American Bar Association, Section of Criminal Justice

American Bar Association, Section of Criminal Justice

Committee on Rules of Criminal Procedure, Evidence and Police Practices

Meeting – Friday, January 4, 2008, 9:00 a.m. – 12:00 noon

Fordham University Law School, Room 122, 140 West 62nd Street

New York, New York 10023

MINUTES OF MEETING

The ABA Section of Criminal Justice, Committee on Rules of Criminal Procedure, Evidence and Police practices met on Friday, January 4, 2008, at Fordham University Law School in conjunction with the annual meeting of the Association of American Law Schools. The Committee received updates and discussed proposals for amendments to the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and police practices. Also, a report was considered on a CLE program to be sponsored by our Committee at the August, 2008, annual ABA meeting. The meeting was attended by 16 persons. A list of attendees is attached.

I.  Federal Rules of Evidence

Professor Dan Capra of Fordham University, reporter for the Advisory Committee on the Federal Rules of Evidence, U.S. Judicial Conference, reviewed issues pending before the Federal Advisory Committee. He stated that there is strong support for the newly proposed FRE 502, Attorney-Client Privilege and Work Product; Limitations on Waiver submitted to Congress to be considered by the House and Senate Judiciary Committees.

Professor Capra next discussed the Federal Advisory Committee’s restyling project to rewrite the Federal Rules of Evidence (FRE). The purpose of the project is to update and clarify the language of the FRE. It has already been completed for the Rules of Criminal Procedure and the Federal Rules of Appellate Procedure. Chief Justice Rehnquist believed that restyling for Evidence was not possible; however, the Standing Committee wants to go forward with it. Prof. Capra gave a brief description of the process. Prof. Joel Kimball takes the first attempt at restyling the rule, which is then sent to Prof. Capra to see if the suggested changes affect the substance of the rule. The rule is next sent to the Style Subcommittee to resolve any disputes and, then, to the Advisory Committee for its review. Next, the proposed restyled rules will be submitted for public comments. Prof. Capra said the goal is to have all rules out for comment by 2010.

Professor Capra ten commented on pending Federal hate crimes legislation, the Local Law Enforcement Hate Crimes Prevention Act of 2007. The bill has been passed by the House and is currently before the Senate. Prof. Capra expressed a concern that certain provisions of the Act might conflict with FRE Rule 404(b) and result in textual problems. He suggested that our committee study the issue and provide a comment.

The Committee then discussed three proposed amendments to the Federal Rules of Evidence:

A.  Rule 804(b)(3), Statements Against Interest.

A proposal, submitted by Prof. David Aaronson, recommends adding the following language to FRE 804b)(3): “A statement tending to expose the declarant to criminal liability and offered to either inculpate or exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” (Added language underlined) Prof. Capra stated that the Advisory Committee is very interested in considering an amendment to the rule and that the Justice Department had a “measured response.” Prof. Capra also said that the issue is still before the Advisory Committee and that the Committee decided to delay any immediate action. Prof. Capra said that he has written a memo on the subject and that his proposal is to change “exculpate” to “in a criminal case,” but he was also open to Prof. Aaronson’s proposal. There was also a discussion of whether the Advisory Committee Note on the rule should be expanded. Prof. Capra said that that would be unlikely to happen because some members of the Advisory Committee do not like detailed notes (or any notes in general), believing that notes should simply read, “The Rule speaks for itself.” The consensus was it would be premature to vote or take a position on any proposal.

B.  Rule 410, Inadmissibility of Pleas, Plea Discussions, and Related Statements.

Prof. David Leonard submitted a memo to the Committee on issues raised by FRE 410. Prof. Leonard discussed how United States v. Mezzanatto, 513 U.S. 196 (1995), and its progeny have affected application of the rule. Prof. Leonard concluded by proposing an amendment to Rule 410 (1) and (2) to forbid waiver of the right not to have a withdrawn guilty plea or a plea of nolo contendere used against the defendant. Prof. Capra stated that while the proposal is interesting idea, he believed that the Justice Department and the judges on the Advisory Committee would oppose any amendment with regard to FRE 410(1) & (2). Prof. Capra did feel, however, that a proposal to clarify FRE 410 (4) might be interest because of differences in interpreting the scope of Mezzanatto in the lower courts. If the accused gives a valid waiver, should the prosecutor be limited to using statements made by the accused in the course of pleas discussions only to impeach if the accused makes contradictory statements at trial, or, more broadly, as substantive evidence? It was decided to revisit this proposal via List Serve or at the next meeting.

C.  Rule 804(b)(6), Forfeiture by Wrongdoing.

FRE 804(b)(6) states: “A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” An important issue is whether the defendant’s wrongdoing that resulted in the unavailability of the witness should be the result of an intent or purpose to make the witness unavailable or may the unavailability of the witness merely be the consequence of the defendant’s intentional wrongdoing? Prof. Friedman submitted a memo to the Committee, which explained the relationship between forfeiture under the Confrontation Clause and forfeiture under this rule and discussed several issues raised by their relationship. Courts have tended to adopt a broader approach to forfeiture than the rule implies. It was suggested that there should not be an intent requirement with regard to rendering the witness unavailable. It was suggested that the Supreme Court case of Giles v. California, 152 P.3d 433 (2007), cert. granted, 128 S.Ct. 976 (2008), may result in a change in the forfeiture doctrine. Prof. Friedman felt that the State will likely win and that the Supreme Court will recognize that intent is not necessary, at least in a murder case. It was also suggested that, perhaps, there is a duty by the State to make a good-faith effort to protect the witness and to take reasonable steps to ensure they are available for testimony at trial before the exception can be invoked. There was also a brief discussion regarding whether there is a humane way to allow the defense to depose a lingering witness or victim. The general consensus of attendees at the meeting was that our Committee should wait and see how this area of the law develops before moving forward on any proposal.

