Category Archives: Evidence

Excited Utterances: Pinned at the Scene of the Crime

The law of the case doctrine and the excited utterance exception to the hearsay rule are two very fact-specific determinations. The law of the case doctrine is not meant to be a limitation on judicial discretion or power; however, judges should not completely disregard prior decisions made within a single case. Similarly, the foundation and basis of the excited utterance exception is crucial in determining whether it should be applied to the statements of a specific case at hand. Recently, in People v. Cummings (Ct. App. 5/8/18) (Wilson, J.) (6-1-0), the Court found that a lower court erroneously admitted such statements, leading to the conviction of the defendant, Cummings. There, the out-of-court statements were extracted from the background of a 911 call, made by an unidentified person. Continue reading

Family and friends constitute a community and may offer testimony about the complainant’s truthfulness

Family and friends may constitute a relevant "community" for testimony about an opposing witness’s poor reputation for truth and veracity. In People v. Fernandez (Ct. App. 6/2/2011) (Ciparick, J.) (5-2), the Court of Appeals held that the  trial court deprived the jury of important information and abused its discretion by excluding testimony from the Defendant’s parents about the complainant’s reputation for truthfulness. The Defendant, 17 years old when indicted, had allegedly engaged in sexual conduct with the complainant, his then eight-year-old niece. During the relevant five month time period, the Defendant had been living with his parents, who unsuccessfully attempted to offer testimony about the complainant’s poor reputation for truthfulness among their large family. 

At trial, the jury heard conflicting testimony. The complainant testified that she visited and was sexually abused by the Defendant in his home more than five times in 2005. By contrast, the Defendant denied any sexual encounters and asserted that only two visits occurred. His parents – the complainant’s biological great-aunt and uncle – corroborated his version of the events and added that a “house rule” prohibited the children from going upstairs without adult supervision. 

After the Defendant’s parents established that they had known the complainant all her life and frequently spoke with relatives and friends about the complainant’s reputation for truthfulness, defense counsel asked the parents to identify that reputation. The People objected and stated that (1) no foundation had be established and (2) that the Complainant’s family and friends did not constitute a “community.” The trial judge agreed. 

The Defendant was convicted of Sexual Abuse 1° and 2° and Endangering the Welfare of a Child, but was acquitted of the more serious Rape 1° and Sexual Conduct Against a Child 2° charges. The Defendant unsuccessfully moved to set aside the verdict pursuant to CPL 330.30 and argued that the trial court erred when it precluded the defense from eliciting testimony about the complainant’s reputation in the community for truthfulness. The Appellate Division affirmed, but the Court of Appeals reversed.

The Court began by stating that a community is not limited to one’s residential neighborhood. Further, once a proper foundation is established, the jury must evaluate the credibility of character witnesses who testifies and decide how much weight to give the views reported in the testimony. Whether family and friends constitute a relevant community for “purposes of introducing testimony pertaining to an opposing witness’ bad reputation for truth and veracity” was a question of first impression for the Court and was answered in the affirmative.

The Court held that the testimony from Collazo and Ramona Fernandez – the Defendant’s parents – provided a proper foundation for reputation evidence. They had known the complainant since her birth and were members of the same large, extended family – 25-30 people. This testimony sufficiently established a foundation to admit further testimony regarding the complainant’s poor reputation for truth and veracity in the community. 

The majority emphasized that presenting “reputation evidence by a criminal defendant is a matter of right, not discretion,” assuming a proper foundation had been laid. Additionally, any purported bias could have been explored on cross-examination. The court granted a new trial. 

Judge Graffeo dissented and argued that because a child’s emotional well-being is derived from “support and guidance, care and protection, and acceptance and affection” from relatives, the family members should not be allowed to provide testimony on this topic. Further, a jury would question the credibility of such testimony, which is likely biased. In addition to emphasizing the potentially disastrous psychological consequences for the child, the dissent identified alternative sources for reputation evidence, including teachers, school counselors, and other community members. These individuals would have been able to sufficiently address the child’s reputation without bias and avoid the negative impact on the child’s emotional welfare.  (RB/LC)

 

People can appeal Brady dismissal

The People have a right to appeal an order dismissing an indictment where the authority to dismiss arises from a delineated set of statutory provisions.

In People v. Alonso (Ct. App. 5/3/2011) (Lippman, CJ.) (5–2), the trial court dismissed the indictments with prejudice after a Brady violation.  The court reasoned that the magnitude of the violation required dismissal.  The dismissal was authorized pursuant to the catch all language in CPL § 240.70(1) which provides that a court considering a discovery violation may "take any other appropriate action."

The People appealed the order pursuant to CPL § 450.20, which sets forth the bounds of the People’s right to appeal dismissal of an indictment.  The Appellate Division dismissed the appeal without considering the merits.  It reasoned that the People lacked the right to appeal due to the authority by which the indictments were dismissed.  Section 450.20 enumerates a list of circumstances which give the People a right of appeal, but § 240.70 is not listed.

