Evidence Practical Project Fall 2021

LAW 6330 (4 credits)
Section 02BB
Professor Pedro A. Malavet
Fall 2021

Instructions

As I announced in my Syllabus, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine based on the fact-pattern that follows. Students with last names starting with letters between ADA and MAL will write for the defense and those whose last names fall between MAN and ZAR will write for the prosecution, the United States.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2021 Evidence Course. Your motion must adequately advocate the interests of the party you represent, be it the defendant or the United States (the prosecuting authority in District of Columbia cases), and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement as well as in this problem (you are allowed to extend your research beyond these resources, but it is not required).

I have provided a basic form of motion that is available in the FILES section of the course CANVAS page. You may also use forms from externship or other job and clinical placements.

DUE DATE: Projects are due on or before NOON on Friday, 12 November 2021. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.

NOTE THAT I HAVE CHANGED THE DUE TIME TO NOON.

The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.

• Frequently Asked Questions
  • Is there a maximum length to the project?
    • No. You may write as much as wish.
  • Is there a minimum length?
  • There is certainly a minimal level of effort required to pass. But, at least five (5) to ten (10) pages, double-spaced, is about what it should take to do minimal justice to the project.
  • May and should I use headings and subheadings?
  • Yes. Preferably using the structure I post on the board every day.
  • What title should I use?
  • Motion in Limine To:
    • Admit [certain evidence], if you are the prosecution
    • Exclude [certain evidence], if you are the defense

Fact-Pattern:

John Brown v. United States

District of Columbia Superior Court

Judge: Danya A. Dayson, Deputy Presiding Judge, Criminal Division

This is a modified version of the examination essay question for the Spring of 2021. The critical differences are that you are at the trial level here and that your roles are as defense counsel and prosecutor, not as law clerks. Please read it with that in mind, even in case I may have missed some change from the original.

Background Facts and Law for the Motions

John Mr. Brown faces a jury trial on charges of first-degree premeditated murder while armed and related weapons offenses in the November 14, 2015 shooting death of Toshiro Sakai. The government’s theory at trial will be that Mr. Brown killed Mr. Sakai, his best friend, because he thought Mr. Sakai was cheating him out of his fair share of the proceeds of a drug dealing business the two men operated together.

The trial court held an evidentiary hearing to develop the facts for the parties to then move the court on whether or not the use of certain documentary evidence constitutes a violation of the hearsay rule or of the defendant's rights under the Confrontation Clause of the 6th Amendment and now provides the parties the following findings:

Mr. Brown has given notice that he will argue that he acted in self-defense, and is expected to testify that that he shot Mr. Sakai at close range only after Mr. Sakai rushed him and tried to wrestle away his gun in an argument over the money, which is what he told police investigators who took his initial witness statement discussed below.

At the evidentiary hearing, the government presented data obtained from two cell phones seized from Mr. Brown on the day after the shooting and the testimony of the Chief Medical Examiner about the results of an autopsy performed by one of his deputies. Police obtained the cell phone data pursuant to Superior Court search warrants that authorized a review of the entire contents of Mr. Brown’s phones; the data included records of internet search inquiries made by Mr. Brown in the days leading up to the homicide (“Are you capable of killing your best friend?” “How does it feel when you kill someone for the first time?” “Shot placement for instant kill?”) and would enable the government to paint a compelling picture of Mr. Brown’s premeditation and deliberation at trial. The Chief Medical Examiner’s testimony contradicted Mr. Brown’s claims about the way the shooting unfolded with detailed information about the gunshot wounds described in the autopsy report, including the absence of soot and stippling the government argued would have been observed at the site of the wounds had the shots been fired from within inches of Mr. Sakai’s body.

Mr. Brown moves to suppress the data obtained from his cell phones and to exclude the Chief Medical Examiner’s testimony about the results of the autopsy. Mr. Brown argues that the search warrants were overbroad, lacking in particularity, and almost entirely unsupported by probable cause and were thus issued in violation of the Warrant Clause of the Fourth Amendment. He argues that the testimony of the Chief Medical Examiner would convey testimonial hearsay statements of the deputy medical examiner who performed the autopsy and if thus presented to the jury in that form, that would be a violation of the Confrontation Clause of the Sixth Amendment.

