Conferring With Your Client During Deposition
How many times have you seen a deposition stopped so the deponent could get a drink of water or use the restroom (wink, wink- speak with their attorney)? The article linked below digs up and breaks down a number of opinions which have explored this issue, including one from Nevada- In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D. Nev. 1998). Turns out there’s an interesting bit of caselaw out there on this issue. Here it is:
Depositions- when can you speak to your own client?
I’m guessing most attorneys have never stopped to consider this issue. Most attorneys have the decency not to do so while a question is pending, but most would never think twice about confering with their own client during a break.
DUI And The Sixth Amendment: Lab Scientist Who Signed Report Must Testify, Not Colleague.
The Sixth Amendment’s Confrontation Clause gives the accused in all criminal prosecutions, the right, to be confronted with the witnesses against him.
For anyone practicing in the area of DUI and drunk driving, the United States Supreme Court in Bullcoming v. New Mexico, (Slip opinion, June 2011), addressed the issue of “whether the Confrontation Clause permits the prosecution to introduce a forensic laboratory report containing a testimonial certification- made for the purposes of proving a particular fact- through the in-court testimony of a scientist who did not sign the certification or perform or observe the test reported in the certification.” But the reasoning of Bullcoming has application well beyond DUI and drunk driving cases- and is relevant to any case where the state seeks to admit the certified findings of an expert or scientist through the surrogate testimony of another scientist who did not actually perform the test, and did not observe the test.
The Bullcoming court held that “surrogate testimony of that order does not meet the constitutional requirement.” “The accused’s right is to be confronted with the analyst who made the certification, unless that analyst is unavailable at trial, and the accused had an opportunity, pretrial, to cross-examine that particular scientist.”
In Bullcoming, defendant’s blood was drawn following a drunk driving arrest and was tested to have a blood alcohol concentration of .21 by lab scientist Curtis Caylor, who also signed the lab report stating as much. On the day of trial the state announced that it would not be calling Curtic Caylor who was recently put on unpaid leave for unspecified reasons. Instead the state sought to admit Caylor’s certification report as a business record exception to hearsay through the testimony of a colleague (another scientist who worked with Caylor) but who had neither observed nor reviewed Caylor’s analysis.
The court reiterated, “The Sixth Amendment’s Confrontation Clause confers upon the accused ‘in all criminal prosecutions, …the right…to be confronted with the witnesses against him.’” An analyst’s certification prepared in connection with a criminal investigation or prosecution, the Court held, is “testimonial,” and therefore within the compass of the Confrontation Clause. Citing United States v. Gonzalez-Lopez, 548 U.S. 140, 145 (2006), the Bullcoming court stated, “if a particular guarantee of the Sixth Amendment is violated, no substitute procedure can cure the violation, and no additional showing of prejudice is required to make the violation complete. “If (as in U.S. v. Gonzalez-Lopez) representation by substitute counsel does not satisfy the Sixth Amendment, neither does the opportunity to confront a substitute witness.
Fifth Amendment Invocation Inadmissible
In Vipperman v. State, 96 Nev. 592 (1980), the Court held that in light of United States v. Hale, 422 U.S. 171 (1975), it was reversible error for the district attorney to repeatedly make reference to Defendant’s post-arrest silence in failing to reveal his alibi to the police.
Defendant was arrested at the scene and given a full Miranda warning and chose (wisely) to remain silent. At trial, Defendant testified in his own defense and was asked repeatedly by the district attorney to explain why he had remained silent at the time of arrest instead of revealing his alibi to police.
The Vipperman court noted, “No less than six times did the prosecution press Defendant to explain his post-arrest silence, knowing full well that under the Miranda rule he had been told by the police officers that he had a right to remain silent.” Although Nevada case law states that, “[M]ere passing reference to silence…does not mandate automatic reversal” (See Shepp v. State, 87 Nev. 179, 181 (1971), in Vipperman there was more that “mere passing reference.”
The court held, “due process prohibits any inference to be drawn from the exercise of one’s constitutional right to remain silent after arrest.”
Requisite Proof To Enhance A Third Domestic Violence Charge To A Felony
In Hobbs v. State, 127 Nev., Adv. Op. 18 (2011), the State failed to present the necessary proof to convict Hobbs of a felony battery domestic violence. Nevada’s domestic battery statute, NRS 200.485, provides that a defendant’s third domestic violence battery conviction within seven years must be enhanced to a felony.
If the State seeks to use prior misdemeanor convictions to enhance a current offense to a felony, it must also make an affirmative showing of the constitutional validity of the prior convictions. This includes demonstrating either that counsel was present during the prior misdemeanor proceedings or that the right to counsel was validly waived, and that the spirit of constitutional principles was respected in the prior misdemeanor proceedings.
