Tuesday, April 19, 2016

Door Opening

by Jill Paperno,
author of Representing the Accused: A Practical Guide to Criminal Defense

“Knock, knock.”

“Who’s there?”

As defense attorneys we often face (and dread) the claim that we have somehow “opened the door” to previously excluded evidence during a hearing or trial.

Sometimes we recognize we did it inadvertently as testimony begins in response to a question.  Sometimes the hungry grin of opposing counsel tips us off.  Sometimes we are blindsided by a claim that we opened a door that we believed had remained firmly locked.  As we elicit testimony at trial, and have so many considerations, there are times we do forget certain possible ramifications of testimony.  But our error may harm our clients, so if this does happen, it is important to be aware of the law that limits the harm of the opened door (at least to some extent).

Generally, the concept is that we have introduced testimony or evidence that creates some type of inaccurate impression or misrepresentation that can only be cured by admitting the formerly excluded evidence.  But opening the door does not mean that every piece of negative information against your client or case automatically comes in.  Instead, there must be an analysis.

In People v. Melendez, 55 NY2d 445, the Court of Appeals addressed the issue of opened doors in a murder case.  The Court noted:
The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court. (cites omitted).  Where, however, the opposing party "opens the door" on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect "to explain, clarify and fully elicit [the] question only partially examined" on cross-examination. (Cites omitted.)

The "opening the door" theory has been recognized in a variety of situations. For example, apparent inconsistencies or contradictions in a witness' statements or acts brought out on cross-examination to discredit his testimony may be reconciled on redirect by relating to the jury the relevant surrounding circumstances. (Cites omitted.)  Similarly, where cross-examination raises the inference that the witness' testimony was the product of a recent fabrication, a party on redirect can refute this allegation either by introducing consistent statements made by the witness at a time when there was no motive to lie or by having the witness explain why the information was not disclosed earlier. (Cites omitted.) In addition, in situations where only a part of a statement has been brought out on cross-examination,   the other parts may be introduced on redirect examination for the purpose of explaining or clarifying the statement. (Cites omitted.)

The "opening the door" theory must necessarily be approached on a case-by-case basis. As a result, this principle is not readily amenable to any prescribed set of rules. (See McCormick, Evidence [2d ed], § 57.) Nonetheless, it does have its limitations. By simply broaching a new issue on cross-examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect. Rather, the trial court must limit the inquiry on redirect to the "subject-matter of the cross-examination [which] [bears] upon the question at issue." (Cites omitted.)   Moreover, the court should only allow so much additional evidence to be introduced on redirect as is necessary to "meet what has been brought out in the meantime upon the cross-examination." (Emphasis added, cites omitted.)  The "opening the door" theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination. The principle merely allows a party to explain or clarify on redirect matters that have been put in issue for the first time on cross-examination, and the trial court should normally "exclude all evidence which has not been made necessary by the opponent's case in reply." (6 Wigmore, § 1873, p 672.)

People v. Melendez, 55 N.Y.2d 445, 451-452 (N.Y. 1982)

Importantly, the Melendez Court recognized that before a Court admits evidence in response to a claim that a door was opened, the Court must engage in an analysis. The trial court must limit the questioning by opposing counsel to “the subject matter of  (in that case) the cross-examination” relating to the question at issue.  And the Court must limit the additional evidence to only what is necessary to respond to the testimony that was deemed to have opened the door.  Furthermore, the theory does not independently make inadmissible evidence admissible.

In People v. Massie, the Court again considered the “open the door” concept.   The Court concluded the trial court had not erred in permitting evidence relating to identification to be admitted once the defense offered
The Court noted that the “open the door” concept applied to areas beyond cross-examination, stating, “While Melendez discussed only the issue of when cross-examination questions open the door to redirect examination, we have employed a similar analysis in deciding other "opening the door" issues. For example, in People v Rojas, 97 N.Y.2d 32, (2001), we held that the door was opened to evidence of a prior alleged crime by the defendant, a prison inmate, when he tried to show that his placement in segregation within the prison was a harsh and unjustifiable punishment that led to the conduct for which he was on trial. These cases establish that a trial court should decide "door-opening" issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression. (Emphasis added.)

People v. Massie, 2 N.Y.3d 179, 184 (N.Y. 2004).

