In response to the petition, an investigator tracked down the jurors to ask them what they recalled about November 29, 1995. The interviews took place between 2001 and 2006. (Evidently, the investigation was not exactly a high priority.) The results, as the Seventh Circuit put it with considerable understatement in an opinion last week, were a “mixed bag”:

The first question was: “The court records show that on one day one of the jurors did not appear. Do you recall any such time when that might have occurred?” Seven jurors said they did not recall a juror being absent; four jurors said they did. Of the four who did remember a juror’s absence, three recalled that an alternate juror replaced the absent juror, a claim wholly unsubstantiated by court records. One of the four thought the juror was absent on the day before Thanksgiving; another claimed the juror was absent on the first two days of deliberations. Two correctly recalled that the absent juror was male; one said the absent juror was female. The second question was: “Do you recall being sent home early because of this juror’s absence?” The jurors answered either “no” or that they did not recall.

Ultimately, the district judge decided that there was insufficient evidence that the jury had deliberated on November 29 and denied Webster’s petition. The Seventh Circuit affirmed last week, holding that the district judge’s fact-finding was not clearly erroneous. Webster v. United States (No. 09-2308).

What I find interesting about the case (apart from the absurdity of asking people about the details of their decade-old jury service and the predictably off-base answers) is the district judge’s admission into evidence of the jurors’ recollections of what happened during their deliberations. This seems to conflict with the basic thrust of Rule 606(b) of the Federal Rules of Evidence, which prohibits jurors from testifying about “any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.”

As the Seventh Circuit observed, “Rule 606(b) codifies the common-law prohibition against using juror testimony to impeach a verdict, which exists to promote the finality of verdicts, protect jurors from harassment, and encourage full and frank discussion in the jury room.” These concerns have always struck me as a little exaggerated, particularly when measured against the need to ensure reliability in judgments in cases involving long prison terms, like Webster’s. However, the facts in Webster point to an additional concern: jurors’ memories are themselves apt to be pretty unreliable, particularly after the passage of a few years and perhaps all the more so when the topic of questioning is an event that, while legally significant, might pass with little notice from laypeople. (Assume, for instance, that Webster’s theory were true: a bailiff instructed the eleven jurors to go ahead and deliberate despite the absence of the twelfth. I suspect that most laypeople in these circumstances would trust the bailiff as a figure of authority and follow his directions without much question or concern.)

Although the Seventh Circuit could have affirmed in Webster without addressing the Rule 606(b) question, the court went out of its way to indicate that the district judge erred in admitting the jurors’ recollections about deliberations on November 29. There seems not to be much precedent on the application of the Rule in these sorts of circumstances, but the Seventh Circuit did cite one prior district court decision holding that Rule 606(b) prohibits testimony about deliberations during one juror’s temporary absence.

Is this the right answer? The Seventh Circuit characterized the jurors’ testimony as being about “matter[s] . . . occurring during the course of the jury’s deliberations,” which would bring the testimony within the literal terms of the Rule. It’s not clear to me, though, that the fact of deliberation constitutes a “matter . . . occuring during the course of the jury’s deliberations.” I think one could plausibly interpret the Rule to protect the content of deliberations, but not the fact that the jury did or did not deliberate on a particular day.

Then, too, there are the exceptions to the Rule 606(b) prohibition. Jurors may testify about: “(1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.” Although the possibility seems not to have been raised or considered in Webster, I think there may be an argument that the alleged rogue bailiff counts as an “outside influence . . . improperly brought to bear upon any juror.”

None of this really matters to Webster because the juror testimony in his case was so unreliable and inconclusive. But courts and counsel in future cases in which the juror testimony is stronger might do well to note that the Seventh Circuit’s treatment of the Rule 606(b) issue in Webster was mere dicta.

Cross posted at Prawfs and Life Sentences.

In its June 23, 2011 decision in Bullcoming v. New Mexico http://www.supremecourt.gov/opinions/10pdf/09-10876.pdf the Supreme Court once again addressed the admissibility against the accused of lab reports prepared by analysts who do not testify at trial. The report was offered through a “surrogate witness.” Bullcoming was charged with drunken driving. A blood test pegged his BAC at 0.21, “an inordinately high level,” as the Court helpfully observed. At trial, however, the State did not call as a witness “Caylor,” the lab analyst who measured the BAC. Caylor, it seems, was enjoying an “unpaid leave for a reason not revealed” – always an intriguing “uh oh” when assessing credibility. Instead, the State called another lab “scientist” who had not observed Caylor’s testing of Bullcoming’s sample but who could talk about lab procedures and the reliability of the report in general. The Court tells us that a “startled defense counsel” objected. (N.B. How the Court knew she was “startled” is unclear, but it is abundantly clear that the confrontation right requires only a timely objection by counsel, startled or unstartled.)

In an important gloss on its 2009 decision in Melendez-Diaz v. Massachusetts, http://www.supremecourt.gov/opinions/08pdf/07-591.pdf the Court held that this process violated Bullcoming’s right of confrontation. The lab report was testimonial hearsay because it was specifically prepared for use at trial. Under the Crawford rule, as construed in Melendez-Diaz, the State had to produce Caylor (who performed the test) as a witness, or show he was “unavailable” to testify (paid or unpaid) and that Bullcoming had a prior opportunity to cross-examine him at an earlier proceeding. The State failed on both counts. The reliability of the report or the likely futility of cross-examining an analyst who likely had no recollection of this test among the hundreds of those routinely performed mattered not all. (The dissent laments Crawford’s “wooden formalism” and its unnecessary “disruption” of the trial system.)  

Earlier this year Michigan v. Bryant http://www.supremecourt.gov/opinions/10pdf/09-150.pdf triggered handwringing that the Court was retreating from its “pathmarking” – an intriguing word choice – 2004 opinion in Crawford. Bullcoming should allay such anxiety somewhat, especially since our newest Justices, Sotomayor and Kagan, jumped aboard Justice Ginsburg’s majority opinion (at least most of it).

First, the Court clarified that testimonial hearsay clearly included documents such as these “created solely for an ‘evidentiary purpose.’ . . . made in aid of a police investigation[.]” The absence of “notarization,” which characterized the sworn lab reports in Melendez-Diaz, did not place these documents outside the scope of the confrontation right. Yet while Bullcoming highlights some additional features of testimonial hearsay, the opinion does not put this crucial issue to rest. In her concurring opinion, Justice Sotomayor pointed to the problem of hearsay created for multiple purposes (e.g., a 911 call to secure help and to alert the police), stressing that under Bryant testimonial hearsay’s “primary purpose” must be its use at trial.

