Tagged: expert evidence

NYCA Upholds Use of Prior Bad Act Evidence to Rebut EED Claim

POST WRITTEN BY: Prof. Peter Widulski, Assistant Director of the First Year Legal Skills Program and the Coach of International Criminal Moot Court Team at Pace Law School.

Pursuant to N.Y. Penal Law § 125.25 (1)(a), a defendant charged with intentional murder may present an affirmative defense that at the time of the killing he suffered from an “extreme emotional disturbance” (EED) for which there is “a reasonable explanation or excuse.” If a preponderance of evidence supports this defense, defendant will be convicted of manslaughter, rather than murder.

The NY Court of Appeals has reviewed a dozen or so cases on the potential merits of an EED claim. Most of these presented the issue of whether the trial judge erred by declining defendant’s request to charge the jury on an EED defense. In a November 18, 2015, decision the Court of Appeals reviewed the case of People v. Israel, 2015 N.Y. Slip Op. 08370, in which the trial court did charge the jury on defendant’s EED claim, but the jury rejected it.

The key facts in Israel were that in June 2007 the defendant, upon seeing a friend chased and threatened by several men, fired a gun multiple times at the pursuers, killing one of them. With respect to the killing, the prosecution introduced alternative counts of intentional murder and depraved indifference murder. Note, however, that Penal Law permits an EED defense for an intentional murder charge but not for depraved indifference murder.

At trial in support of his EED claim, the defendant called a psychiatrist, who opined that defendant suffered (untreated) post-traumatic stress disorder (PTSD) as a result of an altercation defendant had with two men in October 2005, during which defendant was stabbed eight times in the back. The expert testified that defendant reacted violently in June 2007 because his PTSD was triggered when he saw his friend being chased and attacked. The expert further testified that defendant was “not a violent person by nature” and had no “significant history of having done violent acts.”

To contest the claim that defendant’s action in June 2007 was attributable solely to the PTSD, the prosecution cross-examined the psychiatrist about two incidents prior to the stabbing and about one that occurred in 2010, in all of which defendant reacted violently with little or no provocation. Regarding the 2010 incident, the prosecution subsequently called to the stand a corrections officer, who testified that while defendant was incarcerated in August 2010, he smashed an inmate telephone in anger and threatened the officer.

In People v. Israel, the jury rejected defendant’s EED argument and convicted him of intentional murder for killing one of his friend’s pursuers and of attempted murder for firing at police officers who came to the scene.

The issue on appeal at the Appellate Division, First Department was whether the trial judge erred by allowing the prosecutor to cross-examine witnesses about the defendant’s other bad acts and to present testimony about the 2010 prison incident. As I wrote earlier, to be admissible such evidence must relate to a material issue and must not be used to show defendant’s propensity to commit wrongful acts.

The Court of Appeals unanimously held that by making an EED claim, defendant raised a material issue about his state of mind at the time of the killing and thus “opened the door” to rebuttal about whether PTSD was the sole reason for his actions at that time. Noting that objection to evidence of one of the two prior bad acts had effectively been waived at trial, the Court found that the prosecutor’s questions about defendant’s other bad act prior to his stabbing were for consideration, as the trial judge made clear in limiting instruction to the jury, only to the issue raised by defendant about his state of mind at the time of the killing and not for evidence of propensity.

The Court did agree with defendant that the trial court erred in admitting evidence of the 2010 prison incident (three years after the crime charged) because the focus of an EED defense must be on whether defendant was suffering from an EED at the time of the crime charged. This evidence should have been excluded as pointing only to propensity, but the Court held this error harmless because other admissible evidence showed “overwhelming” proof and affirmed defendant’s conviction.

Related Readings:

Judges Quarrel About Counsel’s Silence During Prosecutor’s PowerPoint Summation

Recently, the New York Court of Appeals affirmed the conviction of a defendant accused of killing her husband’s one-year-old daughter, although she had claimed that her counsel was ineffective for failing to object to the prosecution’s questionable PowerPoint presentation during summation. People v. Santiago, NY Slip Op 01261 (2014). At trial, the prosecution claimed that the defendant, Cheryl Santiago, had suffocated her husband’s child after becoming frustrated that the child would not fall asleep. Id. at *5. An expert witness for the prosecution testified that it would have taken the defendant approximately four to six minutes to suffocate the child by using her hand to cover the child’s mouth and nose. Id. at *6.