In Hobbs, the State’s complaint alleged that Hobbs had two prior domestic battery misdemeanor convictions. The State then presented evidence of the same at the preliminary hearing. Once the case was bound over to the district court, the State did not present evidence of the prior misdemeanor convictions, nor did it demonstrate the constitutional validity of the misdemeanor offenses. In particular, at sentencing, the record was devoid of any mention whatsoever of the prior misdemeanor convictions, either by the district court or the State.
The Hobbs’ Court held that, “even though the prior offenses were presented to the justice court, its role was limited and confined to a probable cause determination.” The Court went on to state that consideration of the constitutional validity of the convictions is not even for the justice court to determine. “[M]ere transmission of the exhibits used at the preliminary hearing from the justice court to the district court was insufficient.”
Act of Production Privilege Revisited
In order to invoke the Fifth Amendment protection, the party seeking to invoke the protection bears the burden of demonstrating that a compelled communication is testimonial. The Supreme Court held that in order to be considered testimonial, a “communication must itself, explicitly or implicitly, relate a factual assertion or disclose information” that expresses “the contents of an indvidual’s mind.” See Doe v. United States, 487 U.S. 201, 210, n. 9 (1988).
As applied to the production of documents, those prepared voluntarily are not protected by the Fifth Amendment unless the act of producing said documents is ‘testimonial and incriminating, because the “act of production” may convey information as to the existence, authenticity and possession of evidence. See Fisher v. U.S., 425 U.S. 391, 410 (1976), and U.S. v. Hubbell, 530 U.S. 27, 36 (2000)
In U.S. v. Doe, 465 U.S. 605, 612-14 (1984), the act of producing voluntary prepared papers was held protected by the Fifth Amendment because the act would necessarily admit existence, defendant’s control, and authenticity of documents.
Nevada Clarifies Statutory Procedure For Determining Defendant Mentally Retarded
If you intend to argue that your client is of insufficient mental intelligence in order to avoid the death penalty, Nevada requires proof from before the defendant turned 18, which demonstrates by a preponderance of the evidence that he or she suffered from “significant subaverage intellectual functioning and adaptive behavior deficits.”
In Ybarra v. State (March 3, 2011), the Nevada Supreme Court set out to define the parameters of “developmental period” within the meaning of NRS 179.098(7) which sets forth the procedure for determining if a Defendant is deemed mentally retarded.
In short, it concluded that defendant “failed to prove by a preponderance of the evidence that he suffered from significant subaverage intellectual functioning and adaptive behavior deficits during the developmental period, which extends to 18 years of age.”
Here’s the Court’s introductory analysis:
Although the United States Supreme Court has held that the execution of mentally retarded individuals violates the Eighth Amendment’s prohibition against cruel and unusual punishment, Atkins v. Virginia, 536 U.S. 302, 321 (2002), the Court did not prescribe a definition of mental retardation or procedures for determining when an individual is mentally retarded.
Instead, the Court left “‘to the State[s] the task of developing appropriate ways to enforce [this] constitutional restriction upon . . . execution[s],’” id. at 317 (first, third, and fourth alterations in original) (quoting Ford v. Wainwright, 477 U.S. 399, 416-17 (1986)). The Nevada Legislature accomplished that task with the passage of NRS 174.098, which sets forth the procedure for raising mental retardation in a capital case and defines “mentally retarded.” The statute provides that upon motion by a defendant,[3] the district court must conduct an evidentiary hearing to determine whether the defendant is mentally retarded. NRS 174.098(1), (2); see also NRS 175.554(5). The defendant bears the burden of proving by a preponderance of the evidence that he is “mentally retarded,” NRS 174.098(5)(b), which the Legislature defines as “significant subaverage general intellectual functioning which exists concurrently with deficits in adaptive behavior and manifested during the developmental period,” NRS 174.098(7). This court has not yet had occasion to address the statutory definition of mentally retarded. We take this opportunity to do so.
Public Safety Exception To Fifth Amendment
In Lamb v. State (March 3, 2011), the Nevada Supreme Court ruled, among other things, that Defendant’s statement to police that he had “a revolver” was properly admitted over objection that it violated Miranda v. Arizona, 384 U.S. 436, 467-68 (1966).
The court stated, “Lamb’s motion to suppress sought to exclude his statement to the police that “I have a revolver but I found it” as the product of custodial interrogation not preceded by the warnings required by Miranda v. Arizona, 384 U.S. 436, 467-68 (1966). The district court agreed that the statement was unwarned and resulted from custodial interrogation. However, it held that Miranda did not require its exclusion because the “public safety” exception recognized in New York v. Quarles, 467 U.S. 649, 657-60 & n.9 (1984), applied. Although this court has not previously addressed Quarles in a published opinion, we agree.”
