defense more than it is going to help the prosecution. The doctrine is called the “change in appearance” doctrine. If a criminal defendant comes to court in a suit with a fresh haircut, the prosecutors want to argue that this shows guilty knowledge if the Defendant normally doesn’t wear a suit and normally has a working class appearance. The doctrine originally was applied where the Defendant made severe changes in their appearance, now the standard clean up that someone does for a job interview is now sinister. In Harris v State, DC Circuit No. 08-CF-1405 (2012), the Defendant simply dressed up and wore glasses (which normally didn’t wear) to Court. The Prosecutor didn’t simply argue that the Defendant was trying to avoid identification. The Defendant was a regular customer of the robbed restaurant and they knew him on sight. The prosecutor argued that the Defendant softened his appearance to make him look less threatening to the jury.

The sad thing is that they are so focused on winning individual cases that they have stopped thinking like institutional litigators. Everyone cleans themselves up for trial. People who never wear suits wear a suit to court. Woman wear more conservative makeup and jewelry to court. Everyone wants to put their best foot forward. Prosecutors have recently sought the right to argue this change of appearance to the jury. When the Defendant gets a haircut, upgrades his glasses, etc. prosecutors have been making the argument that they should be able to tell the jury that this isn't what the Defendant looks like. They've been winning with this argument. My question is how will they stop up from making the same argument when they do that with their complainants. I've regularly seen complainants (child and adult) dress provocatively in the real world and show up in court looking like they were regulars on the church choir. I can't wait to use the prosecutor's new doctrine against them. It should be interesting.

Sixth Circuit Reverses Felon in Possession Case Based on a Corpus Delecti Violation

In United States v Adams, Sixth Circuit No. 08-5372, the Sixth Circuit reversed the Defendant’s conviction based on a corpus delecti rule. The corpus delecti rule prohibits a jury from convicting a criminal defendant on his/her confession alone. The district court erred by failing to instruct the jury that defendant’s confession must be corroborated by independent evidence. Rejecting the proposed instruction was error even though there was some evidence that tended to corroborate defendant’s confession (the gun was found in a jacket near defendant) because the jury was not ever advised that corroboration was necessary. The error was not harmless because the jury may have improperly convicted defendant on the basis of the uncorroborated statement alone.

Michigan Supreme Court Reaffirms Carry-Over Corollary to Declaration Against Penal Interests.

Michigan Supreme Court Decides Not to Hear the Lincoln Watkins

Second Circuit Limits Police Officer Expert Testimony