Both constitutional claims implicate important and recurring aspects of the criminal process in the District of Columbia. Virtually everyone in the District now uses a cell phone —typically a modern smart phone capable of holding an extraordinary amount of personal information related to the user and/or owner of the device. Given the trove of information stored on many cell phones and the Supreme Court’s ruling in Riley v. California, 573 U.S. 373, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014), that police generally must obtain a search warrant before they may examine the contents of a cell phone, search warrant requests seeking access to cell phone data have become a common feature of law enforcement investigations in the District, with warrant applications presented to the Superior Court by police in large numbers. At the same time, turnover and other personnel challenges in the Office of the Chief Medical Examiner have, with some frequency, lead the government in homicide trials to offer testimony relating to the cause and manner of death from forensic pathologists who neither conducted nor attended the autopsies on which their testimony is based.

Although several of Court of Appeals decisions have addressed Confrontation Clause challenges to surrogate medical examiner testimony under the plain error standard, see, e.g., Sheffield v. United States, 111 A.3d 611, 623 (D.C. 2015); Euceda v. United States, 66 A.3d 994, 1012 (D.C. 2013), that court has not yet considered the constitutionality of such testimony on the merits and, in particular, to determine whether autopsy records created and maintained within the Office of the Chief Medical Examiner contain “testimonial” hearsay statements subject to the Confrontation Clause under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), and its progeny. See Sheffield, 111 A.3d at 623 (“[N]either this court nor the Supreme Court has decided whether autopsy reports are testimonial[.]”).

The Fourth Amendment Questions will not be addressed here.

[Although the opinion brought a smile a to my face when it cited Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), an eminently readable opinion, this is an evidence exam and you need not address the suppression questions at all.]

The Chief Medical Examiner’s Surrogate Expert Testimony

A. The Homicide Investigation and the Autopsy Performed by the Deputy Medical Examiner

A brief summary of the police investigation leading to the autopsy performed on Mr. Sakai’s remains is essential to our analysis under the Confrontation Clause.

A Metropolitan Police Department patrol officer was the first to respond to the 911 call from Mr. Brown’s mother on November 15, 2015. Five homicide detectives and four crime scene search officers followed soon thereafter, and all entered Apt. 23 at 2958 Second Street, S.E. and observed Mr. Sakai’s body on the living room floor. Bloodstains surrounded the body, and five spent cartridge casings and an unfired bullet were nearby.

A detective directed the crime scene search officers to collect and document evidence of the apparent homicide. The crime scene officers took photographs of the apartment and Mr. Sakai’s body, swabbed surfaces for DNA and fingerprints, and collected the cartridge casings and unfired bullet —all destined for forensic testing at the Department of Forensic Sciences. The detectives took witness statements from Mr. Brown, his mother, and his cousin.

Police promptly notified the Office of the Chief Medical Examiner (OCME) of the discovery of Mr. Sakai’s body. An OCME investigator went to the apartment and inspected Mr. Sakai’s remains, recording the way “the body was found on the scene, [the] injuries [on] the body, the level of rigor mortis; and the level of lividity, body temperature, [and] ambient temperature.” OCME officials later transported Mr. Sakai’s remains to OCME for an autopsy.

Dr. Merill C. Post, a deputy medical examiner at OCME, performed an autopsy on Mr. Sakai’s remains on November 16, 2015. To document the autopsy, Dr. Post made contemporaneous handwritten notes and diagrams memorializing his own observations and directed that photographs of the body be taken at each stage of the examination. Dr. Post subsequently prepared a formal autopsy report in which he detailed the condition in which the body was received at OCME; the procedures he followed in performing the autopsy; the physical evidence, including clothing and bullets, recovered during the examination; the location, dimensions, and path of each of four gunshot wounds suffered by Mr. Sakai; and the injuries and amount of blood loss associated with each of those wounds. Based on his findings, Dr. Post concluded in his report that the cause of death was multiple gunshot wounds and that the manner of death was homicide. All of these records of the autopsy were placed in an OCME file made specifically for the case.

One of the homicide detectives assigned to the investigation attended the autopsy. The detective was present throughout the examination and took possession of the clothing and bullets recovered during the procedure. Following the autopsy, the detective interviewed Dr. Post about his findings and conclusions.

