Evidence Update. ISBA Criminal Law Seminar. April 17, 2015

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1 Evidence Update ISBA Criminal Law Seminar April 17, 2015 Laurie Kratky Doré Ellis and Nelle Levitt Distinguished Professor of Law Drake University Law School

2 Overview Focus upon Iowa Supreme Court s evidentiary decisions within the past five years Confrontation Clause restrictions on admission of hearsay and pending U.S. Supreme Court case regarding child hearsay U.S. Supreme Court /Eighth Circuit decision regarding impeachment of jury verdict because of jury dishonesty during voir dire Amendments to Federal and Iowa Rules of Evidence

3 Relevance and Undue Prejudice Rule 5.401: Definition of relevant evidence. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 5.403: Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

4 Undue Prejudice: Administrative Findings State v. Huston, 825 N.W.2d 531 (Iowa 2013) DHS founded child abuse report In re Detention of Stenzel, 827 N.W.2d 690 (Iowa 2013) SVP determination

5 Undue Prejudice: Day In the Life Videos State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013)

6 Prior Bad Acts: Rule 5.404(b) Rule 5.404(b). Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

7 Prior Bad Acts: Rule 5.404(b) State v. Putman, 848 N.W.2d 1 (Iowa 2014) Whether and when possession of child pornography is admissible to prove motive or intent in a child sex abuse case.

8 State v. Putman, 848 N.W.2d 1 (Iowa 2014) Three Step Prior Bad Acts Analysis Non Character Purpose: Motive Non Character Purpose: Identity Balancing Probative Value versus Prejudice from Other Wrongs Evidence

9 Three Step Prior Bad Acts Analysis: Putman Court adds clear proof as separate and independent component of the analysis for admitting other act evidence for a non propensity purpose under rule 5.404(b). Now, admission of other crimes, wrongs, or acts requires a three step inquiry:

10 Three Step Prior Bad Acts Analysis: 1. Is the prior bad act evidence relevant to a legitimate, disputed non character purpose? 2. Is there clear proof that the party against whom the evidence is offered committed the other bad act or crime? 3. And, finally, does the danger of unfair prejudice from the bad act evidence substantially outweigh the probative value of that evidence? [Clear proof remains a balancing factor]

11 Non Character Purpose: MIAMI KOPP M I A M I K O P P Motive Intent Accident (or Absence of) Mistake (or Absence of) Identity Knowledge Opportunity Plan/Common Scheme Preparation

12 Non Character Purpose: Motive Motive: the impetus that supplies the reason for a person to commit a criminal act. Held: Putman s motive in sexually abusing the toddler was not in dispute because Putman s state of mind was not an element of the crime nor otherwise in issue. Question: Isn t motive in issue in any case in which a person claims that he or she did not commit the alleged offense?

13 Non Character Purpose: Identity Held: (4 3) that trial court properly admitted evidence of the titles of the two pornographic videos for the disputed purpose of identifying Putman, rather than girl s father, as perpetrator of sexual abuse. Although possession of child pornography is arguably dissimilar to the charged act of child molestation, court must look at the similarities between the contents of the materials possessed by the defendant and acts committed by the defendant. While a general preoccupation with child pornography, may well be inadmissible, video titles admitted against Putman bore a striking similarity to the specific crime for which he was on trial. Question: Does striking similarity requirement unnecessarily limit the use of other wrongs to prove identity?

14 State v. Putman: Clear Proof State must provide clear proof that prior bad act occurred and that defendant committed it. Clear proof does not require corroboration or proof beyond a reasonable doubt. [P]roof of prior bad acts is clear if it prevents the jury from speculating or inferring from mere suspicion. Questions: Is clear proof higher or lower standard than federal preponderance standard? Is clear proof a preliminary question of fact or question of conditional relevance?

15 403 Balancing of Probative Value of Other Wrongs against Prejudice In weighing probative value of other acts evidence against the danger of unfair prejudice, court should consider: the need for the evidence in light of the issues and the other evidence available to the prosecution, whether there is clear proof the defendant committed the prior bad acts, the strength or weakness of the evidence on the relevant issues, and the degree to which the fact finder will be prompted to decide the case on an improper basis. Putman, 848 N.W.2d. at 9 10 (emphasis added).

