Federal Evidence Blog

Contrasting Admission Of Relevant Evidence Under the FRE And The Federal Death Penalty Act

"Admissibility of relevant evidence is actually narrower under the FDPA [Federal Death Penalty Act] than under the FRE." - United States v. Fell, 531 F.3d 197 (2d Cir. June 27, 2008) (No. 06-2882-CR)

Defendant Fell appealed the sentence of death imposed by the U.S. District Court for the District of Vermont after he was convicted of carjacking and kidnapping resulting in death. Part of his appeal concerned his claim that the court erroneously excluded a draft plea agreement that the defendant had signed. The defendant contended it "was mitigation evidence that rebutted the government's position that Fell had not accepted responsibility" for his crimes.

The draft plea agreement had been specifically conditioned upon approval by the U.S. Attorney General, pursuant to Department of Justice guidelines. After the defendant and the U.S. Attorney submitted the plea agreement, the Attorney General rejected it. The government sought the death penalty and moved to exclude the draft plea agreement and statements made during plea negotiations as irrelevant.

The trial court agreed to exclude the plea agreement evidence because it constituted only "a prosecutor's statements of personal belief" on aggravating and mitigating factors, that "should have no bearing on the jury's independent evaluation of the evidence." In addition, the trial court emphasized that the draft had minimal probative value because "the opinions of the prosecutors [did not] make the existence or non-existence of any mitigating factor more probable or less probable." United States v. Fell, 372 F.Supp.2d 773, 783 (D.Vt. 2005).

Nonetheless, the trial court did allow the defendant to introduce a stipulation during the penalty phase that reflected that he had offered to plead guilty in exchange for a sentence of life imprisonment without parole. According to the trial court this "offer [was] relevant to the mitigating factor of acceptance of responsibility." All of this was to no avail for the defendant, who was sentenced to death. On appeal, he contended that the trial court violated the FDPA because the draft agreement was relevant to the mitigation factors that the jury should have considered.

The Second Circuit rejected this argument, noting that "[i]n cases governed by the FDPA, the Federal Rules of Evidence do not apply at the penalty phase." The statute itself specified that any relevant evidence is admissible regardless of the FRE, unless "its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." 18 U.S.C. § 3593(c). The circuit reiterated its reasoning in a previous review of the defendant's case: Even though the FDPA allows more evidence to be considered in the penalty phase of a capital case, "the presumption of admissibility of relevant evidence is actually narrower under the FDPA than under the FRE." (emphasis added) The balancing test of probative value and prejudicial effect in the FDPA "is ... more stringent than its counterpart in the FRE." The FDPA requires only that the probative value be "outweighed," while FRE 403 requires that it must be "substantially outweighed"." United States v. Fell, 360 F.3d 135, 145 (2d Cir. 2004) (the constitution did not require adherence to the FRE), cert. denied, 543 U.S. 946 (2004).

According to the circuit, the trial court "appropriately concluded that, pursuant to 18 U.S.C. § 3593(c), the draft plea agreement's inclusion of the unadopted statements of the prosecutors lacked evidentiary value and that it would distract the jury from an independent assessment of the mitigating factors. In addition, admission of the draft would authorize a confusing and unproductive inquiry into incomplete plea negotiations." Viewed in this light, the trial court did not abuse its discretion to exclude the draft plea agreement.Read more

Supreme Court Watch: Amici Arguments On The Confrontation Clause Implications Of Forensic Reports

Amici briefs for the petitioner in Melendez-Diaz v. Massachusetts elaborate on the constitutionality of the use of forensic reports in lieu of forensic examiner testimony

Yesterday we noted that the petitioner in Melendez-Diaz v. Massachusetts (No. 07-591) filed its brief on the issue:

"Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)."

Petitioner’s Brief on the Merits. At present four amici briefs have been filed in support of the Petitioner. Links to these briefs and a brief synopsis of their arguments are noted in the chart below:Read more

Supreme Court Watch: The Confrontation Clause Docket for the 2009 Term

Melendez-Diaz v. Massachusetts: Can forensic reports be used in lieu of forensic examiner testimony?

With the close of the current Term, Supreme Court briefing has started on cases that address further implications of the Court’s 2004 revamping of the standards applied under the Sixth Amendment Confrontation Clause as announced in Crawford v. Washington. Recently, the petitioner in Melendez-Diaz v. Massachusetts (No. 07-591) filed his brief on the question identified in the Court’s grant of certiorari review: "Whether a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is ‘testimonial’ evidence subject to the demands of the Confrontation Clause as set forth in Crawford v. Washington, 541 U.S. 36 (2004)." Petitioner’s Brief on the Merits, at i.Read more

Having A Good Faith Basis To Question A Witness

The Seventh Circuit revisited the necessity of having a good faith basis to question a witness about a particular subject in United States v. Taylor, 522 F.3d 731 (7th Cir. 2008).

During a traffic stop, crack cocaine was seized in a car. At trial, the passenger in the defendant’s car testified for the government and told the jury that the defendant indicated he was planning to sell drugs during their trip. Defense counsel sought to cross-examination the passenger concerning whether the government had quashed state warrants before trial in exchange for her cooperation and testimony. Defense counsel had learned that the passenger had an outstanding state warrants that had been quashed and suspected that a deal had been made for the passenger’s testimony. Outside the presence of the jury, the trial court held a hearing on the issue and the passenger testified that she did not know why the warrants had been quashed. The investigator also explained that no promises had been made to quash the warrants. The prosecutor informed the judge that there was no federal government role in quashing the warrants. The defendant was convicted on the drug charges and sentenced to 355 months in prison.