In summation, the prosecutor presented to the jury  a six minute PowerPoint presentation that consisted of a series of slides using a postmortem photograph of the child. Alluding to the expert’s opinion regarding the amount of time it took for the child to suffocate, the prosecutor suggested to the jury that “if there’s any question in your mind how long six minutes take, take a look at this.” Id. at *7. Without objection from defense counsel, the prosecutor proceeded to play the PowerPoint slides, “with each successive slide progressively fading, until the final slide was entirely white, thus eliminating the image of the [child].” Id.  Notably, some of the slides also contained captions that described the child’s deteriorating medical condition –stating that at one and a half to two minutes- “struggle ends;” four minutes- “brain death occurs;” and four and a half to six minutes –“cardiac death.” Id.

The Court rejected the defendant’s claim that trial counsel was infective for failing to object to the PowerPoint presentation, noting that counsel’s lapse was not a “clear-cut” or “dispositive” omission. Id. at *13. The Court observed that a postmortem photograph itself was properly admitted at trial, and that “[t]he slides depicting an already admitted photograph, with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury’s emotions.”Id.

The Court did note that it did not know how the PowerPoint presentation aided the jury in its fact-finding function, or how it was relevant to the cause of the child’s death. Id. Furthermore, the Court also observed that the defendant’s failure to make a timely objection to the PowerPoint’s admission –which would have required the trial court to rule on its admissibility- precluded the Court to extend its inquiry further as to whether the trial court abused its discretion and that such error required a reversal of the judgment of conviction. Id. at *14.  In noting this observation, however, the Court implicitly suggested that its inquiry of the matter was cut short due to counsel’s failure (i.e. ineffective assistance of counsel) –and, by its own admission, an objection would have placed the trial court in an unlikely situation of finding that the PowerPoint evidence had any probative value, and even if so, that its value outweighed its prejudicial impact. Id. at *15 (conceding that the Powerpoint failed to “aid[] the jury in its fact-finding function”).

In dissent, Judge Rivera observed that the PowerPoint presentation had manipulated the evidence and was “designed to inflame the passion of the jury in order to engender prejudice against the defendant.” Id. at 1 (dissent, j. Rivera). She concluded that the Court had erred in not finding that counsel’s failure to object to the PowerPoint presentation had amounted to ineffective assistance of counsel. She noted that counsel’s lapse permitted the prosecution to taint the jury’s deliberative process –which denied the defendant a fair trial. Id. at (“The prosecutor’s use of this Powerpoint imagery was an impermissible attempt to secure a verdict based on emotion and repulsion for the defendant, rather than facts.”).

Judge Rivera was also extremely troubled by the inflammatory nature of the Powerpoint, noting that “[a]ny doubts as to the emotional responses engendered by the presentation are easily dispelled by viewing the slide show, wherein the picture of a 21 month old child, in her pink pajamas, with white froth on her lips, her body prone and lifeless, is projected over and over, fading slightly with each slide, until all that remains is a white background and the memory of her tiny body. One simply cannot be but moved by this depiction.” Id. at 3.

Notably, the ever-changing dynamics of courtroom advocacy due to the technological advances in “trial presentation” software may continue to cause issues for criminal defendants when utilized in an improper fashion by prosecutors. Although such technology can provide each party a better, faster and clearer way of presenting information than conventional trial form, it can also lead the jury away from “the four corners of the evidence” and hinder the truth seeking process. Hopefully, the courts will use caution when allowing evidence to be presented in an unconventional format, and take consideration of the fact that a juror may become more occupied with the entertainment value of the presentation rather than the relevance of the information being conveyed.

Related Readings

  • People v. Caldavado, 78 AD 3d 962 (2nd Dept. 2010) (permitting a “PowerPoint presentation as to the injuries associated with shaken baby syndrome and in allowing an expert witness to shake a doll in order to demonstrate the force necessary to inflict shaken baby syndrome.”).
  • People v. Yates, 290 AD 2d 888 (3rd Dept. 2002) (finding no error in the presentation of  a computer-generated video demonstrating the mechanics of “shaken baby syndrome.”).

Battle of Experts: Controversy in Shaken Baby Case Set for NY Court

A New York court is set to hear testimony that will decide whether a shift in the medical community over the prognosis of shaken baby syndrome (“SBS”) constitutes newly discovered evidence under Article 440 of the New York Criminal Procedure Law. Supreme Court Justice James Piampiano has ordered a hearing in People v. Rene Bailey after being presented with strong evidence that the medical community’s standard for diagnosing shaken baby syndrome has significantly shifted over the years since Bailey’s conviction.