II.  Federal Rules of Criminal Procedure

Professor Sara Beale of Duke University, reporter for the Advisory Committee on the Federal Rules of Criminal Procedure, U.S. Judicial Conference, reviewed issues pending before the Advisory Committee. She first discussed the amendments to the FRCrP that incorporate provisions of the Crime Victims Rights Act (CVRA) enacted in October, 2004. The process of drafting and adopting the CVRA amendments began soon after it was passed and represents a much discussed and considered effort by the Advisory Committee. The first package of amendments has been passed by the Judicial Conference and is ready for presentation to the Supreme Court. However, there has been enough debate about these amendments that Prof. Beale stated that it isn’t guaranteed that they will be adopted. However, Prof. Beale thinks that this first package of amendments, recognizing congressional interest in victims’ rights, will incorporate key aspects of the CVRA into the FRCrP and will provide the courts with guidance on how to interpret the CVRA. For example, the amendment to Rule 17, Subpoena, is derived from the Elizabeth Smart case. Her family had no opportunity to quash defense subpoenas that were “mucking around” in her personal life. Therefore, the new rule requires that the court must order the requested subpoena and that the victim must be given notice of it and the opportunity to contest it.

Professor Beale also discussed the ongoing Time Computation Project. The Project will result in a major change of how days are counted in the rules for various deadlines. As a result of the Project, all days of the week, including weekends and holidays, will be counted. However, the changes will ultimately be outcome neutral. For example, all rules that said 10 days will be changed to 14, so that by changing the amount to a multiple of 7, it is roughly the same amount of time currently available. The project will also institute changes that will instruct when to start counting days. Prof. Beale said that the Advisory Committee wants to hear what people think about this and would be delighted to have comments.

Other proposed amendments of the FRCrP that have been published for comment are as follows:

·  The proposed amendment to Rule 7 deletes as unnecessary subdivision (c)(2), which is more appropriately set forth in Rule 32.2.

·  The proposed amendment to Rule 32 requires the government to state in the pre-sentence report whether it seeks forfeiture under Rule 32.2.

·  The proposed amendments to Rule 32.2 clarify procedures applicable when the government seeks forfeiture of property as part of a defendant’s sentence.

·  The proposed amendment to Rule 41 clarifies that the warrant provisions apply to the search of electronically stored information.

·  The proposed amendments to Rule 11 of the Rules Governing Procedure under §§2254 and 2255 make the requirements concerning certificates of appealability more prominent by adding and consolidating them in the pertinent Rule 11. The amended rules also require the district court to grant or deny the certificate at the time a final order is issued.

There were no objections voiced to these amendments.

III.  Police Practices

Two proposed resolutions relating to Police Practices were considered:

A.  Resolution on Police Racial Profiling

Professor David Harris discussed a proposal to update and strengthen the ABA policy on police racial profiling. The proposal recommends that legislation either at the Federal or state level should include the following components: (1) ban racial profiling as defined in the proposal; (2) require police departments to have policies, training, and supervision necessary to implement the ban and supply funding necessary for these purposes; (3) data collection, as described in the ABA’s 1999 resolution on racial profiling, of all stops and searches, whether of drivers and their vehicles or pedestrians; (4) analysis and publication of both the data and the analysis, preferably by an independent agency; and (5) funding for police agencies should be made contingent on compliance with these requirements.

The proposal was unanimously approved, subject to forming a subcommittee to obtain input from other Criminal Justice Section committees and to make appropriate changes to the resolution and report consistent with the Committee’s approval of the resolution and draft report. The subcommittee will consist of Judge Arthur Burnett and Professors David Harris, Myrna Raeder and Andrew Taslitz, subject to Professor’s Taslitz consent to serve. A benefit of the subcommittee is to obtain feedback before submitting the resolution to the ABA Criminal Justice Section Council for consideration at their spring meeting, April 5, 2008.

B. Resolution of Use of Cross-Racial Jury Instructions in Selected Cases

The Committee ended the meeting with a discussion of Prof. David Aaronson’s proposal for Cross-Racial Jury Instruction for use in selected criminal cases. The Committee passed the following resolution with an attached report:

RESOLVED, that Federal and state trial judges should consider giving a cross-racial identification jury instruction in certain situations to guard against the heightened risk of misidentification and wrongful conviction. The risk is highest when identification of the defendant is a crucial issue, little or no evidence has been presented corroborating the eyewitness identification and the circumstances raise doubts about the reliability of the identification. This instruction should be in addition to a general instruction on relevant factors in evaluating the credibility of eyewitness identification(s).

The Committee recommends that the following proposed model jury instruction on cross-racial identification be considered as an example.

In this case, the defendant, ______(insert name), is of a different race than ______(insert name of identifying witness), the witness who has identified [him] [her]. You may consider, if you think it is appropriate to do so, whether the fact that the defendant is of a different race than the witness has affected the accuracy of the witness’ original perception or the accuracy of a later identification. You should consider that in ordinary human experience, some people may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.

You may also consider whether there are other factors present in this case which overcome any such difficulty of identification. [For example, you may conclude that the witness had sufficient contacts with members of the defendant’s race that [he][she] would not have greater difficulty in making a reliable identification.]