Second, cross-examination of the surrogate witness – Caylor’s substitute – was plainly inadequate. The surrogate could not talk about what Caylor knew or observed during the testing process. Nor had the surrogate retested Bullcoming’s blood sample, in which case he could have offered his own opinion irrespective of Caylor’s. In dicta the Court adverted to a troubling limitation of the Crawford rule: so long as the declarant testifies as a witness, the quality of his or her testimony seems to be of no constitutional moment. Thus a forgetful witness who asserts, sincerely or deceitfully, to have no recollection of underlying events satisfies the confrontation right, thereby permitting the State to introduce her hearsay statements for their truth under any one of more than three-dozen hearsay exceptions.

Finally, the Court may be hedging somewhat on the notice-and-demand statutes that it had extolled in Melendez-Diaz. Such statutes permits prosecutors to provide pre-trial notice of an intent to rely on lab reports, for example, thereby compelling the defense to “demand” that the analyst testify at trial or waive the right. Justices Thomas, Sotomayor, and Kagan refused to joint Part IV of the Bullcoming opinion, which addresses retesting as well as notice-and-demand statutes.  (This left just three justices in support of Part IV.)

Crawford may have been a “pathmarking” opinion, but so far the Court has been an unreliable pathfinder. Those of us still wandering in the woods could use more assistance in finding the correct path among the cryptic trail markings and side routes.

Right now, however, we are in a state of nature, legally speaking. Case law under the relevancy test, the current standard, is of little avail. And while the new rules are copied from the federal rules, state courts are not bound by federal precedent (yes, that includes Daubert itself!). Last week alone I spoke at two conferences, one a large, attentive gathering of state judges in Elkhart Lake and the other an even larger, equally engaged joint convocation of state prosecutors, public defenders, and private defense counsel here at Eckstein Hall. There is a clamor for answers and a discernable unease about what to do.

In both settings I greatly benefited from my participation on a panel just a week earlier on April 7, 2011 at the annual meeting of the Eastern District of Wisconsin Bar Association in Milwaukee. The panel was entitled “Daubert Today: A Standard for All Wisconsin Courts.”  Organized by Matthew W. O’Neill (of Friebert Finerty & St. John) and moderated by Dean Joseph D. Kearney of Marquette Law School, the panel also consisted of two seasoned federal civil litigators and two federal judges (and me). Let me briefly summarize some of their more salient points.

Ralph A. Weber, a Marquette adjunct professor and partner in Gass Weber Mullins LLC, sees the new rules as a substantial improvement over the “trial-friendly” rules that preceded them precisely because they empower trial judges to exclude unreliable expert testimony. Ralph hopes that trial lawyers and trial judges take the new rules seriously, suggesting that evidentiary hearings and even expert witnesses on reliable methodologies may be in order. One problem, though, is that the state legislature did not mandate that expert witnesses submit reports that conform with Fed. R. Civ. Pro. 26, which is designed to foster Daubert scrutiny.

My Marquette colleague Rick Esenberg (formerly of Foley & Lardner), also an experienced civil litigator, thoughtfully underscored the contingency of the new rules.  Rick noted that their effect on litigation is dependent (“it depends”) on a variety of factors, including especially Wisconsin’s “trial friendly” legal culture. Old habits are hard to break. Moreover, state judges simply do not have the resources available to federal courts when closely scrutinizing expert opinion testimony. Rick also brought up the proscription against ipse dixit (“because he said so”) testimony, the bane of the Seventh Circuit, whereby parties offer well-credentialed witnesses who rely more on inflated (my word) resumes than tested methodologies or proven protocols.

We then turned from the panel’s lawyers to the judges. Judge Rudolph T. Randa, a federal district judge with substantial state judicial experience as well, also addressed the ipse dixit problem, noting the Seventh Circuit’s close scrutiny of such testimony and that some lawyers blur relevancy concerns (the “4s” in the FREs) with the assistance standard (the “7s”). Acknowledging that much of Daubert lore is caught up in how to establish reliable methods, etc., Judge Randa emphasized the equally significant problems that arise when expert witnesses are ignorant of the underlying facts of the case.

Finally, federal magistrate judge William E. Callahan, Jr., spoke of the numerous Daubert challenges he has confronted over the years. Judge Callahan emphasized that nothing in the Daubert case law, or the rules themselves, require an evidentiary hearing. Nonetheless, they are difficult motions that require study by the judge, so counsel should consider pretrial motions, which may be based on “paper” (e.g., dueling affidavits, depositions, expert reports). Judge Callahan forecasts that Wisconsin trial judges will conduct more pretrial hearings on experts than they did under prior practice, especially in connection with summary judgment motions and in the absence of a Rule 26-type reporting requirement.  Finally, he cautioned against the overuse of expert witnesses, reminding those in attendance that not all such witnesses provide meaningful assistance to the court.

Of the three metaphors I used in the preceding paragraph, a “train wreck” is the most apt way to describe Michigan v. Bryant, the Supreme Court’s latest attempt to illuminate the interrelationship between the hearsay rules of evidence and the Sixth Amendment’s confrontation right. “Swamp” and “kaleidoscope” are apt, but “train wreck” best captures the real cost of confusion. Bryant not only failed to illuminate a much-rumored “dying declaration” exception to the confrontation right, it also raises considerable confusion about what constitutes the “testimonial hearsay” that is protected by the confrontation right in the first place. For the defense lawyers and prosecutors who must eat this mush (fourth metaphor) every day, you have my best wishes and these words of solace.

A jury convicted Bryant of murdering Covington. Police testified that they received a dispatch that a man had been shot. They found Covington bleeding from a fatal stomach wound at a gas station. When officers insightfully asked “What happened?”, Covington replied that Bryant had shot him through the door of a house some blocks away from the gas station. He repeatedly identified Bryant as the shooter before medical help arrived; Covington died a short time later at a hospital. The key issue at trial was the identity of the shooter. The trial judge admitted Covington’s statements to police implicating Bryant as the shooter behind the door.

What’s confusing you ask? Well, Bryant’s trial occurred under the aegis of Ohio v. Roberts, a 1980 case which held that only “reliable” hearsay could be used against an accused at trial. Under Roberts, Bryant’s conviction comported with his Sixth Amendment right to confront his accusers. In 2004 the Supreme Court overruled Roberts and most (not all) of its progeny  because Roberts rested on an erroneous, or so we’re told, understanding of the confrontation right. That 2004 case, Crawford v. Washington, held that the confrontation right applied only to “testimonial” hearsay, a term it declined to define. Testimonial hearsay could be used against the accused only if he had a prior opportunity to cross-examine the hearsay declarant and that declarant was unavailable to testify. Nontestimonial hearsay is largely left to the rules of evidence.