16 Avoiding Rule 5.404(b): The Inextricably Intertwined Doctrine Extrinsic v. Intrinsic Evidence and the Inextricably Intertwined Doctrine inseparable crime complete the story or provide context for the charged crime res gestae

17 Criticisms of the Inextricably Intertwined Doctrine State v. Nelson, 791 N.W.2d 414, (Iowa 2010) [W]e will only allow such evidence to complete the story of what happened when the other crimes, wrongs, or acts evidence is so closely related in time and place and so intimately connected to the crime charged that it forms a continuous transaction.... when a court cannot sever this evidence from the narrative of the charged crime without leaving the narrative unintelligible, incomprehensible, confusing, or misleading.... the inextricably intertwined doctrine is... a narrow and limited exception to rule 5.404(b).

18 Other Acts of Sex Abuse Iowa Code In a criminal prosecution in which a defendant has been charged with sexual abuse, evidence of the defendant s commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant.... Constitutional? State v. Reyes, 744 N.W.2d 95 (Iowa 2008) v. State v. Cox, 781 N.W.2d 757 (Iowa 2010)

19 Physician Patient Privilege and Disclosure of Mental Health Records in Criminal Cases State v. Cashen, 789 N.W.2d 400 (Iowa 2010) Statutory Protocol: Iowa Code (4) (effective 2011)

20 Iowa Code (4) (effective 2011) a. Except as otherwise provided in this subsection, the confidentiality privilege under this section shall be absolute with regard to a criminal action and this section shall not be construed to authorize or require the disclosure of any privileged records to a defendant in a criminal action unless... : (2) (a) The defendant seeking access to privileged records under this section files a motion demonstrating in good faith a reasonable probability that the information sought is likely to contain exculpatory information that is not available from any other source and for which there is a compelling need for the defendant to present a defense in the case.....

21 Physician Patient Privilege and Disclosure of Mental Health Records in Criminal Cases State v. Thompson, 836 N.W.2d 470 (Iowa 2013) State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013) State v. Edouard, 854 N.W.2d 421 (Iowa 2014)

22 Impeachment: Prior Inconsistent Statements Not allowed if sole purpose of calling witness is to impeach witness with otherwise inadmissible inconsistent statement. However, this principle does not apply if prior inconsistent statement is otherwise admissible (either under rule 5.801(d)(1)(a) or under hearsay exception). State v. Tompkins, 859 N.W.2d 631 (2015).

23 Rehabilitation of Witness with Prior Consistent Statement: Rule 5.801(d) Statements which are not hearsay... 1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is... (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....

24 2014 Amendment to Federal Prior Consistent Statement Rule Fed. R. Evid. 801(d) Statements That Are Not Hearsay... 1) A Declarant Witness s Prior Statement. (B) is consistent with the declarant s testimony and is offered: (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive...; or (ii) to rehabilitate the declarant s credibility as a witness when attacked on another ground;...

25 Impeachment with Prior Convictions Rule Rules differ depending on type and age of conviction and on the type of witness (accused v. non accused) being impeached: Felony convictions Crimes involving dishonesty or false statement Convictions more than ten years old

26 Impeachment with Prior Felony Convictions Rule Rule Impeachment by evidence of conviction of crime. a. General rule. For the purpose of attacking the credibility of a witness: 1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and

27 Impeachment with Felony Conviction: State v. Redmond, 803 N.W.2d 112 (Iowa 2011) Replaces State v. Martin with comprehensive framework

28 Impeachment with Felony Conviction: Witnesses Other Than Accused: Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted,.... [Rule 5.609(a)(1)] Rule of Admission Rule Test

29 Impeachment with Felony Conviction: Accused as Witness: evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused... [Rule 5.609(a)(1)] Rule of Exclusion Prosecution bears burden Probative value outweighs Prejudicial Effect to Accused

30 Redmond Balancing: Probative Value Nature of Conviction and Its Underlying Conduct Need for Prior Conviction Evidence Age of the Conviction and Defendant s Subsequent History