 Rene Bailey, once a daycare provider, was convicted of violently shaking a two year old child and causing severe brain injuries that resulted in the child’s death. At trial, the proof against Bailey rested primarily upon the testimony of a state medical examiner, who had claimed that the child’s internal brain injuries could only be caused by a violent shaking of the  body (SBS), and could not be attributed to any other cause known within the medical community at the time.

Contrary to the state’s medical examiner, medical experts for Bailey have now opined that a diagnosis of shaken baby syndrome should not have rested exclusively on the presentation of the child’s internal brain injuries, consisting of subdural hematoma, retinal hemorrhaging, and cerebral edema (“triad of injuries”). As of today, many members within the medical community no longer promote an exclusive diagnosis of SBS based solely upon the presentation of internal brain injuries, realizing that causes unassociated with shaking may be the root of the issue. Since Bailey’s conviction, medical studies have also shown that a child may suffer the “triad of injuries” as a result of impact to the brain caused by common short distance falls. Notably, as opined in an article by NY Times writer Emily Bazelon, some biomechanical engineers have raised doubts, [in the absence of external injuries], about whether it’s even possible to shake a baby to death.

Aside from new medical testimony, the Court will also entertain evidence that has been discovered by her attorney, Professor Adele Bernhard of New York Law School, which shows that her client may be factually innocent. The evidence presented by a new witness appears to support Bailey’s continuous declaration that she had not shaken the alleged victim, and further corroborates the observation of another child, who was present at the time of the occurrence and had initially stated to the police that the alleged victim had jumped off a chair and hit her head on the ground.  Justice Piampiano has also reserved judgment upon whether further discovery will be ordered in the matter, including whether Bailey’s request for the State to produce notes from an interview of a third child eyewitness will be granted. According to court papers, a third child may have also been present at the time of the alleged occurrence, and the child may have made exculpatory declarations to police consistent with Bailey’s version of the event  that were never disclosed to trial counsel.

Related Readings:

 

Recent SCOTUS Decision Restricting Fifth Amendment Protection

In Kansas v. Cheever, the Supreme Court recently held that when a defendant presents evidence of lack of mens rea through a psychological expert who has examined him the government may, consistent with the Fifth Amendment, rebut that evidence with testimony from a different expert who examined him in a pretrial, court-ordered examination.   In doing so, the Court clarified and arguably extended its holding in Buchanan v. Kentucky, 483 U.S. 402 (1987), where it allowed such proof to rebut a defense of extreme emotional disturbance, and where the court-ordered examination had been requested by both parties.  The Cheever Court held that the defendant’s assertion of voluntary intoxication that relied on an expert was sufficient to permit the prosecution to rebut because it is a “mental status” defense, even though voluntary intoxication is not a “mental disease or defect” under Kansas law.

Of course, in 1981 in Estelle v. Smith, 451 U.S. 454 (1981), the Supreme Court held that a court-ordered psychiatric examination violated the defendant’s fifth amendment rights where the defendant neither requested the examination nor put his mental capacity in dispute at trial.

The Cheever decision was unanimous.  Yet it is not clear why the content of a defendant’s discussion with a court-appointed expert should be revealed to a jury to rebut the testimony of another expert.  The Court indicated that this was essential to fair and effective impeachment, but, of course, the defendant’s expert is wholly subject to cross.  Certainly, in such a case, the defendant is being “compelled” to be a witness against himself, and, given the prosecution’s ability to cross examine that expert, fairness does not really justify that.  Moreover, although the court likened the situation to allowing a defendant to waive his privilege as to some subjects and not others, that is really not the case, since the defendant did not waive his privilege at the time when he spoke with the court-appointed expert, nor was the same psychiatric issue being investigated.   To the extent that it makes candor costly, the Cheever decision may well have a negative impact on the reliability of court-ordered pre-trial examinations that frequently are conducted for a variety of psychiatric reasons.

Cheever also claimed that if the rebuttal was properly permitted, the testimony exceeded proper limits in that it described broad subjects that had been discussed, i.e., the shooting from his perspective, intimated that he had  a personality disorder and discussing his alleged infatuation with criminals.  The Kansas Supreme Court had not addressed this issue, however, and the Supreme Court declined to address it in the first instance.