Bryant appealed his conviction on grounds that Covington’s hearsay statements to police violated the Crawford rule. Since it was undisputed the Bryant had never cross-examined Covington before his death (duh), Michigan’s supreme court reversed the murder conviction because it found the hearsay “testimonial.” The Supreme Court granted certiorari.

To many observers, Bryant promised to illuminate a possible dying declaration exception to the Crawford rule that had cropped up in earlier dicta, much as the Court had fleshed out an exception for “forfeiture by wrongdoing” several years ago in Giles v. California, 554 U.S. 353 (2008). Instead, the Court sidestepped the dying declaration exception on grounds that Michigan had abandoned it, ruling instead that Covington’s dying responses to police questioning about his killer’s identity were not “testimonial” in the first place. In sum, the Michigan court erred because Bryant’s confrontation right did not attach to Covington’s hearsay.

The rambling majority opinion by Justice Sotomayor heroically attempts to guide us to an understanding of what constitutes testimonial hearsay, at least in the context of “a nondomestic dispute, involving a victim found in a public location, suffering from a fatal gunshot wound, and a perpretrator whose location was unknown at the time the police located the victim.” Whew. Space limits preclude any full elaboration, yet three points stand out. First, testimonial hearsay’s essence turns on whether the declarant’s “primary purpose” was to provide “evidence” (my word) for a criminal investigation or prosecution. Second, the primary purpose is determined objectively; the declarant’s subjective (“actual”) motives are not controlling. Third, this objective approach is based on the totality of the circumstances, which means that we must look at literally everything. And the combination of these three elements – “primary purpose,” objective assessment, totality of the circumstances – spells only one thing: the standard for testimonial hearsay is manifestly uncertain, offering little, if any, predictive value.

If Crawford offered hope for criminal defendants that there was some rigor in the confrontation right, Bryant invites prosecutors to litigate the threshold issue of whether the hearsay is testimonial in a breathtakingly wide array of cases. In other settings the Court has decried “litigation lotteries” advocated by the defense (e.g., the “no knock” cases), but Bryant provides little incentive for prosecutors not to litigate this issue.

In separate dissents, Justices Scalia and Ginsburg both conclude that Covington’s statements were clearly testimonial hearsay and that Bryant effectively creates a gaping, unworkable exception for “violent crimes.” I agree. Who knows where the next iteration of confrontation case law will take us. This week the Supreme Court is hearing yet another case involving a crime lab report’s admissibility under the confrontation right, fittingly entitled Bullcoming v. New Mexico (argued March 2, 2011).  Tellingly perhaps, the Bryant majority left the backdoor wide open for a retreat when it observed that the Bryant record, which predated Crawford, “was not developed to ascertain the ‘primary purpose of the interrogation.’” Stay tuned, there’s always (more) “Bullcoming.”

True in what sense you ask?  Well, it’s unclear, although I concede it has a nice Old Testament ring to it and the idea that courts should use “true” evidence is appealing in all senses of that word.  While you’re pondering what “true” might mean (and I still am), let me offer some background.

Predictably, the tort reform package embraces the approach found in the current Federal Rules of Evidence on expert testimony, the so-called Daubert rule, which emerged from the Supreme Court’s 1994 decision in Daubert v. Merrell Dow Pharmaceutics.  Daubert promoted federal judges to the rank of “gatekeeper” and charged them with divining the divide that separates reliable from unreliable expert testimony.  After all, who is better qualified for such a task than a liberal arts major with a law degree?  In 2000 the Court amended Federal Rule of Evidence 702 to reflect Daubert and its progeny: expert opinion testimony must be predicated upon reliable principles and methods that are reliably applied to sufficient facts and data.  Moreover, the gatekeeper-judge determines the criteria of reliability and whether it has been met.  The Daubert standard has been adopted by nearly 40 states, but Wisconsin has thus far chastely resisted its siren song despite numerous entreaties by litigants and legislative sallies.

My purpose here is not to debate the relative merits of the current Wisconsin rule and the Daubert rule.  (For the record, I’m no fan of the Daubert rule and my encomium to the Wisconsin rule is set out in an article in the Marquette Law Review.) Do I think the change justified?  No.  What is mystifying, though, is that in belatedly embracing the majority rule (Daubert) the proposed legislation adds the terse, quirky requirement that the expert’s methodology must be true as well as reliable.

The proposed rule, however, provides no criteria for determining the truth of an expert’s principles or methods or, for that matter, what exactly must be “true.”  The problem is especially acute in dynamic fields like psychology or genetics which are fluid and continuously evolving.  And what happens when we look to accounting or even economics?  Might a method be “reliable” enough under the federal rule yet fail the test of truth in Wisconsin courts?  Does “true” mean that the judge’s admissibility determination is higher than the traditional preponderance standard found in § 904.01(1)?  More precisely, does it mean that a science must be both “true” and reliable, or does it mean only that it must be true that the method is reliable?  Only time (and lots of money spent in litigation) will tell.

A few closing thoughts.  First, the legislature should immediately rethink its gloss on the Daubert rule.  If you want Daubert, adopt Daubert, not some ill-conceived mutation that purportedly places Wisconsin in the category of a super-duper Daubert jurisdiction.  This may be good politics but it is bad law and poor public policy. The revision also carries the cost of trashing not only the current Wisconsin rule, but also marginalizing (if not rendering useless) the federal case law that has applied the Daubert rule since 1994.  Second, the new rules will apply with equal force in criminal as well as civil cases.  No one is advocating (I hope) separate rules for criminal and civil cases, so some thought should be given to how the change might impact a wide variety of trials.  For criminal cases, added time, cost, and complexity are only the most obvious starting points. Clearly too little thought was given to this point or the evidence revisions would not have been dumped into the tort reform package.  Finally, what public policy justifies the change?  Will someone please point out the case law that illustrates the inadequacy of the current rule? I don’t see it.  But I do foresee a great deal of litigation in the wake of these ill-starred revisions.

 Kudos for organizing the conference go to Amelia Bizzaro (Law ‘03).  The conference drew excellent criminal lawyers and forensic experts from across the country (Boston, New York, Phoenix) as well as locally talented lawyers, such as Jerry Buting and Craig Albee.  Professor Paul Giannelli (Case Western) spoke about the NAS report itself while I discussed its impact on Wisconsin law governing expert evidence.  Paul and I agreed that the NAS report itself could be used to cross-examine forensic experts about deficiencies in their methodologies and theories, an inexpensive yet effective way of putting this information before a jury.

