In re Miss. Rules of Evidence

Full title: IN RE: MISSISSIPPI RULES OF EVIDENCE

Court: Supreme Court of Mississippi

Date published: Apr 20, 2009

No. 89-R-99002-SCT (Miss. Apr. 20, 2009)

Opinion

No. 89-R-99002-SCT.

April 20, 2009.

ORDER

GEORGE C. CARLSON, JR.

This matter is before the Court en banc on the Motion to Amend Certain Rules of the Mississippi Rules of Evidence filed by the Supreme Court Advisory Committee on Rules. Having considered the matter, the Court finds that the amendment of Rule 606 and the Comment as set forth in Exhibit "A" hereto will promote the fair and efficient administration of justice.

IT IS THEREFORE ORDERED that the petition is hereby granted to the extent that Rule 606 and its Comment of the Mississippi Rules of Evidence are amended as set forth in Exhibit "A" hereto. This amendment is effective on July 1, 2009.

IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the minutes of the Court and shall forward a true certified copy to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Third Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court.

SO ORDERED, this the 20th day of April, 2009.

Exhibit A Rule 606. Competency of Juror as Witness

(a) At the Trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which he the juror is sitting as a juror. If he the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning the juror's his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his a juror's affidavit or evidence of any statement by the juror him concerning a matter about which the juror he would be precluded from testifying be received for these purposes.

[Amended effective July 1, 2009]

Comment

Rule 606(a) disqualifies a juror from taking the witness stand during the trial of the case in which the juror is sitting. Of course, calling a juror as a witness will be rare; voirdire will generally expose a juror's knowledge of facts relevant to a case and result in disqualification of the juror for cause. Rule 606(b) is designed to protect all "components of [a jury's] deliberations, including arguments, statements, discussions, mental and emotional reactions, votes and any other feature of the process." See FR E 6 06, Advisory Committee Notes. Thus testimony or affidavits of jurors is incompetent to show a compromise verdict, a quotient verdict, misinterpretation of instructions, and the like. See, e.g., Hayes v. Entergy Mississippi, Inc. , 871 So. 2d 743 (Miss. 2004) (pressure to reach a verdict); Busick v. St. John , 856 So. 2d 304 (Miss. 2003) (misinterpretation of instructions); APAC-Mississippi, Inc. v. Goodman , 803 So. 2d 1177 (Miss. 2002) (quotient verdict); Curtis v. Bellwood Farms, Inc. , 805 So. 2d 541 (Miss.Ct.App. 2000) (improper consideration of attorney's statements despite court's cautionary instruction); Gavin v. State , 767 So. 2d 1072 (Miss.Ct.App. 2000) (confusion regarding instructions); Galloway v. State , 735 So. 2d 1117 (Miss.Ct.App. 1999) (improper consideration of defendant's prior conviction). This broad rule of exclusion ensures jurors "freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment." See FRE 606, Advisory Committee Notes. Rule 606(b) does not purport to set forth the substantive grounds for setting aside verdicts because of an irregularity. Even when grounds are alleged to exist, there is a "general reluctance after verdict to haul in and probe jurors for potential instances of bias, m is conduct or extraneous influences." Gladney v. Clarksdale Beverage Co., Inc. , 625 So. 2d 407, 418 (Miss. 1993) (discussing substantive grounds for setting aside a verdict). At the least, a party needs to show "a specific, non-speculative impropriety has occurred," and the trial court must supervise any post-trial investigation to "ensure that jurors are protected from harassment and to guard against inquiry into subjects beyond which a juror is competent to testify." Id. at 419. When jurors are permitted to testify about objective facts not of record and about outside influences, they may not be questioned about the effect upon them of what was improperly brought to their attention. Id. In narrowly prescribed circumstances, Mississippi permits the correction of clerical errors in the verdict, notwithstanding Rule 606(b). See Martin v. State , 732 So. 2d 847, 851-855 (Miss. 1998) (Verdict incorrectly stated the defendant was guilty of possession of morphine when in fact the jury unanimously found the defendant not guilty. Such an allegation of clerical error did "not challenge the "validity" of the verdict or the deliberation or mental process of the jurors.") Of course, the possibility of clerical errors in the verdict form will be reduced substantially by polling the jury. Errors that come to light after polling the jury "may be corrected on the spot, or the jury may be sent out to continue deliberations, or, if necessary, a new trial may be ordered." C. Mueller L. Kirkpatrick, Evidence Under the Rules at 671 (2d ed. 1999) (citing Sincox v. United States, 571 F.2d 876, 878-79 (5th Cir. 1978)).

[Comment adopted effective July 1, 2009]

This matter is before the Court en banc on the Motion to Amend Certain Rules of the Mississippi Rules of Evidence filed by the Supreme Court Advisory Committee on Rules. Having considered the matter, the Court finds that the amendment of the Comment to Rule 617 as set forth in Exhibit "A" will promote the fair and efficient administration of justice.

IT IS THEREFORE ORDERED that the petition is hereby granted to the extent that the Comment to Rule 617 of the Mississippi Rules of Evidence is amended as set forth in Exhibit "A" hereto. This amendment is effective on July 1, 2009.

IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the minutes of the Court and shall forward a true certified copy to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Third Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court.

SO ORDERED, this the 20th day of April, 2009.

Exhibit A Rule 617. Use of Closed-Circuit Television to Show Child's Testimony.

(a) Upon motion and hearing in camera, the trial court may order that the testimony of a child under the age of sixteen (16) years, that an unlawful sexual act, contact, intrusion, penetration or other sexual offense was com mitted upon him or her be taken outside of the courtroom and shown in the courtroom by means of closed-circuit television upon a finding that there is a substantial likelihood that the child will suffer traumatic emotional or mental distress if compelled to testify in open court and, in the case of a criminal prosecution, if compelled to testify in the presence of the accused.

(b) The motion may be filed by the child, his attorney, parent, legal guardian or guardian ad litem, the prosecuting attorney, or any party to the case. In addition, the court may act upon its own motion.

(c) Upon stipulation of the parties, the court may appoint a person, who is qualified as an expert in the field of child sexual abuse and who has dealt with the child in a therapeutic setting concerning the offense or act, to aid in formulating methods of questioning the child and to assist the court in interpreting the answers of the child.

(d) Closed-circuit television testimony may be taken by any method not inconsistent with the Confrontation Clauses of the Constitution of the United States and of the State of Mississippi, the Mississippi Rules of Civil Procedure, the Mississippi Uniform Criminal Rules of Circuit Court Practice, and these rules. In the case of a criminal prosecution, after a determination that the defendant's presence would cause a substantial likelihood of serious traumatic emotional or mental distress to the child, the trial court may exclude the defendant from the room where the testimony is taken. In any such case in which the defendant is so excluded, arrangements must be made for the defense attorney to be in continual contact with the defendant by any appropriate private electronic or telephonic method throughout the questioning. The defendant, the court and the jury must be able to observe the demeanor of the child witness at all times during the questioning.

(e) The court shall make specific findings of fact, on the record, as to the basis for its rulings under this rule. (f) All parties must be represented by counsel at any taking of any testimony under this rule.

(g) This rule does not preclude, for purposes of identification of a defendant, the presence of both the victim and the defendant in the courtroom at the same time.

[Adopted effective March 27, 1991]

Comment

This rule provides an exceptional procedure for the taking of testimony from children said to have been the victims of sexual abuse. If this rule is applied in a criminal case, the rights of the defendant under the Confrontation Clauses of Federal and State Constitutions must be respected. Idaho v. Wright , 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Coy v. Iowa, 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

[Comment adopted effective March 27, 1991; amended effective July 1, 2009 to update citations]

This matter is before the Court en banc on the Motion to Amend Certain Rules of the Mississippi Rules of Evidence filed by the Supreme Court Advisory Committee on Rules. After due consideration, the Court finds that the amendment of Rule 804 and the Comment as set forth in Exhibit "A" will promote the fair and efficient administration of justice.

IT IS THEREFORE ORDERED that the petition is hereby granted to the extent that Rule 804 and its Comment of the Mississippi Rules of Evidence are amended as set forth in Exhibit "A" hereto. This amendment is effective on July 1, 2009.

IT IS FURTHER ORDERED that the Clerk of this Court shall spread this order upon the minutes of the Court and shall forward a true certified copy to West Publishing Company for publication as soon as practical in the advance sheets of Southern Reporter, Third Series (Mississippi Edition) and in the next edition of Mississippi Rules of Court.

SO ORDERED, this the 20th day of April, 2009.

Exhibit A Rule 804. Hearsay Exceptions; Declarant Unavailable

* * * * * * * * * * *

(b) Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

* * * * * * * * * * *

(6) Forfeiture by Wrongdoing. 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.

[Amended effective March 27, 1991; amended effective July 1, 2009 to add subsection (6)]

Comment

(a) In defining unavailability, the rule lists six situations in which unavailability exists:

(1) When the witness exercises a privilege, the witness he is deemed to be unavailable as to the portion of the witness's his testimony which is covered by the claimed privilege. The trial court, however, may first make a preliminary determination that the witness has the right to claim the privilege asserted.

(2) When a witness refuses to testify, despite being ordered to do so by the court, the witness he is deemed unavailable.

(3) If the witness testifies that the witness he has a lack of memory as to the subject matter under inquiry, the witness he is deemed to be unavailable.

(4) Death and sickness render a witness unavailable. See Paulk v. Housing Authority of Tupelo, 228 So. 2d 871 (Miss. 1969), and Home Ins. Co. v. Gerlach, 220 Miss. 732, 71 So.2d 787 (1954).

(5) Absence of the witness from the hearing accompanied by an inability of the proponent of the evidence to compel the witness's presence is within the definition of unavailability. Nothing in Rule 804 contained herein, however, shall affects the admissibility of depositions otherwise admissible under M.R.C.P. 32 (a)(3)(B).