In 2012 the Court of Appeals considered whether evidence that violated a defendant’s right of confrontation could be admitted at trial if the defense opened the door, concluding that it could.  The Court stated,
As the People concede, the admission of the testimony that a nontestifying eyewitness told the police who had been present at the murder violated the Confrontation Clause, unless the doorwas opened to that testimony by the defense counsel's questioning of witnesses. The question then becomes whether a defendant can open the door to testimony that would otherwise violate his Confrontation Clause rights. Several United States Courts of Appeals have held that  "a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause" (cites omitted).  We agree with this consensus.

If evidence barred under the Confrontation Clause were inadmissible irrespective of a defendant's actions at trial, then a defendant could attempt to delude a jury "by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context"(cite omitted). A defendant could do so with the secure knowledge that the concealed parts would not be admissible under the Confrontation Clause. To avoid such unfairness and to preserve the truth-seeking goals of our courts (cite omitted), we hold that the admission of testimony that violates the Confrontation Clause may be proper if the defendant opened the door to its admission.

People v. Reid, 19 N.Y.3d 382, 387-388 (N.Y. 2012).

Often, defense counsel face the claim that if we deny allegations in a case, such allegations are claims of “recent fabrication” and the defense has opened the door to prior consistent statements.  It is important to read the evidentiary foundation for introduction of such evidence, but to also be aware that not every defense that a complainant has made false claims is a claim of recent fabrication.  In People v. Rosario, 17 NY3d 501, the Court of Appeals addressed this issue in the context of a sex offense trial:
The People single out defense counsel's use of the word "story," claiming that she suggested a recent fabrication by "discuss[ing] in detail the events of [June 24, 2005] and . . . telling the jury that the 'story' began after the police found [complainant] that day." Fabrication may have been an obvious (indeed, the only) defense here, as is often the case where a claim of sexual abuse is contested. But we cannot say that any remarks made by defense counsel in her opening statement created a misleading impression that opened the door for the People to elicit evidence of the note in their direct case (see Massie, 2 NY3d at 184 ["(A) trial  court should decide ‘door opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression"]).

People v Rosario, 17 N.Y.3d 501, 514  (N.Y. 2011).

In a decision that should concern defense counsel, People v. Blair, 94 AD3d 1403, the Fourth Department affirmed defendant’s conviction, finding that the redirect examination of a witness was proper because the defense only partially explored an issue on cross-examination.
Defendant further contends that the court abused its discretion in overruling defense counsel's objection concerning the scope of the redirect examination of a witness by the People. That contention lacks merit, inasmuch as defendant opened the door to the redirect examination by only partially exploring on cross-examination the issue whether the witness and defendant had engaged in criminal activity together in the past, rendering further examination and clarification on that issue appropriate.

People v Blair, 94 A.D.3d 1403, 1404, (4th Dep't 2012).

Of course, it is best to try to anticipate what evidence or line of questions might be considered “door opening”, but if we slip, we must make sure to require the court to adhere to the evidentiary rules – generally, analyzing whether the door-opening evidence was misleading and to what extent, adhering to the rule that legally inadmissible evidence doesn’t necessarily become admissible (but see Reid), ensuring that the evidence should be only what is necessary to respond to the opening of the door, and exercising discretion, which I believe requires a test of probative value versus prejudicial effect.  If the Court fails to do this, I would suggest that you consider making a mistrial motion at the time the evidence is admitted.

Door Opening



by Jill Paperno,

“Knock, knock.”
“Who’s there?”
           As defense attorneys we often face (and dread) the claim that we have somehow “opened the door” to previously excluded evidence during a hearing or trial. 

           Sometimes we recognize we did it inadvertently as testimony begins in response to a question.  Sometimes the hungry grin of opposing counsel tips us off.  Sometimes we are blindsided by a claim that we opened a door that we believed had remained firmly locked.  As we elicit testimony at trial, and have so many considerations, there are times we do forget certain possible ramifications of testimony.  But our error may harm our clients, so if this does happen, it is important to be aware of the law that limits the harm of the opened door (at least to some extent). 

           Generally, the concept is that we have introduced testimony or evidence that creates some type of inaccurate impression or misrepresentation that can only be cured by admitting the formerly excluded evidence.  But opening the door does not mean that every piece of negative information against your client or case automatically comes in.  Instead, there must be an analysis.  