 The NAS report is must reading for all criminal trial lawyers.  The report explained in detail what had been suspected for some time: the methods and theories underlying a host of forensic sciences techniques lacked rigor and, in many instances, any objective reliability whatsoever.   Ballistics, tool mark identifications, fingerprints, handwriting, bite mark evidence, and arson investigations, to name just a few, were roundly criticized.  The NAS report’s rebuke was so devastating that just three months after its publication the Supreme Court relied on the report in holding that crime lab analysts must appear at trial, under oath, to explain their findings instead of just providing a terse paper report.  See Massachusetts v. Melendez-Diaz, 129 S.Ct. 2527, 2537 (2009) (Scalia, J.).

 Yet the conference signaled problems that go beyond the NAS report and to the heart of what we thought was “solid” science.  Marvin Schecter, who has shaken the trees in New York (and pretty much any where he goes), previewed unsettling new research, soon to be published, that will likely tarnish DNA’s luster as a gold standard.  Put differently, DNA may not be all its cracked up to be.  Nor is medical science itself immune from criticism.  Dr. Rich Kaplan, a Minneapolis-based pediatrician and child sexual abuse expert, discussed the stunningly significant rates of misdiagnoses of such abuse by ER docs and primary care physicians.  And in making his points, Kaplan showed a score of god-awful pictures depicting children’s diseased and injured genitalia that, as it turns out, had not been caused by sexual abuse.  

 In short, the conference raised provocative questions that will likely take decades to work through in light of the scant resources available to address them.  We can avoid the perils of toxic Hungarian red sludge easily enough – stay out of Hungary.  The ooze emanating from our own criminal justice system is, however, all around us and cannot be ignored.

At issue specifically was whether the court should allow in so-called “social framework evidence.” As Melissa Hart and I described in our recent article, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), such evidence involves using general research results to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case.  More specifically, in employment discrimination cases, we wrote: “Social framework evidence, offered by qualified social scientists, plays a central role in modern employment discrimination litigation. By offering insight into the operation of stereotyping and bias in decision making, social framework experts can help fact finders to assess other evidence more accurately.”

The court excluded the evidence in Bloomberg, and I agree with Colin’s thoughts on why the court’s reasoning was less than persuasive:

Under Federal Rule of Evidence 702, expert opinion testimony is only admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” The court found that Dr. Borgida’s proposed testimony did not meet this standard because, as noted,

“[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”…In addition,…“[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”

Really? So, the average juror watches “Modern Family” and fair and balanced news broadcasts, and all of a sudden he or she is an expert on gender stereotypes and discriminatory treatment in the workplace such that testimony from an actual expert in the field wouldn’t help the juror? Great! So, I think we can also assume that the average juror watches one of the CSIs, so who needs testimony by crime scene investigators? That testimony wouldn’t be helpful! And, I’m sure the average juror watches “Bones,” so there should never be any need for testimony by forensic anthropologists.

And while we’re at it, I’m certain that most people have seen one of the Law & Orders, so who needs law school and the bar exam? You want to go to marriage counseling? Why? If “Modern Family” is your go-to source for gender discrimination information, why shouldn’t it be your source for how to be a good spouse and parent? Heck, double it up with “The Middle,” and you get a full hour of great advice a week.

In all seriousness, it seems to me that the United States District Court for the Southern District of New York made three primary assumptions in Bloomberg, none of which are defensible: (1) We live in an enlightened world where everybody recognizes that gender discrimination is prevalent; (2) sitcoms and news reports are reliable sources of information for real world issues; and (3) the average person has a good enough grasp of gender issues such that testimony from a bona fide expert would not be helpful to jurors hearing a gender discrimination case. Do you agree?

You go, Colin. Perhaps other reasons might have existed to keep Dr. Borgida’s social framework evidence testimony out, but the court’s reasoning here is, well, absurd.

Given the expansively interpreted exceptions set forth in Rule 404(b) itself, the inextricable intertwinement exception seemed to me an unnecessary and confusing addition to the law.  The Seventh Circuit has now indicated its agreement with that view.  

In United States v. Gorman (No. 09-3010) (Kanne, J.), the court held:

[T]he inextricable intertwinement doctrine has . . . become overused, vague, and quite unhelpful.  To ensure that there are no more doubts about the court’s position on this issue — the inextricable intertwinement doctrine has outlived its usefulness.  Henceforth, resort to inextricable intertwinement is unavailable when determining a theory of admissibility. (15-16)

The Gorman case itself illustrates why the inextricable intertwinement doctrine is unnecessary and confusing.  The government charged Gorman with perjury based on a statement he made to a grand jury in which he denied that he “had” a particular car in his garage.  At trial, the government introduced evidence that Gorman stole the car from the garage.  Gorman objected that this was evidence of another bad act (a theft) that could not properly be used against him in a trial on perjury charges.  The trial court admitted the evidence under the inextricable intertwinement rule, but, as the Seventh Circuit pointed out, the theft was really simply direct evidence that Gorman’s grand jury testimony was false — it tended to show that Gorman “had” the car that he denied having.  There was no need to figure out whether the theft evidence somehow “completed the story” (which would go to establish inextricable intertwinement).

So long, inextricable intertwinement — the alliteration makes it fun to say, but otherwise I don’t think we will miss this particular doctrine.

A judge holding a defendant liable for trespass perhaps carries the vision of plaintiffs having their rights vindicated, but cases do not end at liability.  The judge must also determine whether further remedies beyond damages are appropriate, including whether a permanent injunction should issue.  Such is a weighty decision touches upon an extraordinary remedy: a court order that a defendant must cease and desist its illegal activity or face punishment for contempt.   That being said, in many property cases, a court order only issuing damages would effectuate a judicial licensing of the behavior.  With that result, the incentives are adjusted such that the right to exclude does not rest with the plaintiff; instead, it is determined only by the extent to which the defendant is willing and able to engage in the trespassing behavior.  As such, the courts have presumptively treated infringement of property rights as worthy of injunctive relief.

That has also been the rule in copyright infringement cases for the last few decades. 