By contrast, Dr. Michael Rodgers, the Chief Medical Examiner, did not attend any part of the autopsy or have any involvement in the examination. Dr. Rodgers did sign the autopsy report in February 2016 as a reviewing official, but he took no notes in the case, did not otherwise participate in the drafting or review of the report, and made no edits to it.

B. Mr. Brown’s Motion to Exclude the Chief Medical Examiner’s Surrogate Expert Testimony

The government notified Mr. Brown’s counsel a few weeks before trial that it intended to call Dr. Rodgers instead of Dr. Post to testify as an expert witness about the results of the autopsy. As government counsel later explained at the pretrial hearing, Dr. Post was no longer employed by OCME and was working in Florida by the time of the hearing. After speaking with Dr. Post and Dr. Rodgers , the government decided to call Dr. Rodgers , who was still employed by OCME as Chief Medical Examiner both for the pretrial hearing and, if allowed, would do the same at trial.

C. The Chief Medical Examiner’s Testimony

The government began by having Dr. Rodgers confirm he had reviewed the complete OCME file in the case, including the autopsy report, notes, and diagrams prepared by Dr. Post and the photographs taken during the examination. Government counsel then asked Dr. Rodgers to state the conclusions reached by Dr. Post at the time of the autopsy and to say for the record whether he agreed with them. Dr. Rodgers summarized Dr. Post’s principal conclusions from the autopsy report —that the cause of death was multiple gunshot wounds and the manner of death a homicide— and stated his full agreement with those conclusions.

The discussion then moved on to the four gunshot wounds suffered by Mr. Sakai. The government elicited from Dr. Rodgers that one of the diagrams drawn by Dr. Post during the autopsy accurately reflected the locations of the gunshot wounds shown in the photographs. The diagram, one of three appended to the autopsy report, showed the location of each entrance and exit wound on the front and back of Mr. Sakai’s body and included Dr. Post’s handwritten notes of measurements taken during the autopsy to memorialize the precise size and distance of each wound from the midline or other part of the body. Government counsel then gave Dr. Rodgers a blank sheet of paper and asked him to “more or less recreate” Dr. Post’s diagram as he testified. When Dr. Rodgers agreed to undertake the task, government counsel asked him if he needed to see the autopsy report as he re-drew Dr. Post’s diagram and answered questions about the gunshot wounds. Dr. Rodgers stated that, yes, he did need the autopsy report to be able to draw a copy of Dr. Post’s diagram, and government counsel marked the report (which included Dr. Post’s diagram) as an exhibit and gave it to Dr. Rodgers on the witness stand.

Dr. Rodgers proceeded to describe the entrance location, the trajectory inside the body, and, where applicable, the exit location of each of the four gunshot wounds. He testified that bullets entered Mr. Sakai’s body through the left cheek, left shoulder, left lower abdomen, and right lower back, with the two entering through the left shoulder and right lower back piercing the heart, lungs, and other vital organs and likely causing Mr. Sakai’s death. With regard to one of the gunshot wounds, Dr. Rodgers stated that he needed to “refer to the report” before he could answer a question about the wound’s path inside the body.

Most of the government’s questioning relating to the gunshot wounds, however, was focused on whether soot or stippling was found at any of the wound sites. This is unsurprising given the expected defense arguments and testimony. Dr. Rodgers described soot as burnt gunpowder that is propelled out of a firearm along with a bullet and is often deposited on the skin of the person shot when the firearm is fired from less than six to eight inches away. He described stippling as unburnt gunpowder that is also propelled out of a firearm and can cause abrasions to the skin when the firearm is fired from within twelve to eighteen inches of the person shot. The presence or absence of soot and stippling at the sites of the gunshot wounds is critical to the case, given Mr. Brown’s defense that he fired at Mr. Sakai at close range only after Mr. Sakai rushed him and tried to take away his gun.

