Some interesting evidence issues at the Second Circuit

I am not seeing a lot of Second Circuit rulings on trial-related issues, like evidence, hearsay, and jury issues. This case raises those issues, but as expected, the plaintiff loses because trial courts have broad discretion in managing their affairs, and you'll need a catastrophic error at trial in order to get a retrial.

The case is Askew v. Lindsay, a summary order issued on August 1. This police misconduct case went to trial in White Plains. The plaintiff lost. His attorneys have identified trial errors that might lead to a new trial. The Court of Appeals does not see it that way. Here are the issues.

1. Plaintiff's romantic partner saw the whole thing but she did not testify at trial. But she did testify at a preliminary hearing in Monticello Village Justice Court. Plaintiff wanted to read that testimony to the jury. The trial court said no to this. While this is sworn testimony, but there might not have been any cross-examination. This is hearsay, but we have exceptions to the hearsay rule, including former testimony from an unavailable witness. The problem for plaintiff, the district court held, was there is no legal authority for the proposition that the District Attorney, who handled the Village Justice Court proceeding, is a "predecessor-in-interest" to the police officers such that that the DA had an incentive to ensure the criminal court testimony was fair to the officers. The Second Circuit has never defined who is a predecessor-in-interest. But that issue will await another case because plaintiff cannot satisfy a more fundamental problem: there was no proof that the female witness was unavailable for trial. Yes, plaintiff tried to contact her through Facebook and six old phone numbers, but plaintiff "did not call [her] at the phone number she had used during their relationship" and did not hire a process server to serve her with a trial subpoena at her old address. Nor did he seek court intervention to ensure that she would testify in court. 

2. What about the residual exception to the hearsay rule? I don't see too many cases invoking this exception, but Rule 807 permits hearsay in special circumstances provided it is trustworthy. That exception does not apply here, the district court held, because the female witness was plaintiff's romantic partner. Courts have held that witnesses like this might not have trustworthy testimony. Moreover, the Court of Appeals (Pooler, Perez, Rakoff [D.J.]) says, the witness had a pending misdemeanor charge relating to plaintiff's arrest incident, so she would have had an incentive to give testimony at the criminal court hearing that was unfavorable to the police. And her testimony is not corroborated by the 911 call relating to the incident. Her testimony was properly excluded.

3. Final issue: the jury wanted the court to read back certain trial testimony during their deliberations. Juries do this from time-to-time, requiring the court and the parties to figure out the best way to comply with the jury's request. Sometimes the court asks the jury to specify exactly what it wants to hear. That's what happened here. The jury then changed its mind and said it did not want any read-backs. I guess plaintiff says the read-back would have helped his case but that the jury's inquiry about what the jurors really wanted caused them to change their mind involuntarily. The Court of Appeals, however, says the trial court's inquiry was proper in order to clarify what the jurors wanted. No new trial on this basis, either.