The courts have roundly held that irreparable harm is presumed to flow from copyright infringement, and a plaintiff will normally be granted injunctive relief where there is a threat of future infringement.  As with tangible property, when a plaintiff obtains only a damage judgment, a defendant is then free to infringe that copyright owner’s exclusive rights again.  As Justice Story notes in his commentaries on equity, this would potentially “ruin[]” an intellectual property owner by miring him or her in “perpetual litigation.”  Joseph Story, 2 Commentaries on Equity Jurisprudence as Administered in England and the United States 931 (1836).

This rule, however, is slowly slipping out of the mainstream.  After the U.S. Supreme Court held in eBay v. MercExchange, 547 U.S. 388 (2006), that a patent infringement plaintiff “must demonstrate . . . that it has suffered an irreparable injury,” many lower courts are abolishing the presumption of irreparable harm in copyright cases, from the oft-cited Metro-Goldwyn-Mayers Studios v. Grokster, 518 F. Supp. 2d 1197 (C.D. Cal. 2007), to Judge Calabresi’s recent opinion in Salinger v. Colting, which Professor Boyden flagged for readers of this blog.

Though some courts continue to apply the presumption of irreparable harm, e.g., Microsoft Corp. v. McGee, 490 F. Supp. 2d 874 (S.D. Ohio 2007), the courts are trending towards eliminating the presumption, and thus, copyright plaintiffs should be prepared to prove that they will face irreparable injury in court, as the ABA has suggested.  ABA Section of Intellectual Property, American Bar Association, Annual Review of Intellectual Property Law Developments: 2006–08, at 415, 417 (George W. Jordan III et al. eds., 2009).

And therein lies the question. How does one prove irreparable harm?  Though a clear split of authority is emerging as to whether the presumption of irreparable harm survives eBay, an issue that most courts have not addressed is whether a threat of future infringement can give rise to irreparable harm.

Traditionally, the answer was a resounding “yes.”  The MGM court, however, stated that the threat of future infringement alone does not amount to irreparable harm, because “future copyright infringement can always be redressed via damages,” albeit in the multitude of suits Justice Story feared.  That is not to say that threats of future infringement are absolutely irrelevant to whether a plaintiff will suffer irreparable harm.  To the contrary, MGM left open the possibility that “future infringement plus” could satisfy the irreparable injury factor outlined in eBay.

In Designer Skin v. S & L Vitamins, 88 U.S.P.Q.2D 1679 (D. Ariz. 2008), the district court likewise treated the threat of future infringement as a factor in whether irreparable harm will result, adding that further irreparable injury was all the more possible because there was no market for licenses of the copyrights infringed in that case.  The court did state in dicta, however, that the threat of continuing infringement can by itself provide irreparable harm such that the equities could favor granting injunctive relief.  Ultimately, however, the court did not take a position supporting or opposing MGM‘s rule, instead holding that “future infringement plus” may furnish irreparable injury.

One court, however, in Apple v. Psystar, 673 F. Supp. 2d 943 (N.D. Cal. 2009), came close to holding explicitly that future infringement can be an independently adequate basis to support a finding of irreparable harm, though much is unclear from the decision.  Though the court treated the Psystar’s “brazen plans” to continue to allow third parties to infringe Apple’s copyrights as providing “compelling support” for a finding of irreparable harm, the court also found that Psystar’s actions would irreparably harm Apple’s business goodwill, brand, reputation, and market share.  And so, though the Northern District of California warmed up to the idea that future infringement can give rise to irreparable injury, one cannot be sure that a threat of continuing infringement would by itself be understood by this court to irreparably harm Apple or other copyright owners.

Thus, in light of this authority, attorneys should consider using the threat of future infringement as one piece of evidence relevant to whether irreparable harm would result, but, with the courts deviating from the traditional practice preceding eBay, future infringement alone may not carry the day.

A jury convicted Turner of selling crack to an undercover police officer.  The drugs were sent to the Wisconsin State Crime Laboratory, where they were analyzed by a chemist named Hanson, who confirmed that they were indeed crack.  The government intended to call Hanson to testify to this effect, but she went on maternity leave before the trial.  So Hanson’s supervisor, Block, was summoned instead.  Based on Hanson’s notes and data, Block testified that he agreed with her conclusion that the drugs were crack.

On appeal, Turner argued that Block’s testimony violated Melendez-Diaz. 

Melendez-Diaz held (on Confrontation Clause grounds) that the government may not simply submit a written report from a crime-lab analyst in lieu of calling the analyst to testify and giving the defendant a shot at cross-examination.  Although Turner did not involve the use of a written report in lieu of live testimony, it is not hard to see why the defendant thought there might be a connection between the cases: in his testimony, Block relied on the data collected by another analyst, and that analyst was not made available for cross-examination.  Just like Melendez-Diaz, then, Turner was denied an opportunity to cross-examine the person who was actually responsible for handling and testing the evidence used against him.

An earlier Seventh Circuit decision, United States v. Moon, 512 F.3d 359 (7th Cir. 2008), apparently supported the view that an expert witness like Block may properly rely on the information gathered and produced by a lab employee who does not testify at trial.  But Moon predated Melendez-Diaz — could it be that the more recent Supreme Court decision effectively overturned Moon?

The Seventh Circuit declined to read Melendez-Diaz so expansively.  The court relied on the fact that Hanson’s written report was not admitted as evidence, in contrast to the analysts’ reports in Melendez-Diaz.  This may be a sensible way of distinguishing Melendez-Diaz, but I do wonder whether Turner makes it too easy for the government to circumvent the right recognized in Melendez-Diaz for defendants to cross-examine crime-lab analysts in order to expose work that was shoddy or corrupt.  (Melendez-Diaz discussed at length a recent report from the National Academy of Sciences that was highly critical of crime-lab practices.)  On the other hand, as I suggested in an earlier post, the Supreme Court itself may be poised to gut Melendez-Diaz in Briscoe.

Litigation over other bad acts seems a routine feature of appeals in drug-trafficking cases.  As I suggested in this earlier post, it strikes me that the Seventh Circuit has pretty well interpreted the Rule 404(b) restrictions on evidence of other bad acts out of existence, at least in drug cases.  Although not as broadly worded as some other opinions, nothing in Harris seems inconsistent with the view that drug defendants are unlikely to find success with their Rule 404(b) arguments on appeal.

             The presentations spanned a broad array of issues and problems regularly confronted in civil litigation.   The strength of the presentations rested not just in their discussion of doctrine and rules, but in the panelists bringing to bear their experience and insights in preparing and trying cases.   Links to the written CLE material and the accompanying PowerPoint presentations will be posted on the Law School’s website later this week.