In reversing the Appellate Division and remanding for consideration of the appeal on the merits, the Court of Appeals held that the trial court lacked the authority to dismiss the indictment pursuant to § 240.70(1) alone.  It reasoned that § 240.70 empowers a court to construct a remedy for a discovery violation, but that the remedy may not include dismissal unless a separate source of authority is invoked.  The Court of Appeals found that the trial court dismissed the indictments by relying on the express authority set forth in CPL § 210.20(1)(h).  Section 210.20(1)(h) provides that a court may dismiss an indictment where a “legal impediment to conviction” exits.  The Court of Appeals explained that once the trial court found that the Brady violation required dismissal of the indictments a “legal impediment to conviction” arose, and the subsequent dismissal necessarily relied on the authority from § 210.20(1)(h).  Section 210.20 is listed in § 450.70, and thus the Court of Appeals held that the People had a right to appeal.

Judge Jones was joined by Judge Smith in dissent.  They argued that the court failed to follow the precedent set forth in People v Dunn, 4 N.Y.3d 495 (2005).  The dissenters pointed out that the Dunn court, in affirming dismissal of an appeal from a dismissal of an indictment, held that it would “not resort to interpretive contrivances to broaden the scope of CPL 450.20."  See Dunn, 4 N.Y.3d at 497.  The dissenters considered the conversion of a dismissal under § 240.70 into a dismissal under § 210.20 as the sort of “interpretive contrivance” proscribed in Dunn. (MM/LC)

New case on Rape Shield Law

In People v. Scott (Ct. App. 5/3/2011) (Jones, J.) (7-0), three 8th grade girls went to a party and then to another house, where they drank, smoked marijuana, and engaged in sexual activity.  One of them alleged that a male minor (Steven A.) and the Defendant, a 23-year-old male, had sex with her, the latter against her will.  The trial court agreed with the People that evidence of sexual contact with Steven A. was inadmissible under the Rape Shield Law unless the People introduced evidence about the victim's bruising.  In addition, the Defendant was prohibited from elicitng from another witness that the victim stated that she was crying because she had sex with Steven A.

The Court of Appeals ducked the question of whether the witness' statement was admissible notwithstanding the Rape Shield Law, since it was relevant to a defense and in the interests of justice to do so.  The court declined to address the issue because the Defendant was acquitted of Rape 1º—forcible rape.  Instead, he was convicted of Rape 2º—statutory rape, which does not require evidence of force or lack of consent. 

So let's continue where the court left off.  What if the Defendant had been convicted of forcible rape?  One could argue that the evidence of the other sexual encounter should have been admitted since it would have gone to rebut the implication that she was crying because she had been forcibly raped.  On the other hand, the question is not just whether the evidence was relevant to a defense but also whether it is in the interests of justice to admit it.  Here, the court must take into account the strong policy reasons behind the Rape Shield Law.  In addition, the People were permitted to introduce the victim's statement to one of the other girls that she did not want to have sex with Defendant.  She made the statement while exiting the bedroom where she was alone with the Defendant.  She came out crying and wearing only a bed sheet.  The helpfulness of the second statement, purporting to explain her crying as a result of her encounter with Steven A., is ultimately undercut by the first, where she is crying and speaking about the incident with the Defendant.  Ultimately, in balancing the various interests, the court could have concluded that it was not an abuse of discretion to exclude the evidence.  (LC)

No duty of police to investigate defense

The police do not have an affirmative duty under Brady to investigate a self-defense claim.  In People v. Hayes (Ct. App. 5/10/2011) (Jones, J.) (6-1), the Defendant was accused of stabbing a fellow moviegoer who was talking throughout the film.  The Defendant argued that the People committed a Brady violation, because the police officers who secured the crime scene did not interview several individuals who claimed that the complainant was, in fact, the initial aggressor.  Morever, the Defendant complained that the trial court improperly limited his cross-examination of the police officer.  The Court of Appeals affirmed.

With respect to the Defendant's Brady claim, the court summarized the argument briefly, "Here, defendant claims that the police and the People committed a Brady violation by failing to interview, or at a minimum, acquire the contact information of the two individuals who made the statements overheard by Sergeant Fitzpatrick. While defendant's argument is couched in Brady terms, when distilled, he essentially seeks a rule that would impose an affirmative duty upon the police to obtain potentially exculpatory evidence for the benefit of a criminal defendant. However, this Court has declined to impose such an obligation."  The court distinguished the type of affirmative duty that the Defendant was arguing for from the duty to preserve existing evidence that had long been recognized as a corollary to Brady.  The court's ruling was unanimous on this point.

Regarding the Defendant's assertion that his ability to cross-examine the police was improvidently limited, the majority held that the trial court did not abuse its discretion because there was too great a risk that the jury would have considered the bystanders' comments for the truth of the matter asserted.  In addition, the statements had limited value because whether the complainant initially had the knife was not that probative.

Chief Judge Lippman dissented but only as to the second issue.  He argued that there was no evidence that the trial judge actually exercised discretion.  The Chief Judge viewed it as a purely legal error on the trial court's part.  (LC)