Monday, May 9, 2016

Hearsay breach entitles correction officers to new trial

Trial judges have substantial discretion in ruling on evidentiary issues at trial. It is hard to gain a new trial even if the judge mishandles an evidentiary ruling. This is partly because of the standard of review on appeal: abuse of discretion. Also, the appellate court will apply harmless error analysis, i..e., the evidentiary error would not have made any difference. This evidentiary appeal succeeds anyway.

The case is Abascal v. Fleckenstein, decided on April 29. Plaintiff was an inmate who sued correction officers over nutritionally inadequate food. He actually won at trial. The jury awarded plaintiff a dollar in nominal damages and $150,000 in punitive damages, to be split 50-50 among the two defendants. But the verdict is gone and a new trial is ordered because of hearsay evidence that hurt the defendants' case.

The case arose at Attica Correctional Facility. Plaintiff claims the CO's prevented him from leaving his cell during 14 mealtimes in retaliation for a grievance he filed over his mistreatment. At trial, the judge allowed the plaintiff to introduce a report from the Correctional Association of New York, a private organization that monitors prison conditions. That report was published a few weeks after the last incident of abuse alleged by plaintiff. Based on anonymous inmate survey answers, the report -- which does not identify its authors -- said that CO's at Attica were abusive and created a widespread climate of fear among inmates.

You can see how this report might sway the jury. The report says Attica is a hellhole, and plaintiff's claim alleges that Attica is a hellhole, so the report corroborates his claim. Except that the report is hearsay. It is an out-of-court statement that was introduced to prove that the Jail is a hellhole. You cannot cross examine a report. While there are exceptions to the hearsay rule, none apply here, including the public records exception (the report is not a public record but a private document) and the business records exception. The latter exception does not apply because the report was not prepared contemporaneous with the events in the case and does not have any trustworthiness since we don't know who prepared it and there is no way to verify that the incidents in the report took place when plaintiff's case arose. We also don't know if the report was prepared by someone with knowledge of the events described in the report. The report is also not the kind of regularly-prepared document that we normally associate with the business records exception to the hearsay rule.

The Court of Appeals (Hall, Pooler and Carney) finally say the erroneous admission of the report was not harmless error. The jury was probably influenced by the report, and it corroborated plaintiff's claim that the CO's had abused him through retaliation. And plaintiff's lawyer heavily relied on the report during summation. Since this case "was not particularly strong," the report made a difference at trial and the CO's get another shot before the jury.

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