The Seventh Circuit agreed that the cross-examination questioning was inadmissible since there was no good faith basis to suggest the government arranged for the quashing of the warrant in exchange for the witness’s testimony. As the circuit explained, "You are not permitted to cross-examine a witness about a particular topic without a good-faith belief that the answers will be helpful to your case, as distinct from hoping that the question alone will insinuate a helpful answer (‘are you not testifying against the defendant because you believe the prosecutor helped to quash the state warrants against you?’). If there is an objection at trial to a question asked on cross-examination, on the ground that there is no good-faith basis for it, and at a sidebar the judge so finds, he must sustain the objection. That in effect is what the judge did here, when the hearing revealed the shot-in-the-dark nature of the proposed cross-examination." Taylor, 522 F.3d at 736 (citing United States v. Adames, 56 F.3d 737, 745 & n.5 (7th Cir. 1995) (trial court properly excluded questioning of witness about murder where there was no good faith basis for the question); United States v. Guay, 108 F.3d 545, 552-53 (4th Cir. 1997) (“A cross-examiner inquiring into specific instances of a defendant's misconduct must have a good-faith factual basis for such questions.”)). Read more

Supreme Court Watch: Giles, the Confrontation Clause and Forfeiture by Wrongdoing

Giles Confrontation Clause ruling on scope of the forfeiture by wrongdoing exception

Yesterday, the U.S. Supreme Court issued its latest Confrontation Clause decision, in a 6 to 3 ruling, following its landmark opinion in Crawford v. Washington, 541 U. S. 36 (2004). After Crawford, the norm is that before "testimonial" statements may be admitted, the government must show (a) the witness is unavailable and (b) the defense had a prior opportunity to cross-examine. Only two exceptions apply to this rule, either the dying declaration exception or the forfeiture by wrongdoing exception. Both exceptions were recognized at the time the Confrontation Clause was adopted.Read more

Congress Watch: New Support For Attorney-Client Privilege Legislation

Support Grows For Attorney-Client Privilege Legislation In Unexpected Corner

As recently noted, pending in Congress are two separately passed measures in the House of Representatives and Senate which would codify new protections under the attorney-client privilege (S. 2450 and H.R. 3013). On June 20, 2008, 33 former U.S. Attorneys wrote to Senate Judiciary Committee Patrick Leahy and his committee colleagues in support of S. 186, introduced by Senator Specter on January 4, 2007. See 153 CONG. REC. S181 (daily ed. Jan. 4, 2007) (remarks of Sen. Specter upon introduction of S. 186). Read more

Congress Watch: Is Attorney-Client Privilege Legislative Reform Imminent?

The U.S. Judicial Conference and Congress have considered separate measures that would affect the attorney-client privilege. The House approach would codify a new statute whereas the Senate approach adopts a new FRE 502. The other bill would adopt a new statute. How close is either measure to becoming law?

For nearly a decade, there has been a national debate on what guidelines should apply in criminal cases involving corporations. In 1999, the Department of Justice promulgated guidelines for prosecuting corporations. See Memorandum from Deputy Attorney General Eric H. Holder, Jr. to Heads of Department Components and U.S. Attorneys, Bringing Criminal Charges Against Corporations (June 16, 1999) [Holder Memo] This policy was updated in 2003 in the Memorandum from Deputy Attorney General Larry Thompson to Heads of Department Components and U.S. Attorneys, Principles of Federal Prosecution of Business Organizations (Jan. 20, 2003) [Thompson Memo] Read more

Supreme Court Watch: Giles Confrontation Clause Decision Expected Soon

Supreme Court revisits forfeiture by wrongdoing exception: In People v. Giles, the Court probes whether a defendant who murders a witness forfeits the Sixth Amendment right to confront that witness even if he acted not intending to rendering the witness unavailable at trial.

Once again, the Supreme Court is considering the boundaries of the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 62 (2004). On April 22, 2008, oral argument was heard in Giles v. California (No. 07-6053). Read more

Proposed Amendment To FRE 804(b)(3) (Statements Against Interest) (Part II)

The Standing Committee on Rules of Practice and Procedure at its June 9-10, 2008 meeting reports that the Committee approved publishing a proposed amendment to FRE 804(b)(3) (Statement Against Interest).

The text of the proposed amendment, its advisory committee notes and the transmittal report from the Advisory Committee on Evidence Rules are posted below and are also available at FederalEvidence.com's Amendments Page. That page also includes a time line of key actions taken on the proposal. Read more

Proposed Amendment To FRE 804(b)(3) Statement Against Interest Exception (Part I)

A proposed amendment to FRE 804(b)(3) (Statement Against Interest) will be considered at the June 9-10, 2008 meeting of the Standing Committee on Rules of Practice and Procedure

The Standing Committee on Rules of Practice and Procedure starts its two-day summer meeting in Washington D.C. on June 9. The Committee will consider a proposal by the Advisory Committee on Evidence Rules to amend FRE 804(b)(3). At its May 1-2 meeting in Boston, the Evidence Committee agreed to a proposed amendment to FRE 804(b)(3), the hearsay exception for declarations against penal interest.Read more

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