FIRST: In federal court, evidence is admitted (or kept out) pursuant to two sets of rules.  In other words, you need to know the rules before the attorney can really help his or her client.

One set of rules comes from our beloved United States Constitution.  This venerable document contains the promise of “due process”.  It also the promise (in the Fifth Amendment) that no person shall be required to be a witness against him or herself.  The wonderful Sixth Amendment says that all people are entitled to the assistance of an attorney when charged with a crime, and perhaps most importantly, that the accused person has the right to “confront” her or his accusers.

The second set of rules are found in the handily named “Federal Rules of Evidence” or the “FRE”. These rules talk about relevance or irrelevance of certain types of information.  In the FRE you will finds lots of rules (and exceptions) for whether what we lawyers call “hearsay” can be used in a trial.  There are yet more rules that deal with the whether certain documents and other materials are allowed to be used by one side or the other. There are lots of rules and exceptions to the rules in the FRE.

SECOND: you cannot learn these rules from reading a book or website.  This lesson came back to me as I mapped out my week ahead and realized I will soon be attending the 40th reunion of my law school’s class at the University of Georgia.  I first “learned” evidence in a mandatory class at UGA, and did fairly well.  However, when I began as a practicing lawyer I quickly realized that the theory and the reality are often very different from one another.

The bottom line is that it takes a lawyer several years of winning and losing some evidentiary issues in the real world before that attorney truly “knows” the rules of evidence.  Even now, I like to go back and review much of what I first learned 40 years ago to keep a fresh perspective.  That is what I am doing much of this week and I hope the effort will help my client’s case.

Raul Gutierrez committed fraud when constructing the airport on the island nation of Trinidad and Tobago, and somehow the decidedly unfriendly federal prosecutors were able to bring federal criminal charges against him in south Florida.  Raul pled guilty in 2006, and as I have discussed on earlier occasions, the Judge imposed the usual financial penalties, such as restitution, along with a hefty prison sentence.  Raul had some real estate in Florida, the judge “forfeited ” the property, and later the nation of Trinidad and Tobago wanted to get the land as a “victim” of the offense.  Time passed, the island got the judge to let them weigh in on whether they could go after the property, and then, a magical thing happened.  A company that was once associated with our friend Raul claimed that they held a “security interest” in the property, even though no one had ever mentioned this million dollar “interest” nor recorded it in the preceding decade.  In other words, years later, friends of Raul claimed they held a piece of paper that said they had a superior interest in the particular piece of real estate.

The U.S. government and the island nation smelled a rat, and asked for a trial.  The Judge decided to split the trial into two parts: first, a trial on whether the document was “authentic”, and if so, what impact that had on the real estate.  The Judge said the document did not pass the smell test (was not authentic) , and that the holder of the document had no rights to the property. The beneficiaries of the document appealed, and the 11th Circuit affirmed.

The important part of the case discusses how the trial judge is basically the fact finder on whether a particular piece of evidence can be used.  Here, the islands’ lawyers pointed to the supposedly suspicious nature of the document, including that it was never previously recorded nor mentioned, that the person who found it supposedly made a previously inconsistent statement, and perhaps most importantly, that Mr. Gutierrez’s credibility was suspect.  In other words, when one side presents a document or piece of evidence, the trial judge is almost always the final word on whether that item can be used as evidence in a federal trial.

The Court of Appeals kind of criticized the trial judge for using the wrong standard of admissibility, but then came to the same result using the old “harmless error” rule.  To be clear, the appellate court reminded all of us that the standard for deciding authenticity is whether the proponent of the item presents “‘sufficient evidence to make out a prima facie case that the proffered evidence is what it purports to be.”  Then, “the ultimate question of authenticity of the documents is left to the fact-finder.”  In other words, if you cannot convince the trial judge that the item is real, you are not going to get that item into evidence.  Kind of seems obvious, but too many lawyers forget this rule, and fail to get crucial evidence into court.