           In People v. Melendez, 55 NY2d 445, the Court of Appeals addressed the issue of opened doors in a murder case.  The Court noted:

The extent of redirect examination is, for the most part, governed by the sound discretion of the trial court. (cites omitted).  Where, however, the opposing party "opens the door" on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect "to explain, clarify and fully elicit [the] question only partially examined" on cross-examination. ( cites omitted).   
The "opening the door" theory has been recognized in a variety of situations. For example, apparent inconsistencies or contradictions in a witness' statements or acts brought out on cross-examination to discredit his testimony may be reconciled on redirect by relating to the jury the relevant surrounding circumstances. ( cites omitted).  Similarly, where cross-examination raises the inference that the witness' testimony was the product of a recent fabrication, a party on redirect can refute this allegation either by introducing consistent statements made by the witness at a time when there was no motive to lie or by having the witness explain why the information was not disclosed earlier. (Cites omitted.) In addition, in situations where only a part of a statement has been brought out on cross-examination,   the other parts may be introduced on redirect examination for the purpose of explaining or clarifying the statement. (Cites omitted.)   

The "opening the door" theory must necessarily be approached on a case-by-case basis. As a result, this principle is not readily amenable to any prescribed set of rules. (See McCormick, Evidence [2d ed], § 57.) Nonetheless, it does have its limitations. By simply broaching a new issue on cross-examination, a party does not thereby run the risk that all evidence, no matter how remote or tangential to the subject matter opened up, will be brought out on redirect. Rather, the trial court must limit the inquiry on redirect to the "subject-matter of the cross-examination [which] [bears] upon the question at issue." (Cites omitted.)   Moreover, the court should only allow so much additional evidence to be introduced on redirect as is necessary to "meet what has been brought out in the meantime upon the cross-examination." (Emphasis added, cites omitted.)  The "opening the door" theory does not provide an independent basis for introducing new evidence on redirect; nor does it afford a party the opportunity to place evidence before the jury that should have been brought out on direct examination. The principle merely allows a party to explain or clarify on redirect matters that have been put in issue for the first time on cross-examination, and the trial court should normally "exclude all evidence which has not been made necessary by the opponent's case in reply." (6 Wigmore, § 1873, p 672 [emphasis in original].) 

           Importantly, the Melendez Court recognized that before a Court admits evidence in response to a claim that a door was opened, the Court must engage in an analysis. The trial court must limit the questioning by opposing counsel to “the subject matter of  (in that case) the cross-examination” relating to the question at issue.  And the Court must limit the additional evidence to only what is necessary to respond to the testimony that was deemed to have opened the door.  Furthermore, the theory does not independently make inadmissible evidence admissible.

           In People v. Massie, the Court again considered the “open the door” concept.   The Court concluded the trial court had not erred in permitting evidence relating to identification to be admitted once the defense offered

           The Court noted that the “open the door” concept applied to areas beyond cross-examination, stating, “While Melendez discussed only the issue of when cross-examination questions open the door to redirect examination, we have employed a similar analysis in deciding other "opening the door" issues. For example, in People v Rojas, 97 N.Y.2d 32, (2001), we held that the door was opened to evidence of a prior alleged crime by the defendant, a prison inmate, when he tried to show that his placement in segregation within the prison was a harsh and unjustifiable punishment that led to the conduct for which he was on trial. These cases establish that a trial court should decide "door-opening" issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression. (Emphasis added.)

People v. Massie, 2 N.Y.3d 179, 184 (N.Y. 2004).


           In 2012 the Court of Appeals considered whether evidence that violated a defendant’s right of confrontation could be admitted at trial if the defense opened the door, concluding that it could.  The Court stated,

As the People concede, the admission of the testimony that a nontestifying eyewitness told the police who had been present at the murder violated the Confrontation Clause, unless the door was opened to that testimony by the defense counsel's questioning of witnesses. The question then becomes whether a defendant can open the door to testimony that would otherwise violate his Confrontation Clause rights. Several United States Courts of Appeals have held that  "a defendant can open the door to the admission of evidence otherwise barred by the Confrontation Clause" (cites omitted).  We agree with this consensus.

If evidence barred under the Confrontation Clause were inadmissible irrespective of a defendant's actions at trial, then a defendant could attempt to delude a jury "by selectively revealing only those details of a testimonial statement that are potentially helpful to the defense, while concealing from the jury other details that would tend to explain the portions introduced and place them in context"(cite omitted). A defendant could do so with the secure knowledge that the concealed parts would not be admissible under the Confrontation Clause. To avoid such unfairness and to preserve the truth-seeking goals of our courts (cite omitted), we hold that the admission of testimony that violates the Confrontation Clause may be proper if the defendant opened the door to its admission.

