Category Archives: Evidence

How NASCAR’s Efforts After Daytona Nationwide Crash Will Impact Litigation

On February 23, at least 28 spectators were injured after a crash during a Nationwide Series race at Daytona International Speedway sent debris flying into the crowd.  Since the crash, NASCAR has reportedly begun investigating what mechanisms led to the crash and subsequent spectator injuries.  To do this, NASCAR is not only working to reconstruct driver Kyle Larson’s car, but is also working with fencing experts to determine how the track’s fencing may have played a role in the number of fans injured.

Hearing that NASCAR is taking these measures may have caused the injured spectators’ ears to perk up.  Reports indicate that numerous injured spectators have consulted with lawyers over the possibility of suing NASCAR for the injuries they sustained.  These individuals may believe that subsequent measures taken by NASCAR to improve the fencing around Daytona International Speedway may bolster any case they have against racing’s governing body.  However, such is not the case.

Given the amount in damages that potential litigants will likely demand against NASCAR, it is likely that a lawsuit would be filed in federal court.  Thus, the federal rules of evidence would apply.  The rule at issue here is Rule 407:  Subsequent Remedial Measures.  Notably, Florida’s state rules of evidence has a similar rule, Florida Statute § 90.407.

Rule 407 provides:

“When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: negligence; culpable conduct; a defect in a product or its design; or a need for a warning or instruction.  But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.”

In the case of potential lawsuits injured spectators may file against NASCAR, Rule 407 is notable.  Any lawsuit filed against injured spectators will more than likely include a claim of negligence.  This negligence claim will expectantly be based in part on an argument that not having higher fences at the racetrack was negligent on NASCAR’s part.  Should NASCAR in the coming days or months take the subsequent remedial measure of heightening the fences, potential plaintiffs could not use evidence of those measures to show that NASCAR was negligent in this instance.

From NASCAR’s perspective, the existence of Rule 407 is beneficial.  It is beneficial because NASCAR can make the necessary improvements to Daytona International Speedway in the wake of the crash without fearing that doing so will improve plaintiffs’ likelihood of success in litigation.  It is for this reason that Rule 407 exists.  However, as noted by the exception to Rule 407, plaintiffs will still likely raise any adjustments to Daytona International Speedway made by NASCAR in the wake of the accident during the course of litigation.  Most likely, plaintiffs will raise evidence of any subsequent remedial measures to negate any argument that such measures were impossible to complete.

Analysis of this small issue goes to show the battle that NASCAR stands to fight after the February 23 crash.  Not only must it evaluate the cause of the crash and research measures that could better protect fans, it must consider how those measures may impact its looming court case.  Thus, it’s safe to say that NASCAR’s lawyers will be putting in heavy hours in the coming months.

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What The Emails Acquired By CNN Mean To The Case Against Penn State Officials

Recently, CNN a published a story detailing emails it obtained access to which allegedly were sent between Penn State President Graham Spanier, former Penn State Athletic Director Tim Curley and former Penn State Senior Vice President for Business and Financing Gary Schultz.  CNN notes that it does not have the emails in its possession, but that their contents were made available to CNN.  Thus, because CNN does not have the emails in its possession, there is always the possibility that the contents made available to CNN do not fully depict the conversations alleged to have occurred between Spanier, Curley, and Schultz in the wake of Mike McQueary telling Joe Paterno about an incident with Jerry Sandusky and a child in a shower on campus.

However, if CNN’s report fully and accurately describes the conversations between Spanier, Curley and Schultz regarding their response to being told about Sandusky’s inappropriate sexual contact with a child in a Penn State shower, then the prosecution’s case against Curley and Schultz may be sealed.  Both Curley and Schultz were also charged as a result of the investigation into Jerry Sandusky.  Each man is charged with one count of perjury stemming from them denying to the grand jury knowing about the incident originally reported by Mike McQueary.  In Pennsylvania, perjury is a third-degree felony that is punishable by 7 years in prison and a $15,000.00 fine.  Additionally, they are both charged with one count of failing to report suspected child abuse, which is a summary offense punishable by 90 days in prison and a $200.00 fine.

The alleged emails reported upon by CNN signal trouble for each man’s defense.  First, the alleged emails depict that the men had knowledge of the allegations raised by McQueary.  If the emails are accurate and a complete depiction of the conversations between the men, then it will likely be hard for their defense to argue against a perjury charge brought for the men asserting in grand jury testimony that they did not know of the allegations brought by McQueary.

