August 8, 2012 Admission Rule

I have been the fortunate recipient of many delicious pieces of impeachment in my career as a defense lawyer. The latest was in John Goodman’s trial. The plaintiff’s lawyers provided the star witness with a free lawyer to control her, to influence her testimony and to keep us from interviewing her. The judge however seemed unconcerned that a witness was being provided tens of thousands of dollars of legal services. Maybe if they had given her the cash equivalent he might have gotten the idea. Oh well, it was for a good motive — to insure Goodman’s conviction. But sour grapes aside, back to the focus of today’s post which concerns a real juicy bit of impeachment.

In what the media calls the UCLA Lab Death Case, chemistry professor Patrick Harran and UCLA are charged with three counts of willfully violating occupational and safety standards in the death of Sheharbano Sheri Sangji. She suffered fatal burns when a lab experiment she was conducting burst into flames. She was working with a substance that was highly flammable when exposed to air. The synthetic sweater she was wearing, instead of a lab coat, caught fire and melted into her skin. It took her 18 days to die from the burns. The defense claims she was a seasoned chemist and she choose not to wear protective gear.

If that is all there was to the case it would be an interesting one, yet not particularly important. But the defense investigation uncovered a shocking revelation about the background of the state’s chief investigator Brian A. Baudendistel which takes it out of the ordinary run of cases. Baudendistel is a senior special investigator for the California Division of Occupational Safety and Health — one assumes a person with that job has been properly vetted.

The defense found articles disclosing at age 16, Baudendistel was convicted of first degree murder during a failed drug deal. He lured the victim from a bar to rob him of methamphetamine and killed him with a shotgun blast. The juvenile files were sealed but a defense investigator found news articles about the case. As if this wasn’t enough the story goes further.

The defense presented this information to the prosecutors and the court, but Baudendistel adamantly denied it was him for months despite the uniqueness of his name. Finally the prosecutors were pressured into doing a fingerprint comparison and it turned out to be him.

So what is the defense plan with this explosive impeachment material? They must know that there are serious impediments to using a juvenile conviction to impeach him if he testifies, but they might have an easier path using his many lies over the two months of denials.

However they don’t stop there. The defense moved to quash their client’s arrest warrant because Baudendistel’s affidavit failed to disclose his background which denied the issuing judge information needed to determine his credibility. Their point is that if the arrest warrant is quashed, the three-year statute of limitations would have lapsed. The trial judge has taken the motion under advisement. A clever tactic, but probably doomed to failure. But even if so, it is a clever tactic to get all this before the judge and spread it all in the record.

I love the predictable response of Baudendistel’s the agency. Cal/OSHA in a statement issued by spokesman Dean Fryer:”The defendants’ most recent attempt to deflect attention from the charges brought against them simply does not relate in any way to the circumstances of Ms. Sangji’s death or the actual evidence collected in Cal/OSHA’s comprehensive investigation.”

The reason I like this case is that it is another example that one can’t take things for granted. Who would think a senior law enforcement agent had been convicted of first degree murder and then would actively cover it up for months? Truth stranger than fiction. Once again proof we need to keep digging even in obscure holes.

So how can this be used at a trial? Under the federal rules of evidence, the defense would have two high hurdles to surmount. The rule provides a four-part test for use of a juvenile conviction.

Evidence of a juvenile adjudication is inadmissible unless:

1. The juvenile adjudication is introduced against a witness other than the accused;
2. The juvenile adjudication is introduced in a criminal case;
3. Conviction of the offense would be admissible to attack the credibility of an adult; and
4. The court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

The rules technically allow for the impeachment, but the case law is not favorable. Then once you pass this test then you have a second one.

Under FRE609(b), evidence of a conviction is inadmissible:

1. For a conviction in which more than ten years has elapsed since the later of the date of:
2. The conviction; or
3. The release of the witness from the confinement imposed for that conviction;
4. Unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect; and
5. The proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Note the special balancing tests FRE 609 uses. In 609(a)(1)(B) if the defendant testifies: “the probative value of this evidence outweighs its prejudicial effect…” And in 609(b) “its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.”

This is the exact opposite of FRE 403 which provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

In 609, probative must outweigh the prejudice while in 403, the prejudice must outweigh probative. These weighing tests are important distinctions to make in argument to a judge.

Another avenue of admissibility is the dishonestly and lies by the investigator in his numerous denials that it was him. This proves the man is a liar and should be allowed especially since it occurred in the case itself.

This is an exercise all trial lawyers should engage in. Question: How many different ways can you find to admit your evidence? Do you have a backup plan for the eventuality that the judge excludes your evidence on one evidentiary ground? For example, you are trying to admit a witness’ oral statement into evidence. First, you try to argue that it fits into one of these hearsay exceptions:

  •  A spontaneous statement;
  • An excited utterance;
  • A statement describing a then existing mental, emotional, or physical condition;
  • A statement for the purposes of medical diagnosis or treatment;
  • A statement against interest; or
  • A statement under belief of impending death.

Then perhaps if you can’t fit one of those, it might be non-hearsay, not coming in for its truth. Or for a limited purpose. Or a verbal act. The number of possible rules of admissibility are quite long. Go through them all. It doesn’t matter why the jury hears your evidence, only that they do!

Update: UCLA took the easy way out and took a plea last week. They agreed to update their safety rules and to create a $500,000 scholarship in Sangji’s name at the law school since she had been admitted there.