31 Redmond Balancing: Prejudicial Effect Nature of Prior Conviction Similarity of Prior and Charged Offenses Number of Prior Convictions Centrality of Credibility Issue and Need for Defendant s Testimony

32 Redmond Balancing: Probative Value and Prejudicial Effect Need to Hold Prosecutor to Burden Explicit On the Record Findings Recommended

33 Crimes of Dishonesty or False Statement State v. Harrington, 800 N.W.2d 46 (Iowa 2011) Rule 5.609(a)(2): Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. Overrules State v. Axiotis (Iowa 1997) Crimes of Theft? Federal Advisory Committee Note: crimes such as perjury or subornation of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, the commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused s propensity to testify truthfully.

34 Impeachment with Conviction of Crime of Dishonesty or False Statement Over Ten Years Old: Rule State v. Dudley, 856 N.W.2d. 668 (Iowa 2014). Defendant attempted to impeach government witness with 20 year old conviction for theft. Court states, without discussing, that theft is a crime of dishonesty that would otherwise be admissible. Convictions older than 10 years old, however, are not admissible unless probative value substantially outweighs prejudice. Court remands for necessary balancing.

35 Error Preservation Prior Conviction Impeachment Criminal defendant must testify in order to preserve error State v. Derby, 800 N.W.2d 52 (Iowa 2011) Can preserve error on in limine ruling by disclosing prior conviction on direct examination State v. Harrington, 800 N.W.2d 46 (Iowa 2011)

36 Expert Testimony Rule 5.702: Testimony by experts. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

37 Expert Testimony That Improperly Defines Crime State v. Edouard, 854 N.W.2d 421 (Iowa 2014) Trial court did not abuse its discretion in prohibiting defendant s forensic psychiatrist from testifying that Edouard merely provided pastoral care, not pastoral counseling, to the women congregants whom he was accused of sexually exploiting. An expert may not provide the defendant s own definition of the crime, and then... explain the defendant had not committed it.

38 Expert Testimony That Improperly Bolsters Witness Credibility State v. Dudley, 856 N.W. 668 (Iowa 2014) State v. Brown, 856 N.W.2d 685 (Iowa 2014) State v. Jaquez, 856 N.W.2d 663 (Iowa 2014) Court clarified the very thin line between permissible expert testimony regarding the general symptoms or behaviors exhibited by victims of sexual abuse and impermissible expert testimony that a particular victim manifests symptoms of sexual abuse or exhibits behaviors consistent with sexual abuse trauma. Consistent with expert testimony improperly bolsters the credibility of the victim and comments on the guilt or innocence of the defendant.

39 Improper Bolstering regarding Witness Credibility Rebuttal Use of Expert Testimony? Open question whether consistent with expert testimony is admissible to rebut contention that victim s behavior was inconsistent with that of an abused child or sex abuse victim (Waterman, J., concurring).

40 Expert Testimony: Reasonable Reliance Rule 5.703: Bases of opinion testimony by experts. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the trial or hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. In re Detention of Stenzel, 827 N.W.2d 690 (Iowa 2013) State v. Neiderbach, 837 N.W.2d 180 (Iowa 2013)

41 Hearsay: Non Hearsay and Responsive Conduct Rule 5.801(c): Hearsay. 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. State v. Elliott, 806 N.W.2d 660 (Iowa 2011): Error to allow police detective to relate substance of what 7 year old told him during interviews concerning what had happened the night infant suffered fatal injuries in order to explain why the detective shifted focus of investigation to defendant, rather than baby s mother.

42 Hearsay: Excited Utterances Rule 5.803(2): Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

43 Hearsay: Excited Utterances State v. Dudley, 856 N.W. 668 (Iowa 2014) Holding: abuse of discretion to admit as excited utterance child s description of sexual abuse that child gave to a neighbor 36 hours after the abuse in response to the neighbor s repetitive and prompting questions. Factors Time lapse between event and statement Extent to which questioning elicited the statement that would not have been otherwise volunteered Age and condition of declarant Subject matter of statement

44 Hearsay: Statements for Medical Diagnosis or Treatment Rule 5.803(4): Statements for purposes of medical diagnosis or treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

45 Hearsay: Statements for Medical Diagnosis or Treatment Two Part Test: 1. Declarant s motive in making statement is consistent with purpose of promoting treatment 2. Content of statement of type reasonably relied upon by physician in treatment or diagnosis State v. Dudley, 856 N.W. 668 (Iowa 2014): child s statements regarding abuse made to a trained professional for the purposes of diagnosis or treatment, may be admissible under rule 5.803(4).