“The “public safety” exception permits police officers to “ask a suspect questions without first giving Miranda warnings if they reasonably believe it is ‘necessary to secure their own safety or the safety of the public.’” United States v. Are, 590 F.3d 499, 505 (7th Cir. 2009) (quoting Quarles, 467 U.S. at 659), cert. denied, 562 U.S. ___, 131 S. Ct. 73 (2010).”
“Here, the officers knew that Lamb was a suspect in a homicide involving a gun. They had not secured his apartment or his car, did not know if his apartment was accessible to others, and did not know if he had an accomplice inside the apartment or on the grounds. He walked out with a large black trash bag and carried it through the apartment complex’s public areas. Before he emerged, the officers were waiting on a warrant and had been preparing to enter his apartment, either on a protective sweep or to execute the imminent warrant. According to the officers who testified at the suppression hearing, they asked Lamb about people, dogs, or weapons in the apartment out of concern for the safety of the officers about to go into the apartment and the safety of anyone inside. The district court accepted these concerns as objectively reasonable. It concluded that “the officers have a right for their own safety and the safety of possible other individuals to inquire as to very basic things [such] as who else is in [the] apartment, if anyone? Are there animals or weapons?” and that, under Quarles, the statement, “I have a revolver, but I found it,” was admissible, despite the lack of Miranda warnings.”
The solution is easier in theory than reality: Just don’t say anything.
Admissibility of Statements When Expert Witness Unavailable
Under Crawford v. Washington, 541 U.S. 36 (2004), the testimonial statement of an otherwise unavailable witness is inadmissible “unless the defendant had an opportunity to previously cross-examine the witness regarding the witness’s statement.” Medina v. State, 122 Nev. 346, 353, 143 P.3d 471, 476 (2006).
Recently, in Vega v. State, (126 Nev. Adv. Op. No. 33, August 12, 2010) the Nevada Supreme Court addressed the issue of whether the trial court committed plain error – violating Defendant’s Sixth Amendment right to confrontation – when, at trial, an expert witness (Dr. Mehta) was allowed to testify regarding the contents of an examination report previously conducted by a different expert (Suiter) who was unavailable at trial.
On appeal the court concluded that, “[t]o the extent that Dr. Mehta’s testimony admitted Suiter’s written report, including Suiter’s questions, the victim’s responses detailing the victim’s medical history and history of sexual abuse, and Suiter’s observations and findings without Suiter being subject to cross-examination, we conclude that this violated the Confrontation Clause, Crawford, and Melendez-Diaz.”
However, not all of Dr. Mehta’s testimony violated the Confrontation Clause. After reviewing the video recording and the diagram of the gynecological examination, Dr. Mehta offered her independent opinion as an expert witness that there was a “healed transection” on the victim’s hymen. The Supreme Court concluded, “Dr. Mehta’s independent opinion based on the diagram and video recording does not violate the Confrontation Clause, Crawford, or Melendez-Diaz because Dr. Mehta’s judgment, proficiency, and methodology were subject to cross-examination.”
The Court then turned its attention to the issue of whether this error was prejudicial and, therefore, affected Vega’s substantial rights. In short order the Court dispelled any finding of plain error. Regarding the portion of Dr. Mehta’s testimony that violates Crawford and Melendez-Diaz (Dr. Mehta recounted Suiter’s questions, the victim’s answers depicting the victim’s medical history and history of sexual abuse, and Suiter’s observations and findings), the Court reasoned that, “this testimony was duplicative of the victim’s detailed testimony describing the sexual abuse and consistent with Dr. Mehta’s independent opinion that the victim’s hymen had a “healed transection.” Furthermore, Dr. Mehta’s testimony does not implicate Vega as having caused the “healed transection,” and she acknowledged that objects other than a penis could have caused the injury. As such, we conclude that Dr. Mehta’s erroneously admitted testimony was inconsequential, and Vega has failed to demonstrate that the Crawford and Melendez-Diaz violation was prejudicial. Therefore, we conclude that the violation did not affect Vega’s substantial rights.”
Pretextual Vehicle Stops And Windshield Obstruction
The word “upon” in the context of statutes similar to NRS 484.619 has been decided to mean “that the object be on or in direct contact with the windshield-it does not prohibit items hanging from rearview mirrors.” See U.S. v. King, 244 F.3d 736, 740 (9th Cir. 2001). In King, the Ninth Circuit, interpreting the statutory meaning of the word “upon” (the windshield) of Anchorage Municipal Code[1] relating to windshield obstruction, held that “[t]he plain meaning of the statute requires that the object be on or in direct contact with the windshield-it does not prohibit items hanging from rearview mirrors.” U.S. v. King, 244 F.3d 736, 740 (9th Cir. 2001). Accordingly, the King court reversed the district court’s denial of defendant’s motion to suppress. Id. at 737.