Additionally, if the emails reported upon by CNN are accurate, it appears that the men had knowledge of some sort of misconduct on Sandusky’s part.  They also make mention of contacting the Department of Child Welfare.  This statement indicates the possibility that the men knew of their legal duty to report to allegations raised by McQueary to the Department of Child Welfare.  However, nothing in the emails reported upon by CNN specifically indicates that the men knew of the sexual nature of Sandusky’s contact with the child in the Penn State shower.  Therefore, the defense could argue that the men did not believe that their legal duty to report the suspected child abuse was triggered.  Yet, because reference was made to contacting the Department of Child Welfare, the prosecution will likely rebut that argument by saying that once the story of suspected child abuse was brought to them by Paterno, they had a legal duty to report it to authorities.

The emails obtained by CNN may be the prosecution’s best evidence in its case against Curley and Schultz.  However, the prosecution will face legal hurdles in providing the emails as evidence during the two men’s trials.  Notably, the defense will object to the emails’ admission into evidence as trial by arguing that the emails constitute “hearsay evidence.”  In a court of law, hearsay evidence is inadmissible unless a hearsay exception exists.  Arguably, the emails would fall under the business records exception to the hearsay rule.  Under the business records exception, any writing or record made as a memorandum of any act or transaction is admissible as proof of that act or transaction.  Here, it was arguably the ordinary course of business for Curley, Schultz and Spanier to communicate about how to punish or deal with an athletics department employee that violated the department’s policies and procedures.  The emails obtained by CNN were made near the time of the event when the allegations concerning Sandusky were made to the three men.  Thus, the prosecution will argue that it can enter the emails into evidence.  However, they will likely face stringent objections from the defense in doing so.  The defense will likely argue that emails concerning alleged sexual abuse against an athletics department employee fall outside of the ordinary course of business, and as such, constitute hearsay.

Overall, it appears that the emails obtained by CNN will greatly benefit the prosecution’s case against Schultz and Curley.  However, again, it is important to remember that what was reported upon likely only represents a snippet of the conversations which allegedly occurred between the men.  Thus, there is the possibility that the defense continues to be built in this case.  Nonetheless, given the jury’s finding of guilty on 45 of the 48 counts against Sandusky, Schultz and Curley may benefit from taking a plea deal in this case.  This is due to the fact that with the outcome of the Sandusky trial, it was made apparent that the jurors of Centre County Pennsylvania take these allegations and charges very seriously and are willing to bring guilty verdicts.

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Second Swing: Roger Clemens’ Re-Trial

Nine months ago, after the prosecution had only put two witnesses on the stand, the judge in the case against former MLB pitcher Roger Clemens, declared a mistrial.  This mistrial stemmed from a procedural error committed by the prosecution, who showed a video referencing testimony by Andy Pettitte’s wife, which was previously ruled inadmissible.

Today marks the start of the prosecution’s second trial against Clemens.  Clemens faces six charges:  one count of obstruction of Congress, three counts of false statements and two counts of perjury.  While nine months is not an eternity, much has happened over the last nine months which may affect the outcome of Clemens’ trial.

First and foremost, the prosecution has arguably been given a procedural advantage in being able to try the case for a second time.  Although the prosecution was only able to present two witnesses in its first go-around at trying Clemens before a mistrial was declared, it arguably obtained a sense of the strength of its case in presenting those two witnesses.  While Judge Walton commented that not even a first year law student would make the procedural error that the prosecution made in the first trial, it appears that the prosecution refuses to make such an error in the second trial.  This is demonstrated by the fact that the prosecution has added three additional lawyers to its case.  Arguably, these lawyers will serve to protect against procedural errors, while also providing more detailed analysis and investigation into the case.

Additionally, because the prosecution was allowed to retry the case, it was essentially given an additional nine months to build its case.  During this time, it was allowed and able to conduct additional interviews with witnesses and re-examine evidence.  While this may seem unimportant, one of the greatest gifts a trial lawyer can be given, is time.  Trials take an extensive amount of time to prepare.  Under the pressure of presenting a trial and upholding a defendant’s constitutional right to a speedy trial, sometimes sacrifices must be made in fully developing a case.  Thus, when an additional nine months is granted to prepare for a trial, it can greatly benefit the prosecution.

While there are definitely some factors that favor the prosecution going forward with the second trial against Clemens, the defense also has some windfalls in the second trial.