Often, defense counsel face the claim that if we deny allegations in a case, such allegations are claims of “recent fabrication” and the defense has opened the door to prior consistent statements.  It is important to read the evidentiary foundation for introduction of such evidence, but to also be aware that not every defense that a complainant has made false claims is a claim of recent fabrication.  In People v. Rosario, 17 NY3d 501, the Court of Appeals addressed this issue in the context of a sex offense trial:

The People single out defense counsel's use of the word "story," claiming that she suggested a recent fabrication by "discuss[ing] in detail the events of [June 24, 2005] and . . . telling the jury that the 'story' began after the police found [complainant] that day." Fabrication may have been an obvious (indeed, the only) defense here, as is often the case where a claim of sexual abuse is contested. But we cannot say that any remarks made by defense counsel in her opening statement created a misleading impression that opened the door for the People to elicit evidence of the note in their direct case (see Massie, 2 NY3d at 184 ["(A) trial  court should decide ‘door opening’ issues in its discretion, by considering whether, and to what extent, the evidence or argument said to open the door is incomplete and misleading, and what if any otherwise inadmissible evidence is reasonably necessary to correct the misleading impression"])

People v Rosario, 17 N.Y.3d 501, 514  (N.Y. 2011).

           In a decision that should concern defense counsel, People v. Blair, 94 AD3d 1403, the Fourth Department affirmed defendant’s conviction, finding that the redirect examination of a witness was proper because the defense only partially explored an issue on cross-examination.

Defendant further contends that the court abused its discretion in overruling defense counsel's objection concerning the scope of the redirect examination of a witness by the People. That contention lacks merit, inasmuch as defendant opened the door to the redirect examination by only partially exploring on cross-examination the issue whether the witness and defendant had engaged in criminal activity together in the past, rendering further examination and clarification on that issue appropriate

People v Blair, 94 A.D.3d 1403, 1404, (4th Dep't 2012).

           Of course, it is best to try to anticipate what evidence or line of questions might be considered “door opening”, but if we slip, we must make sure to require the court to adhere to the evidentiary rules – generally, analyzing whether the door-opening evidence was misleading and to what extent, adhering to the rule that legally inadmissible evidence doesn’t necessarily become admissible (but see Reid), ensuring that the evidence should be only what is necessary to respond to the opening of the door, and exercising discretion, which I believe requires a test of probative value versus prejudicial effect.  If the Court fails to do this, I would suggest that you consider making a mistrial motion at the time the evidence is admitted.

Sunday, April 17, 2016

Challenging the Use of Recorded Conversations of Pretrial Detainees

Sometimes an appellate decision rejecting the arguments raised on appeal provides a blueprint as to how similar claims can be raised in a manner that may be more likely to succeed. One such decision is that of the Court of Appeals in People v Johnson  (_ NY3d _ , 2016 NY Slip Op 02552 [4/5/16]), in which the Court rejected a defendant’s claim that the People’s use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility violated his right to counsel and were used without proper consent. The calls were recorded and made available to the prosecution by New York City’s Department of Correction in accordance with the Department’s policy and practice of monitoring inmates’ telephone calls, and releasing those recordings, upon request, to the City’s District Attorneys’ Offices. The Department provides notices, including a notice at the start of telephone conversations that inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy and that an inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring. There is no notice that the recordings can or will be provided to the District Attorney or used in court proceedings.

Defendant urged that the Department acted as an agent of the State when it turned the recordings over to the District Attorney because detainees have limited access to outsiders, including their lawyers. Consequently, it was urged that detainees, left without options available to those able to make bail, out of necessity, make statements during telephone conversations that are detrimental to the defense. The Court rejected this argument, holding that “[h]owever accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant's case.”

Critically, the Court did not reach the merits of defendant’s claim that he did not consent to the Department's dissemination of his recorded conversations simply by using the Rikers Island telephones. On appeal defendant urged that “his consent cannot be implied because he w was never informed that the recordings may be released to the prosecutor” or whether additional notice that recordings may be released to prosecutors and used in court would serve as a best practice. But that claim was not preserved for review because the “defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him.”