Mr. Green has had some previous problems with law enforcement, and his problems got worse when he was charged with new crimes.  He got out on bail, but only with the condition that he wear a GPS-monitored ankle bracelet.  He apparently removed the ankle monitor, so the police went looking for him at a woman’s residence where they figured to find him.  Once inside the master bedroom, the police saw a large jacket (and the woman was not that size), men’s shoes on the floor, and most importantly, a firearm and ammunition scattered around. They subsequently discovered the unlucky Mr. Green hiding nearby in the closet. The feds charged him with being a previously (12 times!) convicted felon in possession of a firearm, and he went to trial represented by a very capable Federal Public Defender.

The Public Defender realized that he had something to work with in that no one ever saw Mr. Green with the gun, even if his presence under the laundry was kind of suspicious.  As a result, the prosecutors wanted to amp up their case, and they resorted to a tried-and-true method in federal court, introducing a “prior bad act” pursuant to Rule 404(b) from the Federal Rules of Evidence.   This “prior bad act” was a ten year old conviction under Florida state law for possession of a firearm by a convicted felon.  However, here’s where it got interesting, the prior Florida conviction was only obtained through a “nolo” plea.  In other words, back in 2006 Mr. Green did not admit he had a gun, he simply agreed to not contest the allegation that he had the firearm on that earlier occasion.  The prosecutors apparently had no witnesses to the 2006 incident, so they simply wanted to introduce the judgment, which is the paper setting out that Mr. Green was convicted of the felon-in-possession charge in 2006, with nothing more about the facts of that incident.

There are  three requirements for admitting a prior bad act under Rule 404(b), one of which is that the prosecutor needs to show that the prior bad act actually happened.  Mr. Green’s Public Defender pointed out that two other aspects of the Federal Rules of Evidence (Rules 410 and 803(22)(A)) restrict the use of previous “nolo” pleas in various contexts, and that this same principle should prevent a prosecutor from using a “nolo” plea when trying to prove a prior bad act really took place pursuant to Rule 404(b).  The Court of Appeals hemmed and hawed for many pages, finally agreeing that a prosecutor cannot be permitted to prove the facts of a prior bad act under Rule 404(b) simply by admitting a copy of the judgment obtained after a “nolo” plea.    However, as they do so many times, the appellate court said the error was “harmless”, so unlucky Mr. Green will serve the next 22 years in custody.  I applaud his legal team for their creativity and persistence, and figure they have a better than average chance of getting the U.S. Supreme Court to accept the matter for review.

Aleksandr Zhyltsou is from the Ukraine, and supposedly is a professional forger. Another Ukrainian con man named Timku was caught in a series of frauds, pretending to be a diplomat and the like. Timku tried to help himself by agreeing to testify against Zhyltsou concerning a bogus birth certificate that Timku used to avoid military service back in the Ukraine (a not unreasonable effort, considering recent events). According to Timku, he saw the Defendant put the birth certificate together on a laptop when they were at a cafe, and noted that the document was sent to him via an email address that the Defendant had previously used. The prosecutor shored up parts of Timku’s story with witnesses showing that birth certificates can be used to avoid military service, and that this particular email with the birth certificate did indeed come through this particular email address, However, there was no proof that the human being on trial, Zhyltsou, was the person who created and sent the document, other than Timku’s testimony.

The prosecutor then got an FBI agent to go on a site called “VK”, which he claimed was the Russian equivalent of Facebook. The agent found a page that had the Defendant’s picture on it, and importantly, had the same email address as the one through which the bogus birth certificate had been sent.

Rule 901 of the Federal Rules of Evidence require that a document must be “authenticated” before it can be used in a trial. The prosecutor said this VK page was authentic because it had the Defendant’s picture and the email address. This VK page was highlighted during the prosecutor’s closing argument and likely led to the jury concluding the Timku was telling the truth.

The Court of Appeals reversed. “It is uncontroverted that information about Zhyltsou appeared on the VK page: his name, photograph, and some details about his life consistent with Timku’s testimony about him. But there was no evidence that Zhyltsou himself had created the page or was responsible for its contents. Had the government sought to introduce, for instance, a flyer found on the street that contained Zhyltsou’s Skype address and was purportedly written or authorized by him, the district court surely would have required some evidence that the flyer did, in fact, emanate from Zhyltsou. Otherwise, how could the in the flyer be attributed to him?”

The federal court of appeals noted that at least some courts are now moving toward the position that a higher level of authentication might be needed when one side or the other claims that a page off the Internet is “authentic.” This is a good read for people interested in the whole area of how modern technology and the explosion of electronic information makes the older Rules of Evidence difficult to apply.