             Starting the day was Michael J. Cohen (L’86) of Meissner Tierney Fisher & Nichols SC, who underscored the important relationship between pretrial practice and outcomes at trial.  Drawing on his extensive experience as a commercial litigator, Mike addressed the duty to preserve evidence, especially electronic information, when a lawsuit appears on the horizon.  Mike emphasized the need to work with the client to understand what the law requires so that discoverable information is not destroyed, inadvertently or otherwise, thereby exposing the client (or counsel) to sanctions.  Pat Dunphy (L’76) of Cannon & Dunphy SC, addressed a different aspect of pretrial practice, namely, the creative use of requests to admit during discovery.  Pat described how he used requests to admit to obtain a binding judicial admission in a major product liability case that proved determinative of its outcome.

             Turning from the pretrial to the trial setting, the Hon. Patricia J. Gorence (L’77), a federal magistrate judge in Wisconsin’s Eastern District, spoke about the management of exhibits at trial.  Judge Gorence particularly emphasized some of the issues that arise in the use of electronic exhibits of various sorts, including the introduction of e-mails, website pages, and CGI animations.  Lynn Laufenberg (L’75), of the Laufenberg Law Group SC, then undertook the Herculean task of providing an overview of state law governing the admissibility of expert opinion testimony.  Lynn’s masterful lecture featured his own experience in working with a wide variety of experts, including a seasoned dairy farmer who turned out to be the critical witness in a stray voltage case.

             Leading the afternoon session was one of Wisconsin’s most accomplished women trial attorneys, Mary Lee Ratzel (L’81), of Peterson, Johnson, and Murray SC.  Drawing upon her considerable experience in defending complex civil cases, particularly medical malpractice actions, Mary Lee took up a variety of important issues related to expert testimony, including Wisconsin’s unique expert witness privilege, an expert’s reliance on inadmissible evidence, experts whose opinions “shift” between discovery and trial, and the use of learned treatises at trial.  Her partner, James T. Murray (L’74) then surveyed the law governing the lawyer-client privilege.  Jim focused attention on recurring problems regarding inadvertent disclosures by lawyers, the uncertain contours of the privilege where the client is a corporation, and the sticky problem of contacting employees, officers, and ex-employees of a corporate entity.  Closing the day was Timothy S. Trecek (L’93), of Habush, Habush & Rottier SC, who discussed two subjects that haunt personal injury litigation in particular: the collateral source rule and the admissibility of “other accident” evidence.  Tim addressed recent developments in litigation that have unsettled the long-standing rule that a tortfeasor cannot reap the benefits that might accrue to the plaintiff when, for example, a hospital accepts an insurer’s payment for less than the amount of its invoice.  Tim also skillfully laid out the intricate evidentiary steps required when lawyers want to put in proof of other accidents in order to prove causation, notice, or the existence of defects in a product.

             Next year’s conference will feature a docket of similarly stimulating issues and distinguished lawyers.  We have the good fortune to draw from the very deep well of Marquette trial lawyers to assist us.

At trial, the government thus relied heavily on the testimony of the confidential informant, Anderson, who recounted a series of interactions with Cannon and Harris.  Perhaps most damaging to Harris was testimony that Cannon told Anderson that his cousin was coming to Milwaukee with a signficant amount of cocaine.  This testimony, of course, was hearsay: Cannon himself did not testify, and Harris had no ability to cross-examine him.  In order to overcome the hearsay problem, the government relied on the exception for statements by co-conspirators.  But this required the government to prove that Cannon and Harris were indeed co-conspirators, and the strongest evidence of that were the very statements whose admissibility was at issue.  The government’s argument thus had something of a boot-strapping character. 

Making the argument even more awkward on appeal, the jury convicted Harris of possession with intent to distribute, but actually acquitted him on a conspiracy charge. 

The Seventh Circuit nonetheless rejected Harris’s hearsay argument and affirmed his conviction in  United States v. Harris (No. 08-4026) (Flaum, J.).

In order for co-conspirator statements to be admissible, the government must prove the existence of the conpiracy by a preponderance of the evidence, not the higher beyond-a-reasonable-doubt standard that governs the guilt determination at trial.  Even so, the Seventh Circuit conceded that it was a “close question” whether the government satisfied its burden of proof:

[T]he government’s evidence of the conspiracy centers around the disputed hearsay statements themselves (and while Bourjaily permits this kind of bootstrapping, it is not the strongest evidence of a conspiracy) and Harris’s presence in the Excursion when the police officers discovered a kilogram of cocaine.  (p. 9)

The court ultimately found the evidence sufficient, relying on the facts that Harris drove the Excursion from Arkansas to Milwaukee, Harris was carrying “an exceedingly large quantity of cash,” and Anderson’s statements were corroborated in a number of other respects.

As an aside, it is interesting to see the court use the possession of a large amount of cash as a basis for inferring drug activity.  This may be perfectly appropriate in the circumstances, but I wonder to what extent drawing this sort of inference unfairly disadvantages people who live in communities that are underserved by banks or who otherwise lack access to the sorts of financial services that many of us take for granted.  As I discussed in an earlier post, this is not the first time this fall that the Seventh Circuit has been confronted with the question of when criminal activity can be inferred from carrying cash.  Notably absent from these cases is any empirical research on how commonly and in what sorts of circumstances large sums of cash are carried for lawful purposes.

However, a host of recent trends in criminal law are putting tremendous pressure on the old act-based approach and pointing to a new paradigm in which a defendant is punished based on his propensity to commit crime, with little or no regard to the severity of the particular act of which he has been convicted (if, indeed, there has been a conviction at all).  Some examples include the use of relevant conduct in the federal sentencing guidelines, three strikes laws and other sentence enhancements based on prior convictions, felon-in-possession laws, civil commitment of sex offenders, and preventive detention of terrorism suspects.  Such innovations are suggestive of a system in which we punish bad people, not bad acts.  To be sure, there is a wide gray area in which it is unclear whether we are punishing acts or people, but when (for instance) we impose what is effectively a life sentence for the theft of three golf clubs (as was done under the California three strikes law), there can be little doubt that the person, not the act, is the target of our condemnation.

Although sentencing law may most dramatically reveal the competition between the act and propensity paradigms, evidence law is also implicated – perhaps most importantly in Federal Rule of Evidence 404(b), which seems pretty clearly to embrace the act paradigm.  More specifically, the rule states that evidence of other bad acts is not admissible to show the character of a defendant or his propensity to commit crime.  Yet, to judge by recent Seventh Circuit cases, it seems that evidence of uncharged drug offenses  and prior drug convictions are routinely used against defendants in drug cases.  (See, for instance, my post here.) 