Thus, trial counsel in future cases need to urge that courts cannot find implied consent for the dissemination of recorded telephone conversations absent notification as to how such recordings may be disseminated or used. The arguments as to why specific notice is required in order to find implied consent are set forth in the Appellant’s and Reply Briefs filed on behalf of Mr. Johnson by his counsel, Stanley Neustadter, which are available at CourtPass on the Court of Appeals website.

It should be noted that Judge Pigott wrote a powerful concurring decision, asserting that “current arrangement between the Department of Corrections and the District Attorney's office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.” Judge Pigott explains the fundamental unfairness and prejudicial impact of the State being able to record and use telephone conversations of presumed innocent defendants who cannot make bail and of the alternative of asking pretrial detainees to refuse to use the telephone. As Judge Pigott explains, advising a detainee to not to speak over the telephone about anything involving his case, even requests to family members for help in locating a witness or medical records needed for trial, “is not a viable alternative, at least not one that would enable a defendant adequately to ‘prepare a defense . . . without knowledge of the prosecutors.’ ”

Challenging the Use of Recorded Conversations of Pretrial Detainees

      Sometimes an appellate decision rejecting the arguments raised on appeal provides a blueprint as to how similar claims can be raised in a manner that may be more likely to succeed. One such decision is that of the Court of Appeals in People v Johnson  (_ NY3d _ , 2016 NY Slip Op 02552 [4/5/16]), in which the Court rejected a defendant’s claim that the People’s use at his criminal trial of excerpts from certain recorded telephone calls defendant made to family and friends during his detention at Rikers Island Correctional Facility violated his right to counsel and were used without proper consent. The calls were recorded and made available to the prosecution by New York City’s Department of Correction in accordance with the Department’s policy and practice of monitoring inmates’ telephone calls, and releasing those recordings, upon request, to the City’s District Attorneys’ Offices. The Department provides notices, including a notice at the start of telephone conversations that inmate telephone conversations are subject to electronic recording and/or monitoring in accordance with Departmental policy and that an inmate’s use of institutional telephones constitutes consent to this recording and/or monitoring. There is no notice that the recordings can or will be provided to the District Attorney or used in court proceedings.
    Defendant urged that the Department acted as an agent of the State when it turned the recordings over to the District Attorney because detainees have limited access to outsiders, including their lawyers. Consequently, it was urged that detainees, left without options available to those able to make bail, out of necessity, make statements during telephone conversations that are detrimental to the defense. The Court rejected this argument, holding that “[h]owever accurate this description may be of the realities of the Rikers Island pretrial detention environment, and the opportunity presented to prosecutors by the conditions under which detainees are confined, it does not establish the Department acted as an agent in defendant's case.”
    Critically, the Court did not reach the merits of defendant’s claim that he did not consent to the Department's dissemination of his recorded conversations simply by using the Rikers Island telephones. On appeal defendant urged that “his consent cannot be implied because he w was never informed that the recordings may be released to the prosecutor” or whether additional notice that recordings may be released to prosecutors and used in court would serve as a best practice. But that claim was not preserved for review because the “defendant failed to argue to the trial court, as he does now, that his consent cannot be broader than the notice provided to him.”
    Thus, trial counsel in future cases need to urge that courts cannot find implied consent for the dissemination of recorded telephone conversations absent notification as to how such recordings may be disseminated or used. The arguments as to why specific notice is required in order to find implied consent are set forth in the Appellant’s and Reply Briefs filed on behalf of Mr. Johnson by his counsel, Stanley Neustadter, which are available at CourtPass on the Court of Appeals website.
    It should be noted that Judge Pigott wrote a powerful concurring decision, asserting that “current arrangement between the Department of Corrections and the District Attorney's office creates a serious potential for abuse and may undermine the constitutional rights of defendants who are financially unable to make bail. Something needs to change.” Judge Pigott explains the fundamental unfairness and prejudicial impact of the State being able to record and use telephone conversations of presumed innocent defendants who cannot make bail and of the alternative of asking pretrial detainees to refuse to use the telephone. As Judge Pigott explains, advising a detainee to not to speak over the telephone about anything involving his case, even requests to family members for help in locating a witness or medical records needed for trial, “is not a viable alternative, at least not one that would enable a defendant adequately to ‘prepare a defense . . . without knowledge of the prosecutors.’ ”