NRS 484.619 is identical in its meaning and intent to the applicable Anchorage Code, set forth in FN 1, above, and interpreted by the court in King. The relevant and operative language of NRS 484.619 is nearly identical to Anchorage Municipal Code Sec. 9.36.040(D). As such, the word “upon” in NRS 484.619 means ‘upon the windshield’ and not on the rearview mirror. Any other interpretation, in light of King, would be inconsistent with the Ninth Circuit’s reasoning.
Based on the foregoing reasoning, when a police officer makes a mistake of law regarding NRS 484.619, it precludes a finding of reasonable suspicion for said stop. As explained in King, “a belief based on a mistaken understanding of the law cannot constitute a constitutional traffic stop.” King, 244 F.3d at 739, citing U.S. v. Twilley, 222 F.3d 1092, 1096 (9th Cir. 2000). Accordingly, in the case where an officer stops a vehicle under NRS 484.619 for a placard or similar item hanging from the rearview mirror, the stopping of Defendant constitutes an unlawful seizure in violation of the Fourth Amendment.
[1] Anchorage Municipal Code Sec. 9.36.040(D) provided, “No person may drive any motor vehicle with any sign, poster, nontransparent material or an accumulation of snow, ice or frost upon the front windshield, side wings, or side or rear windows of such vehicle which materially obstructs, obscures or impairs the driver’s clear view of the street or any intersecting street.” See U.S. v. King, 244 F.3d 736, 739-40 (9th Cir. 2001).
Expert Testimony, Hallmark v. Eldridge Revisited
In Higgs v. State, 126 Nev. Adv. Op. 1 (2010), the Nevada Supreme Court revisited the issue of admissibility of expert testimony and clarified an inconsistency (real or perceived) in its prior ruling on the topic: Hallmark v. Eldridge, 189 P.3d 646 (Nev. 2008).
A couple of things are clear after Higgs:
1. Nevada only looks to Daubert and its factors for guidance, not strict adherence; and
2. And I quote, “NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis.”
In Higgs, the court explained,
[I]n Hallmark, we stated that Daubert and federal court decisions discussing it “may provide persuasive authority.” Hallmark, 124 Nev. at ___, 189 P.3d at 650. We did not, however, and do not today, adopt the Daubert standard as a limitation on the factors that a trial judge in Nevada may consider. We expressly reject the notion that our decision in Hallmark inferentially adopted Daubert or signaled an intent by this court to do so.
A close reading of Hallmark is helpful. This court concluded that the district court abused its discretion in allowing the expert testimony of a biochemical engineer. 124 Nev. at ___, 189 P.3d at 652. In so doing, we summarized Nevada’s jurisprudence regarding expert witness testimony pursuant to NRS 50.275. 124 Nev. at ___, 189 P.3d at 650-52. We identified the three overarching requirements for admissibility of expert witness testimony pursuant to NRS 50.275 as (1) qualification, (2) assistance, and (3) limited scope requirements. 124 Nev. at ___, 189 P.3d at 650. This court then identified factors to be considered under each requirement. 124 Nev. at ___, 189 P.3d at 650-52. We were careful to note that the list of factors was not exhaustive, and we recognized that every factor may not be applicable in every case and would likely be accorded varying weight from case to case. Id. at ___, 189 P.3d at 651-52. It is worth noting that we supported our conclusion by citing to Nevada cases, not federal.
Consider the differences between NRS 50.275 and FRE 702. NRS 50.275 states:
If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by special knowledge, skill, experience, training or education may testify to matters within the scope of such knowledge.
FRE 702 contains similar language, but with additional conditions, which were added in response to the Daubert trilogy (Daubert, Joiner, and Kumho):
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Whereas the federal rule mandates three additional conditions that trial judges should consider in evaluating expert witness testimony, the Nevada statute mandates no such requirements. Rather, NRS 50.275 provides general guidance and allows the trial judge discretion in deciding what factors are to be considered on a case-by-case basis. In Hallmark, we outlined some factors that are useful in this inquiry, but repeatedly noted that the factors enumerated “may not be equally applicable in every case.” 124 Nev. at ___, 189 P.3d at 651, 652. We determine that the benefit of our approach is twofold: first, it gives judges wide discretion to perform their gatekeeping duties; and, second, it creates an inquiry that is based more in legal, rather than scientific, principles.