First and foremost is the fact that jurors may be largely displeased by the fact that the government is retrying the case against Clemens, which some believe should not have even been tried in the first place.  Recently, a report surfaced indicating that jurors approached Judge Walton after the first trial to indicate that they believed trying Clemens the first time was a waste of taxpayer money.  Given this belief by some jurors, along with the fact that the prosecution caused a mistrial in the first trial after only two witnesses had been presented, the defense could gain the favor of the jury if it presents a compelling argument as to why prosecuting Clemens is a waste of taxpayer money.  This argument will likely play out better this time around, as now, Clemens is being tried in a presidential election year.  If Clemens’ legal team can tap into the political climate and the jury’s economic sentiments to make them feel that there are bigger issues for the government to be concerned with than whether a retired baseball player lied to Congress six years ago, any arguments made by the prosecution may be nullified in the jury’s mind.

The next big windfall the defense has received over the last nine months centers around another big MLB storyline.  Since Clemens’ mistrial in July 2011, Ryan Braun became the first MLB player to have a suspension for alleged performance enhancing drug use overturned.  A three-person panel overturned Braun’s suspension in February after it found problems with the chain-of-custody of his urine sample.

In Clemens’ first trial, it was expected that his defense would largely question the chain-of-custody of some of the prosecution’s physical evidence.  Reportedly, the prosecution’s physical evidence includes syringes that Clemens’ former trainer alleges that he used to shoot Clemens with performance enhancing drugs.  If these syringes are in fact those that were used to allegedly shoot Clemens with performance enhancing drugs, that means that Clemens’ former trainer held onto the syringes for a period of years.  The former trainer reportedly kept the syringes in a soda can and a FedEx box.

Given the expansive reporting of Braun’s successful appeal based upon a chain-of-custody theory, the possibility that evidence can be tainted if it is not properly handled is at the forefront of the public’s mind now more so than it was in July 2011.  Thus, Clemens’ legal team will likely parlay Braun’s success using this theory into Clemens’ case.  As such, expect significant cross-examination of Clemens’ former trainer into why he saved the syringes, how he handled them and the possibility that others may have had access to them over the years.

Ultimately, both sides have more to lose than gain at the end of this trial.  If the prosecution fails to prove its case, the American public will cry foul over the extensive amount of money the government spent to unsuccessfully prosecute a former MLB twice.  If Clemens loses, he will likely face a jail sentence.  Yet, even if he wins, his image has arguably already been tarnished in the public’s eye.

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Death of a Witness: Is the Case Against Giants Fan’s Alleged Attackers Hurt?

A wrench has been thrown in the case brought by the Los Angeles County District Attorney against two individuals charged with the brutal beating of San Francisco Giants fan, Bryan Stow, outside of Dodgers Stadium on Opening Day.

Louie Sanchez and Marvin Norwood face “. . . one count each of mayhem, assault by means likely to produce great bodily injury, and battery with serious bodily injury.”

On July 31, 2011, Matthew Lee, a man identified by sources close to the case as being an “important witness,” died.  Reports indicate that Lee and Stow attended the Opening Day game between the San Francisco Giants and Los Angeles Dodgers together.  Early reports indicate that Lee died as a result of an allergic reaction to nuts, although a cause of death has not been declared by the coroner’s office.

Although reports indicate that eyewitness and physical evidence exists other than that which could have been provided by Lee at trial, it remains to be determined how critical of a role Lee’s testimony would have served in the upcoming proceedings against Sanchez and Norwood.

It is likely that prior to Lee’s death, he provided statements to the Los Angeles Police Department and the District Attorney’s office.  Lee also likely made statements which were heard by others while witnessing the beating of Stow (if in fact, Lee witnessed the beating of Stow).

Will this testimony be admissible in court proceedings?

The hearings in this matter against Sanchez and Norwood are being held in Los Angeles Superior Court.  Thus, the California Rules of Evidence apply to testimony and evidence presented at these hearings.

Any statement which the District Attorney wishes to present regarding statements made by Lee would be considered hearsay evidence.  Section 1200 of the California Evidence Code, known as the “Hearsay Rule,” defines “hearsay evidence” as “. . . evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated.”

Because Lee is now deceased, any statement made by him which is presented as evidence in a hearing against Sanchez and Norwood, would be one other than a statement made by Lee while testifying at the hearing.  Any statement made by Lee and presented by the District Attorney’s office would likely be offered to prove the truth of the matter asserted–namely, that Sanchez and Norwood committed the offenses for which they are charged.