Last week, the court shed some light on the Rule 404(b) exceptions in United States v. Conner (No. 07-3527) (Kanne, J.). 

Conner was charged with distribution of crack cocaine in a single transaction on December 20, 2006.  Yet, during Conner’s trial, the government presented the jury with evidence regarding other drug transactions involving Conner before and after that date.  The trial court admitted the evidence as “intricately related” to the charged crime.  The Seventh Circuit, however, determined this to be an improper use of the “intricately related” doctrine.

The doctrine was characterized by the Seventh Circuit this way:

Evidence of other bad acts is admissible when those acts are so intricately related to the charged conduct that they help the jury form a more complete picture of the crime.  Under this “intrictately related” doctrine, courts have admitted evidence that is necessary to fill a conceptual or chronological void, or that is so blended or connected that it incidentally involves, explains the circumstances surrounding, or tends to prove any element of, the charged crime.

Because the other bad acts used against Conner involved some of the same cast of characters as the December 20 transaction, the government argued that the evidence established context and showed the relationship among the co-consprirators.  But Conner was not actually charged with conspiracy — only with the substantive crime of drug distribution.  As to the one transaction that was at issue in the case, the other bad acts did not actually serve to “complete the story.”  Thus, the Seventh Circuit characterized the government’s use of the evidence as a “circumvent[ion]” of Rule 404(b).

The court’s analysis suggests that the “intricately related” doctrine might have more play in a case in which conspiracy was actually charged.  On the other hand, the court seemed generally skeptical of the propriety of the doctrine, characterizing it as “unhelpfully vague” and quoting earlier decisions in which courts had expressed the concern that the doctrine “threatens to override Rule 404(b).”

But, what the Seventh Circuit gives with one hand (narrow interpretation of the intricately related doctrine), the court takes away with the other (expansive interpretation of the knowledge/intent/mistake exception to Rule 404(b)).  Conner lost because, in the court’s view, his other bad acts went to establish his state of mind.

Rule 404(b) does indeed permit the use of prior bad acts to prove knowledge, intent, or absence of mistake.  Thus, for instance, it would be proper to use a defendant’s earlier drug transactions to rebut his claim that he had no idea the white powder in his possession was cocaine.

However, Conner did not present a mistake defense or otherwise clearly contest knowledge or intent.  No matter, said the Seventh Circuit: “By pleading not guilty to the charge and denying any wrongdoing, Conner placed the burden on the government to prove each element of the crime [including intent] beyond a reasonable doubt.”  The court concluded, “Thus, we find that the evidence of Conner’s previous drug transactions was properly directed at an issue other than his propensity to commit the crime.”

The court seems to suggest that the usefulness of prior bad acts in establishing intent negates the possibility that the evidence is being used for propensity purposes.  But these purposes are not mutually exclusive.  Indeed, Conner’s own bad acts seem most clearly relevant to intent only insofar as Conner’s intent to commit other drug crimes supports an inference that he also intended to commit a drug crime on December 20, 2006 — in other words, that he has a propensity to commit drug crimes.

The analysis in Conner contains no clear limiting principle on the admissibility in drug dealing cases of evidence of other drug transactions.  The same criticism that Conner levels against the intricately related doctrine might be leveled against its own expansive interpretation of the knowledge/intent/mistake exception.

One might wonder whether the court is just going around in circles when it narrowly interprets the intricately related doctrine, but then expansively interprets the knowledge/intent/mistake exception.  The court makes clear, however, that it believes there is a real difference between admitting other bad acts under an intricately related theory and an intent theory: in the latter setting, the defendant is entitled to a limiting instruction highlighting for the jury that it should not use the bad acts for propensity purposes.  So, the court apparently does see itself as doing something to preserve the traditional act-orientation of criminal law by channeling other bad acts evidence into the knowledge/intent/mistake exception.  Whether jurors actually pay attention to limiting instructions is another question . . . .

In plaintiff’s race and employment discrimination lawsuit against United Airlines, the trial court’s grant of summary judgment in favor of defendants is reversed as to eight causes of action as they must be decided by the jury.  Furthermore, the trial court’s order sustaining  763 of 764 of defendant’s objections was a manifest abuse of discretion.

I can only do this case justice by stating precisely some of the court’s decision. This is all takes place in the context of a rather ordinary race discrimination in employment claim:

At the same time, the summary judgment procedure has become the target of criticism on a number of fronts.  Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well‑funded litigants.  More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer’s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage.  Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court . . . .

Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication.  Defendants’ separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants’ own papers conceded.  And the moving papers concluded with a request for judicial notice of 174 pages.  All told, defendants’ moving papers were 1056 pages.

Plaintiff’s opposition was almost three times as long, including an 1894-page separate statement, papers the trial court would later disparage as “mostly verbiage,” a description with which, as will be seen, we disagree.  Curiously, no such criticism was leveled at defendants’ papers, not even those in reply, papers that defy description.

Defendants’ reply included, and properly, their response to plaintiff’s additional disputed facts.  Defendants’ reply also included, not so properly, a 297-page “Reply Separate Statement” and 153 pages of “Exhibits and Evidence in Support of Defendants’ Reply.”  And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff’s declaration, many of which objections were frivolous.  In all, defendants filed 1150 pages of reply.

Five thousand, four hundred, fifteen pages of material were before the trial court which, following argument, issued its order granting summary judgment, the substance of which order began as follows:

“Upon due consideration . . . and having taken the matter under submission,  [¶] The Court finds as follows:  [¶] Despite its girth, Plaintiff’s opposition to the separate statement of material facts is mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.”  There followed several pages of discussion which did not consider the evidence favorably to plaintiff, as the law requires.  Then, after granting summary judgment, the order ends with these two one‑sentence rulings:

“2.    Plaintiff’s 47 evidentiary objections are OVERRULED.
“3.    Defendants’ evidentiary objection No. 27 is OVERRULED, and the remainder of the Defendants’ evidentiary objections are SUSTAINED.” . . . .

We have referred to the misleading picture painted by the mass of paper before the trial court, and to the error that resulted.  And the two are undoubtedly related, as what apparently happened is that the trial court did not read all the papers, shown, for example, by the facts that it sustained “objections” to evidence where no objection was set forth and saw a “physical assault” of Avellan despite all the evidence of “arm wrestling.”  While not reading the papers cannot be condoned, it can perhaps be understood, as we hesitate to speculate how long it would take a trial court to meaningfully digest over 2200 pages of separate statements, analyze and rule on 764 objections set out in 325 pages, review it all in light of the applicable law, and then write a proper order.