46 Statement Against Penal Interest Rule 5.804(b)(3) Rule 5.804(b)(3): Statement against interest. A statement which was at the time of its making so far contrary to the declarant s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. State v. Paredes, 775 N.W.2d 554 (Iowa 2009)

47 Statement Against Penal Interest Rule 5.804(b)(3) 2010 Amendment to Fed. R. Evid. 804(b)(3): (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

48 The Confrontation Clause and Hearsay Recent Iowa Cases State v. Tompkins, 859 N.W.2d 631(Iowa 2015) Holding: Domestic abuse victim subject to cross examination even though State called victim only to establish domestic relationship with defendant; defendant could have crossexamined victim regarding assault or called victim as defense witness

49 State v. Kennedy, 846 N.W.2d 517 (Iowa 2014). Court addressed whether the admission of a certified abstract of the defendant s driving records and an affidavit of mailing of suspension notices in a prosecution for driving while revoked violated the Confrontation Clauses of the United States and Iowa Constitutions. Held: Certified abstract of driving record is NOT testimonial (affirming State v. Shipley, 757 N.W.2d 228 (Iowa 2008)). Affidavit of mailing of suspension notices IS testimonial (but harmless error). Question: Whether different result if affidavit of mailing was created contemporaneously with mailing of notices and then maintained in official driving records?

50 The Confrontation Clause and Hearsay Pending U.S. Supreme Court Case: Child Hearsay Ohio v. Clark (Argued March 2, 2015) Issue: (1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's outof court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as testimonial statements subject to the Confrontation Clause. State v. Clark, 137 Ohio St.3d 346, 999 N.E.2d 592 (Ohio 2013), cert. granted, Ohio v. Clark, 135 S.Ct. 43 (U.S. No. 1352)

51 Impeaching Jury Verdict with Evidence of Juror Dishonesty During Voir Dire Warger v. Shauers, 135 S.Ct. 521 (2014), affirming 721 F.3d 606, (8th Cir. 2013).

52 Fed. R. Evid. 606 Juror s Competency as a Witness.... (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury s deliberations; the effect of anything on that juror s or another juror s vote; or any juror s mental processes concerning the verdict or indictment. The court may not receive a juror s affidavit or evidence of a juror s statement on these matters. (2) Exceptions. A juror may testify about whether: (A) extraneous prejudicial information was improperly brought to the jury s attention; (B) an outside influence was improperly brought to bear on any juror; or (C) a mistake was made in entering the verdict on the verdict form.

53 External v. Internal Influence Generally speaking, information is deemed extraneous if it derives from a source external to the jury. External matters include publicity and information related specifically to the case the jurors are meant to decide, while internal matters include the general body of experiences that jurors are understood to bring with them to the jury room. Warger, 135 S.Ct. at 529 (citations omitted).

54 There may be cases of juror bias so extreme that, almost by definition, the jury trial right has been abridged. If and when such a case arises, the Court can consider whether the usual safeguards are or are not sufficient to protect the integrity of the process. We need not consider the question, however, for those facts are not presented here. Id. at 529 n.3. Open Question

55 2014 Amendments: Amendments to Federal Rules of Evidence Prior Consistent Statements: Fed. R. Evid. 801(d)(1)(B) Business Records: Fed. R. Evid. 803(6) Absence of a Record of a Regularly Conducted Activity: Fed. R. Evid. 803(7) Public Records: Fed. R. Evid. 803(8)

56 Amendments to Federal Rules of Evidence 2013 Amendments: Absence of Public Record (CNRs): Fed. R. Evid. 803(10) 2010 Amendments: Statements Against Interest: Fed. R. Evid. 804(b)(3)

57 Conclusion and Shameless Plug Laurie Kratky Doré 7 IOWA PRACTICE EVIDENCE (West )