The government questioned Dr. Rodgers in detail about the four gunshot wounds to establish that no soot or stippling was found at the entrance location of any of the wounds. As worded, the government’s questions directed Dr. Rodgers to base his testimony about the presence or absence of soot and stippling on his review of all of the materials in the autopsy file, including the photographs and the autopsy report, diagrams, and notes authored by Dr. Post. Government counsel did not simply ask Dr. Rodgers whether he was able to see soot or stippling in the photographs of the gunshot wounds (which, for clarity, Dr. Rodgers referred to as Wounds A, B, C, and D). Instead, the government used passive-voice questions to inquire, as to each of the wounds, whether, based on Dr. Rodgers’ review of the entire file, soot or stippling was “observed”:

• Q: Was there soot observed in the entrance or exit wounds that are depicted before you in Government’s Exhibit Number 24 [a photograph of Wound A]?
• DEFENSE COUNSEL: Objection.
• THE COURT: Overruled.
• A: No.
• . . .
• Q: Based on your review of not only the photographs that have been put before you as to those wounds that you designated as A, but the entire file as well, was there stippling observed as to those wounds?
• A: No.
• . . .
• Q: Now, is there soot observed on [Wound B]?
• A: No.
• Q: I guess I should say was there soot observed on [Wound B]?
• A: No.
• Q: And was there stippling observed on that wound?
• A: No.
• . . .
• Q: And looking at the photograph there, is there soot or stippling observed on [Wound C]?
• A: No.
• Q: Based on your review of the file, the photographs, the diagram and notes and everything observed in the file, was there soot or stippling observed on that wound in an unwashed condition?
• A: No. . . .
• Q: And was there soot or stippling observed in the unclean observation —in the observation of [Wound D] uncleaned based on your review of the file?
• A: No.

Dr. Rodgers’ responses to the government’s initial questions about Dr. Post’s ultimate conclusions, moreover, were not the only point at which Dr. Rodgers referred directly to information in the autopsy report. As one additional example, when government counsel asked Dr. Rodgers to describe any scars found on Mr. Sakai’s body, Dr. Rodgers stated that he needed to refer to the report before he could answer the question. He then reviewed the relevant portion of the autopsy report and testified, contrary to Mr. Brown’s claim of self-defense, that all of the scars on Mr. Sakai’s body were healed, with none being a fresh abrasion or bruise that might have resulted from a scuffle.

Dr. Rodgers also gave testimony about several other aspects of the autopsy that appear to have been based on information in the autopsy report and other materials in the OCME file. He testified about the recovery of bullets from Mr. Sakai’s body and clothing during the autopsy, about the precise volume of blood found pooled in Mr. Sakai’s chest and abdomen at the time of the autopsy, and about the viewing of Mr. Sakai’s clothing in the course of the examination. No suggestion was or could have been made that any of this testimony was based on something other than Dr. Post’s writings.

Dr. Rodgers did testify to two opinions that were not included in the autopsy report. He said that the steep upward path of the bullet entering through the right lower back was consistent with Mr. Sakai “being —or his chest at the very least being parallel to the floor” when that shot struck him. And he said there was “a possibility” that pink discoloration of the tissue beneath the entrance wound on the left lower abdomen indicated that the muzzle of the gun was “flush up against” Mr. Sakai’s belly at the time the shot was fired.

The government formally moved the autopsy photographs into evidence at the hearing and will do the same at trial. However, despite the many direct and indirect references in Dr. Rodgers’ testimony to the autopsy report and other materials in the OCME file, the government never moved the autopsy report, notes, or diagrams into evidence, and none of those items was admitted at the hearing.

Statute and Jury Instruction

DC Code § 22-2101. Murder in the first degree
—Purposeful killing; killing while perpetrating certain crimes.
Whoever, being of sound memory and discretion, kills another purposely, either of deliberate and premeditated malice or by means of poison, or in perpetrating or attempting to perpetrate an offense punishable by imprisonment in the penitentiary, or without purpose to do so kills another in perpetrating or in attempting to perpetrate any arson, as defined in § 22-301 or § 22-302, first degree sexual abuse, first degree child sexual abuse, first degree cruelty to children, mayhem, robbery, or kidnapping, or in perpetrating or attempting to perpetrate any housebreaking while armed with or using a dangerous weapon, or in perpetrating or attempting to perpetrate a felony involving a controlled substance, is guilty of murder in the first degree. For purposes of imprisonment following revocation of release authorized by § 24-403.01(b)(7), murder in the first degree is a Class A felony.