The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard.  Thus, we conclude with some guidance in the event a trial court is ever again confronted with anything remotely close to that here.

Needless to say, the appellate courts rips the lawyers and the trial court another you-know-what.  This case is an evidence/employment discrimination law professor’s dream and why people like Walter Olson rightly believe in some cases that litigation is just plain overlawyered.

I can’t imagine being the lawyers involved in this case and the shame that will inevitably come with being associated with a name that is just too closely related to the word, “nadir,” as in the nadir of all litigation.

Really, read the whole opinion.

So while we wait for a case that is certain to affect a staggering percentage of criminal cases, both pending appeal and awaiting trial, I highly recommend J. Thomas Sullivan’s timely  article, Crawford, Retroactivity, and the Importance of Being Earnest, 92 Marq. L. Rev. 231 (Winter 2008).  To grossly oversimplify things, in 2004 the Supreme Court held its nose and unceremoniously dropped 25 years of case law (and countless law review articles) into law’s dumpster. The discarded doctrine loosely regulated the prosecution’s use of hearsay under the Sixth Amendment’s confrontation clause; its flaccid “reliability” approach had green lighted nearly all forms of hearsay imaginable (and then some).

Crawford v. Washington held instead that the framers had distinguished between “testimonial” and “nontestimonial” hearsay which are subject to vastly different conditions for admissibility. Without belaboring the history here, Crawford triggered seismic –no, tectonic – shifts in the use of hearsay evidence, a feature of every trial. The only glitch was that the Court did not share with us the meaning of “testimonial hearsay” or the reach of hinted-at exceptions for business records, coconspirator statements, or dying declarations.  Hence, we are on tenterhooks to see what comes of Melendez-Diaz.   

Sullivan’s article illuminates Crawford while addressing its impact on the thousands of prisoners convicted before 2004.  He approaches Crawford and the issue of retroactivity with insights based on practical experience and a scholar’s command of law. Sullivan, a law professor, represented a man (Earnest) who spent 24 years in prison before his conviction was overturned based on a retroactive application of Crawford.  The article places Earnest’s story in the context of the doctrinal turmoil that has marked the confrontation clause for decades.   

The article deftly weaves together three different threads.  First, there is the confrontation thread and the several false starts that preceded Crawford. Second, Justice Scalia’s majority opinion in Crawford clearly broke with prior, flawed precedent and unabashedly announced a new rule (though one ostensibly based on the confrontation clause’s history).  Crawford’s novel approach and fresh reading of history raised the issue of retroactivity, namely, who besides Crawford himself benefits from the clause’s rethinking?  In 2007 the Supreme Court unanimously held that Crawford is not retroactive, in accordance with its longstanding “Teague rule.”  In Seinfeldian terms, this meant “no soup for you” for the vast majority of those prisoners convicted prior to Crawford.

The third issue runs to the very core of federalism: What latitude do state courts have in retroactively applying “federal constitutional precedent more broadly than required by federal due process protections” (p. 236)?   In Danforth v. Minnesota (2008) the Supreme Court, according to Sullivan, afforded “states the option of formulating or applying retroactivity doctrines” that deviate from the federal approach in Teague (p. 300).  Sullivan underscores that thus far only New Mexico has fully availed itself of the discretion to apply Crawford retroactively more generously than does federal precedent, and it did so on behalf of his client Earnest. 

In sum, Sullivan’s article is at once an instructive case study, a helpful guide through difficult doctrine, and a template for postconviction litigation possibilities.  Should Melendez-Diaz break still more new doctrinal ground, as seems likely, Sullivan’s article will become all the more salient, particularly in litigating state criminal appeals.          

I particularly enjoyed Dan’s recounting of a colorful early encounter between psychology and evidence law.  In 1907, Hugo Münsterberg, a German psychology professor (pictured above), launched a ”scientific” attack on the premises of Anglo-American evidence law.  Taking up the gauntlet on behalf of the law was the legendary evidence professor John Henry Wigmore, who responded to Münsterberg with what Dan seems quite rightly to characterize as a “savagely brilliant critique.”  Score: Law-1, Psychology-0.

Here is the abstract of Dan’s article: 

Witness credibility is at the heart of every trial. And while it is axiomatic that credibility is left to the jury, evidence law is silent about how one decides whether a witness is accurate, lying, or honestly mistaken. More precisely, a finding that a witness is accurate rests on the following so-called testimonial assumptions: The witness accurately perceived the event; she accurately remembers those perceptions at trial; her testimony (words) accurately describes her memories; and she is sincere (not lying). Neither the law nor science provides a test for determining credibility. Rather, the jury’s life experience and common sense are thought to be sufficient or, more accurately, the only viable alternative.

This article develops several themes. First, the testimonial assumptions recognized by evidence law are products of mainstream thought and culture, an epistemology founded upon lay common sense and popular ideas about how people perceive, remember, and describe events as well as their sincerity. Second, the legitimacy of the modern trial depends upon this correspondence between popular thought and evidence doctrine, yet that correspondence is inadequately understood at present. Third, evidence law is bereft of any systematic approach to determining credibility. Rather, impeachment doctrine consists of ad hoc techniques that lawyers use at their discretion, the assumption being that they are sufficiently adroit and skilled to draw out the strengths and weaknesses related to the testimonial assumptions (credibility).

Set against the modern trial are several notable threats. First, proof that rejects or contradicts the law’s common sense epistemology, particularly social scientific or psychological evidence directed at popular misconceptions relating to credibility, effectively diminishes the jury’s role in fact finding and threatens the trial’s legitimacy. Second, trial lawyers with insufficient skill to use common law modes of impeachment fail to present the fact finder with the information popularly deemed necessary to determine credibility. Third, the vanishing trial risks relegating the trial jury to history’s museum of curiosities while breeding a generation of lawyers lacking fundamental trial skills and adept only at settlement.

The purpose of this article is to assess the testimonial assumptions in light of the law governing the impeachment and rehabilitation of witnesses. Evidence law is understandably reluctant to substitute its common sense underpinnings for the infirmities of modern psychology. Nonetheless, it should strive to better understand its roots in mainstream thought and popular culture if only to better appreciate where and how cultural changes, and psychology’s insights, might assist credibility determinations without undermining the trial’s legitimacy. Impeachment doctrine remains overly fixated on perjury and insufficiently attentive to the problem of the honestly mistaken witness. The article recommends several significant changes in trial practice and evidence doctrine that redress this imbalance without unmooring evidence law from its roots in the community’s sense of credibility.