Under Section 1200 of the California Evidence Code, hearsay evidence is inadmissible.

However, the California Evidence Code provides several exceptions to the hearsay rule, which may allow for the admission of previous statements made by Lee which would be offered by the Prosecution to prove that Sanchez and Norwood committed the crimes they are charged with against Stow.

1.  California Evidence Code Section 1240:  Spontaneous Statement

Section 1240 of the California Evidence Code allows for the admission of hearsay evidence if the statement is considered a “spontaneous statement,” meaning that it “Purports to narrate, describe, or explain an act, condition, or event perceived by the declarant; and was made spontaneously while the declarant was under the stress of excitement caused by such perception.”

Given that Lee attended the Opening Day game with Stow, one can presume that Lee was present when Stow was beaten.  Thus, it is possible that witnesses may testify as to what they heard Lee say while witnessing the beating or shortly thereafter.  Arguably, the witnessing of a friend’s brutal beating would constitute a situation causing stressful excitement.  If Lee made a statement while witnessing the beating, or shortly thereafter, narrating, describing or explaining the beating, Stow’s injuries or other related items, such a statement would likely be admissible.

2.  California Evidence Code Section 1242:  Dying Declaration

Another exception to the Hearsay Rule is the “Dying Declaration” exception.  This exception provides that, “evidence of a statement made by a dying person respecting the cause and circumstances of his death is not made inadmissible by the hearsay rule if the statement was made upon his personal knowledge and under a sense of immediately impending death.”

Here, it appears that Lee died as a result of an allergic reaction.  Thus, because his death was not brought about as a result of the beating of Stow, the dying declaration exception would not allow for admission of hearsay testimony made by Lee in this case.

3.  California Evidence Code Section 1292:  Former Testimony Offered Against Person Not a Party to Former Proceeding

It is unclear whether Lee provided testimony to a grand jury in this case.  If Lee did provide testimony in a grand jury proceeding, would such testimony be admissible in future proceedings in this matter?

California Evidence Code Section 1290 defines “former testimony” in relevant part as, “testimony given under oath in. . . another action or in a former hearing or trial of the same action. . .”

California Evidence Code Section 1292 provides that evidence of former testimony is not inadmissible hearsay if the declarant is unavailable as a witness.

Here, Lee is unavailable, since he is deceased.

However, the next requirement of section 1292, is that the former testimony was offered in a civil action.  Here, any such testimony would not have arisen in a civil action, since the current matter is a criminal case.  Additionally, because any such testimony given by Lee, if any exists, would have been given at a grand jury hearing, section 1292 would not allow for its admission.  This is due to the fact that defendants are not given the right to cross-examine witnesses at grand jury hearings.  This right and opportunity is a requirement for section 1292 to apply.

Thus, section 1292 does not allow for the admission of former testimony by Lee in this matter.

4.  California Evidence Code Section 1350:  Admissibility of Statement in Serious Felony Prosecutions

Section 1350 of the California Evidence Code allows for the admission of hearsay statements in “serious felony prosecutions.”  Arguably, the present case would be considered a serious felony prosecution.

Section 1350 requires that the person who made the statement be “unavailable” as a witness.  Because Lee is dead, he is unavailable.

However, six other requirements must bet met in order for this exception to apply.  The first requirement, that “there is clear and convincing evidence that the declarant’s unavailability was knowingly caused by, aided by, or solicited by the party against whom the statement is offered for the purpose of preventing the arrest or prosecution of the party and is the result of the death by homicide or the kidnapping of the declarant,” renders this exception unusable by the Prosecution.  As noted above, it appears that Lee died as a result of an allergic reaction.  Unless evidence shows that this allergic action was caused by actions taken by the Defendants in an effort to cause the homicide of Lee, then this exception cannot be used.

Effect on the Prosecution’s Case

Thus, it appears that the only hearsay exception applicable in this situation is the “Spontaneous Statement” exception.  Therefore, only statements made by Lee constituting spontaneous statements may be admissible during future hearings in this matter.  This fact will possibly limit the Prosecution’s ability to present its case.  However, it is unclear how important of a role that the totality of Lee’s statements played in the development of the Prosecution’s case.  Thus, it is possible that the admissibility of only Lee’s spontaneous statements will not hurt the Prosecution in proving its case against Sanchez and Norwood.

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