Thursday, December 19, 2013

People v Oddone - Three Significant Evidentiary Rulings in a Single Decision

 by
Jill Paperno, Second Assistant Monroe County Public Defender

The Court of Appeals reversed a conviction of Manslaughter in the First Degree on December 12, 2013 in People v. Oddone.  The defendant, Mr. Oddone, originally charged with murder, was convicted of manslaughter based on his choking of another man in a bar.  Oddone had been dancing with a woman on a table in a bar.  The bouncer, Reister, told him to get off.  When Oddone refused, Reister pushed him off the table.  A fight began and Oddone got behind Reister and put his arms around his neck.  Oddone choked him until Reister fell down, and continued to choke him while on top of him on the floor.  Reister passed out and died two days later.  Defendant let go and ran out of the bar.  The defense raised justification at trial.  The length of time Oddone choked Reister was hotly contested. 

In reversing this Oddone's conviction, the Court made three significant evidentiary rulings,

1.  The Deputy Medical Examiner was permitted at trial to testify about the duration of the period during which Oddone choked Reister based on the petechiae (red spots caused by bursting of blood vessels in the eyes) he observed as well as discoloration of Reister's face.   The defense claimed that there was no scientific basis for the testimony about how the appearance of petechiae could establish the length of time of compression on the neck.  The Court found that as the Medical Examiner testified based on his experience rather than scientific principle, a Frye determination was not required.  The Court noted that the defense can respond to such testimony with experts and cross.  (But what if you have no idea that an expert is about to go where no man has gone before?  It is difficult, if not impossible, to find an expert in the middle of trial.)

2.  A defense witness gave a prior statement to an insurance company investigator that the choking occurred for 6 to 10 seconds.  At trial she testified that it lasted about a minute or so, and that she didn't know how long.  Defense counsel sought to refresh her recollection. But the trial court refused to permit this, ruling that the witness had "given no indication she needs her memory refreshed."  The Court of Appeals, holding that this ruling was reversible error explained that,  

(W)hen a witness says an incident "could have" lasted "a minute or so" and adds "I don't know" the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the "a minute or so" testimony - testimony damaging to the defense, from a defense witness's own lips - while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was "an effort to impeach your own witness," but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness's recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant's right to a fair trial. (Chambers v. Mississippi,410 US 284 [1973]).  (Emphasis added.)
This holding is extremely important. In Chambers the United States Supreme Court held that a state's evidentiary rule is trumped by and cannot preclude a defendant form introduce reliable evidence consistent with his right to present a defense. Subsequently, the Court, citing Chambers, ruling that “the hearsay rule may not be applied mechanistically to defeat the ends of justice” (Green v Georgia, 442 US 95, 97 [1979]). And now the New York Court of Appeals has cited Chambers for this same proposition. This is a holding that one would be wise to keep in the pocket for a rainy day or for your next trial.

3.  The defense sought to call a psychology professor to testify as an expert on the issue of eyewitness observations.  The witness would have explained that "It is generally accepted in the field of forensic psychology that eyewitnesses routinely overestimate the duration of relatively short events lasting a few minutes or less."  The trial court barred the testimony.  The Court, interpreting People v. Legrand, (abuse of discretion to exclude testimony about reliability of eyewitness identification if case is based solely on accuracy of witness's identification), noted that Legrandcan stand for the principle that "there are cases in which it is unfair to deprive the jury of expert testimony about the reliability of eyewitness observations."  Although the Court did not determine whether the exclusion of this testimony at trial was an abuse of discretion, it seemed to support its admission on the retrial necessitated by the reversal on the refreshing memory issue.
So one win, one loss, and one tie (but really close to a win).  And, if I'm interpreting it correctly, an interesting theme throughout the decision about what is fair to a defendant, rather than hypertechnical adherence to rules. 

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