Recall that a couple of years ago the Supreme Court ruled that prosecutors cannot use crime lab reports in criminal trials unless the analysts responsible for creating the report came to court and gave live testimony. Last year that rule was reaffirmed and deepened when the Court said the Confrontation Clause was violated if the prosecutor called a colleague or supervisor of the analyst who did the work.

Into this background came the case of Sandy Williams. A sexual assault occurred in Illinois in 2000, and biological material recovered by the police was sent for analysis to Cellmark Diagnostics Laboratory in Maryland. Williams was later arrested on other charges, and his DNA was sent to the Illinois State Police Crime Lab. Eventually, a prosecution expert witness compared the DNA from the Illinois lab with the material analyzed in the Maryland lab, opining that they came from the same person. The prosecutor never called anyone from the Maryland lab nor even offered the reports authored by the Cellmark Diagnostics analyst.

As noted above, the case is a mess, with 4 Justices signing on to the majority opinion written by Justice Alito. According to Justice Alito, there was no Confrontation Clause problem, for two reasons.

First, Justice Alito said that while the prosecution’s expert did discuss the report written by the Cellmark analyst, this discussion was not offered to prove that what was in it was true. Even more troubling is that Justice Alito and three others believe that the report itself was not the sort of evidence to which the confrontation clause applies because it was made “for the purpose of finding a rapist who was on the loose.” In other words, the Constitution’s protections seem to be elastic, stretching very thin when a violent or unsolved crime is at issue.

Justice Alito gave a second reason for affirming the conviction. Williams elected to have a bench trial, which seemed important to Justice Alito. The fact that the trial judge was so impressed by the analyst’s testimony somehow, for Justice Alito and the other three, showed there was no Confrontation Clause problem.

The crucial fifth vote came from Justice Thomas, who wrote an opinion that no other member of the Court would join. He suggested “a reading of the Confrontation Clause that respects its historically limited application to a narrow class of statements bearing indicia of solemnity.” According to Justice Thomas, the Cellmark report was not within that class.

Justice Kagan issued a spirited dissent joined by three others. First, she noted that the Cellmark analyst who was not called had, in an earlier trial, admitted to having made an egregious mistake when comparing DNA. The confrontation clause, Justice Kagan wrote, is “a mechanism for catching such errors,” demonstrating “the genius of an 18th-century device as applied to 21st-century evidence.” She also noted that under the two recent confrontation clause precedents “this is an open-and-shut case.” But the decision issued on Monday, she said, had turned a clear rule into a murky one. She urged lower courts to continue to follow the recent rulings on crime lab evidence “until a majority of this court reverses or confines those decisions.”

Yesterday, the Eleventh Circuit, which hears appeals from federal cases here in Atlanta, held in U.S. v. Phaknikone that profile photographs from the criminal defendant’s Myspace account were inadmissible evidence of character. The government argued that the photos demonstrated modus operandi: the defendant’s gangsta style as shown in the photographs identified the defendant because he robbed banks “like a gangster.” The Court saw through the argument, but held that admitting the photos was harmless error, due to the “overwhelming” evidence of Phaknikone’s guilt.

The relevant photograph in this case showed Phaknikone in the driver’s seat of a car. A tattoo is visible on his neck, as well as a large tattoo on his left arm, and he is holding a handgun in his right hand. A passenger is handing something to a child in the back seat of the car. The Court held that this photograph “proves only that Phaknikone, on an earlier occasion, possessed a handgun in the presence of a child. Although the photograph may portray a ‘gangster-type personality,’ the photograph does not evidence the modus operandi of a bank robber who commits his crimes with a signature trait.”

Phaknikone was convicted on fifteen counts stemming from seven bank robberies in late 2006 and early 2007 in Northeast Georgia. He was captured fleeing one robbery and confessed to three more. Evidence regarding clothing and shoes worn by the robbers, eyewitness accounts of his tattoos, and behavior during the robberies was introduced by the government, as well. The Court held that the evidence was overwhelming, viewed in its totality, so the admission of the photographs was harmless error.

The Court’s opinion is available here.

View larger version of image here.