(6) The rationale for this definition of unavailability is based on the recognition of child trauma. If the exception in Rule 804(b)(1) were to be applied in a criminal case, the rights of the defendant under the Confrontations Clauses of Federal and State Constitutions must be respected. Idaho v. Wright , 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Maryland v. Craig , 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed. 666 (1990); Coy v. Iowa , 487 U.S. 1012, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988).

A finding of unavailability and indicia of reliability should be made on the record.

If, however, the proponent of the evidence is responsible for the existence of any of the aforementioned conditions, the condition of unavailability for the purposes of Rule 804 is not satisfied.

Rule 804 gives a more expanded definition of unavailability than existed under M .C.A. § 13-1-111 (repealed effective July 1, 1991) which pro vided for unavailability only in the case of physical or mental incapacity. (b)(1) Former Testimony. The former testimony exception is recognized at common law. McMasters v. State , 83 Miss. 1, 35 So. 302 (1903). An essential ingredient of the former testimony exception has always been the unavailability of the declarant. See Ellis Williams, Mississippi Evidence , § 8-19. M.C.A. § 13-1-111 (repealed effective July 1, 1991) formerly provided for the use of former testimony in civil actions. In addition, the Mississippi court used the common law exception to admit testimony given in a prior criminal action. Smith v. State , 247 So.2d 705 (Miss. 1971); Lee v. State , 124 Miss. 398, 86 So. 856 (1921).

Rule 804(b)(1) permits the prior testimony to be offered (1) against the party against whom it was previously offered or (2) against the party who offered it previously. Thus, the rule equates the direct and redirect examination of one's own witness with the cross-examination of an adversarial witness.

It is not required that the former testimony be in an earlier proceeding of the same case. It is only essential that the party against whom it is directed had a similar motive and an opportunity to develop the testimony on the previous occasion. The rule does not speak in terms of identity of issues. Identity of issues is only important because it bears on motive. Thus, the rule deletes the law common phrase "identity of issues" and substitutes "motive" and "opportunity."

(b)(2) Statement Under Belief of Impending Death. This rule is broader than the common law dying declaration exception formerly observed in Mississippi practice. The rule allows for the dying declaration to be used in homicide cases and in civil actions, but it is not available in non-homicide criminal actions. Mississippi practice has permitted dying declarations only in cases of homicide. (b)(3) Statement Against Interest. Rule 804(b)(3) expands the common law exception of declaration against interest. Traditionally, courts have recognized two declarations against interest, pecuniary and proprietary. The rule extends the exception to declarations against penal interest on the theory that such declarations are reliable. No reasonable person would make such a statement and invite subject himself to possible criminal prosecution liability if the statement were not true.

The second sentence of the rule is concerned with hearsay which inculpates the declarant but exculpates the criminal defendant. Unless such a statement can be corroborated as reliable, it will be excluded.

(b)(4) Statement of Personal or Family History. This rule is similar to Rule 803(19). The distinguishing feature is that the statements under Rule 804(b)(4) are statements made by unavailable declarants concerning their own personal and family history or that of a family member or intimate associate. Rule 803(19) focuses more on reputation.

(b) (5) This rule is identical to Rule 803(24) in both language and intent.

(b) (6) Forfeiture by Wrongdoing. Rule 804(b)(6) provides that a party forfeits the right to object on hearsay grounds to the admission of a declarant's prior statement when the party's deliberate wrongdoing or acquiescence therein procured the unavailability of the declarant as a witness. This recognizes the need for a prophylactic rule to deal with abhorrent behavior "which strikes at the heart of the system of justice itself." United States v. Mastrangelo , 693 F.2d 269, 273 (2d Cir. 1982), cert. denied, 104 S.Ct. 2385 (1984). Davis v. Washington, 126 S. Ct. 2266, 2280 (2006) ("While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system."). Likewise, a party forfeits rights under the Confrontation Clause when misconduct attributable to a party causes a witness's absence. U.S. v. Carson, 455 F.3d 336 (C.A.D.C. 2006) (wrongdoing by co-conspirators). The wrongdoing need not consist of a criminal act and the rule applies to all parties, including the government.

When any of the hearsay exceptions in Rule 804 are applied in a criminal case, the rights of the defendant under the Confrontations Clauses of Federal and State Constitutions must be respected. Crawford v. Washington 124 S.Ct. 1354 (2004) (The confrontation clause forbids "admission of testimonial statements of a witness who did not appear at trial unless [the witness is] unavailable to testify, and the defendant had had a prior opportunity for cross-examination."); Davis v. Washington , 126 S.Ct. 2266 (2006) (Among other things, prior testimony, depositions, affidavits, and confessions are testimonial, as are other statements to police if "the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution."). See also Rubenstein v. State 941 So. 2d 735 (Miss. 2006) (applying Rule 804(b)(5) in light of Crawford and finding statements nontestimonial); Bell v. State , 928 So. 2d 951 (Miss.Ct.App. 2006) (applying Rules 804(a)(6) and 803(2) in light of Crawford and finding statements testimonial).

[Comment amended effective March 1, 1989; March 27, 1991; amended March 20, 1995; amended effective July 1, 2009 to update citations and add subsection (b)(6)]