Criminal Jury Instructions for DC Instruction 4.201 HOMICIDE—FIRST DEGREE PREMEDITATED MURDER AND SECOND DEGREE MURDER (NO JUSTIFICATION OR MITIGATION GENERATED)
[Name of defendant] is charged with first degree murder. I am going to instruct you on this charge and also on the lesser included offense of second degree murder. After I give you the elements of these crimes, I will tell you in what order you should consider them.

A. FIRST DEGREE MURDER
The elements of first degree premeditated murder, each of which the government must prove beyond a reasonable doubt, are that:

• [Name of defendant] caused the death of [name of decedent];
• [Name of defendant] intended to kill [name of decedent] [another person];
• S/he did so after premeditation; and
• S/he did so after deliberation.

Premeditation means forming an intent to kill. To premeditate is to give thought, before acting, to taking a human life, and then to reach a definite decision to kill.
Deliberation means considering and reflecting on the intent to kill, turning it over in the mind, giving it second thought.

Premeditation —the formation of an intent to kill— may be instantaneous, as quick as thought itself. Deliberation, however, requires some time to have elapsed between formation of this intent and the fatal act, within which one pauses and actually gives second thought and consideration to the intended act. The law does not require that deliberation take any particular amount of time. It can be days, hours or minutes, or it can be as brief as a few seconds. It varies according to the circumstances of each case. It is the fact of deliberation that the government must prove, not the length of time it may have gone on.

[In deciding whether premeditation and deliberation have been proved beyond a reasonable doubt, you may consider the testimony as to the defendant’s abnormal mental condition.]

B. SECOND DEGREE MURDER
The elements of second degree murder, each of which the government must prove beyond a reasonable doubt, are that:

• [Name of defendant] caused the death of [name of decedent];
• At the time s/he did so, [name of defendant] intended to kill or seriously injure [name of decedent] [another person], or acted in conscious disregard of an extreme risk of death or serious bodily injury to [name of decedent] [another person].

Second degree murder differs from first degree premeditated murder in that it does not require premeditation, deliberation or an intent to kill.

Inference on Use of a Weapon
You have heard evidence that [name of defendant] used a weapon. If you decide that s/he did use a weapon, you may consider the nature of the weapon, the way [name of defendant] used it, and other circumstances surrounding its use. If use of the weapon under all the circumstances would naturally and probably have resulted in death, you may conclude that [name of defendant] intended to kill [name of decedent] [another person]. Or you may conclude that s/he intended to inflict serious bodily injury or s/he acted in conscious disregard of an extreme risk of death or serious bodily injury. But you are not required to reach any of these conclusions. Consider all the evidence in deciding whether [name of defendant] had the required state of mind.

Order of Considering Charges
You should consider first whether [name of defendant] is guilty of first degree murder. If you find him/her guilty, do not consider second degree murder. If you find him/her not guilty, go on to consider second degree murder. [If, after making all reasonable efforts to reach a verdict on first degree murder, you are not able to do so, you are allowed to consider second degree murder.]

[If an age enhancement was charged, insert Sentencing Enhancement Based on Age, No. 8.103.]

Instructions for the Answer

You will write a Motion in Limine based on your assigned role.

Mr. Brown would file a motion in limine to exclude “the autopsy report and any attendant documents, as well as any testimony repeating the findings of these documents or the oral statements of the medical examiner.” Mr. Brown would argue in his written motion that any testimony by Dr. Rodgers “based, in any way, on the notes, findings, and/or conclusions of Dr. Post would be unconfronted testimonial hearsay offered in violation of the Confrontation Clause of the Sixth Amendment.”

The government would oppose the motion, stating that Dr. Rodgers’ testimony would be based only on the diagrams and photographs created during the autopsy and not on the contents of the autopsy report or any other writings generated by Dr. Post. Mr. Brown’s counsel argued in response that Dr. Rodgers had reviewed the autopsy report and the diagrams and photographs and that “all of those things will be the basis of his testimony and will adhere to hearsay rules and Confrontation Clause limitations.”

Form

• MS Word Pleading Template
  • An MS Word Template for a basic pleading is now in the Fall 2021 Files Folder. It is a simple, basic format that is easy for me to read.
• The California Model that I provided last term is fine if you modify it for the appropriate court.
  • You will find it in the Files==>Supplemental Reading folder under the title starting "People's Response".