Thursday, January 27, 2005

The Case of the Roving Recorder, et al.

The new Iowa Court of Appeals decisions were posted yesterday. Some items I noted:

STATE v. CHRISTY was yet another attempt to find a loophole in OWI prosecutions: a claim by defense counsel regarding the certification that the machines were in working order was improper. The certificate was signed as "reviewed by" James Bleskacek and had a line for "lab analyst" Robert Monserrate. Basically, Bleskacek examined the machine and Monserrate signed off on the report. Both analysts had passed training that qualified them to certify the machines.

Defense first objected to the admission of the analyst's training certificates as hearsay. Apparently the prosecution hadn't made a proper foundation for the exception for documents in the ordinary course of business. However, as the court pointed out, this was harmless error because the analysts themselves were there and testified about their training.

The defense then tried to claim that the certification on the machines was improper because: 1) Monserrate hadn't personally examined the machine, and 2) The exam was done on-site at the station instead of trucking the machine back to Des Moines DCI lab. The court found neither of these very compelling either.

Finally - and this is my favorite - defense alleged that their client's rights to “be confronted with the witnesses against him” were violated when “Monserrate falsely portray[ed] himself as the laboratory analyst” who examined the DataMaster devices at issue, because “[t]he original certificates give no indication that anyone other than Mr. Monserrate examined the instruments in question,” preventing defense counsel from recognizing “the need to compel Mr. Bleskacek’s presence at trial.” In response, the Court of Appeals politely points out that Bleskacek was at trial and the defense did cross-examine him quite vigorously, so it's not quite sure why defense feels it didn't confront him adequately.

(Perhaps they wanted little boxing gloves?)


KOSTMAN v. STATE involved a long-shot ineffective assistance of counsel claim: the defense had tried to suppress their client's confession to the acts which supported his conviction for lacivious acts with a child as a habitual offender and sexual predator. They called Dr. Dan Rogers, a court-appointed psychologist, to testify that the defendant was easily led, that he had relatively low verbal I.Q. and was essentially unable to read, making it unlikely he could have understood the Miranda warnings. The trial court denied the motion, and the trial went forward. The defendant was convicted, and appealed based on ineffective assistance of counsel because his defense team failed to call Rogers at trial. (NOTE: who has a defense "team" in Iowa? Do we look like Johnny Cochran lives here?) Of course, as the Court of Appeals pointed out, if counsel had called Rogers the State would probably have been able to rebut his testimony by pointing out that Kostman was a tad familiar with Miranda warnings, having had six prior convictions for lacivious acts with a child. The Court found that a "reasonable strategic and tactical decision."

(Ya think?)


STRANGE V. GLASCOCK (Speaking of unusual names):

"Plaintiff claimed to have suffered a brain injury as a result of the accident. When specifically asked by defendant’s attorney she said she was claiming damages for a brain injury. Prior to trial she had two separate neuropsychological examinations by two different neuropsychologists, one of her choosing and one designated by the defendant. Both experts determined that plaintiff malingered on the tests and testified generally that one who malingers on neuropsychological tests may also be likely to malinger as to subjective physical complaints."

(NOTE: Sign #459 that your case is going straight down the toilet: your own expert testifies your client is a malingerer.)

A defense verdict was rendered based on an assessment of 50.5 percent fault on the plaintiff. The plaintiff appealed based on the inadmissibility of a defense reconstruction of the accident, and the claim that the testimony by the neuropsychologists that she was malingering was impermissible character evidence.

Iowa Rule of Evidence 5.608 provides:

a. Opinion and reputation evidence of character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations:

(1) The evidence may refer only to character for truthfulness or untruthfulness.

b. Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, other than conviction of crime as provided in rule 5.609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’s character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The Court found that the truthfulness of a witness is not “a fact in issue,” but a matter to be generally determined solely by the jury and that expert opinions as to the truthfulness of a witness are not admissible. However, Iowa is “generally committed to a liberal rule which allows opinion testimony if it will aid the jury in screening the properly admitted evidence to ascertain the truth." The expert testimony about the mental condition of a victim is admissible where the victim’s mental capacity is a key element of the crime charge. A key element in this case, if the jury had gotten to the issue of assessing plaintiff’s damages, was whether or not plaintiff suffered a brain injury and other injuries to her person. Therefore, the expert testimony was admissible on the issue of plaintiff’s personal injury, and the testimony was such that it would aid the jury in screening the properly admitted evidence to ascertain the truth as to the injuries she sustained. NOTE: there was a dissent by Judge Hecht in which he indicated he'd have excluded the malingering evidence.


STATE v. PHILPOTT involves criminal eavesdropping. The facts are the most interesting part of the case:

Sadly, certain employees in the Franklin County Clerk of Court’s office, including the defendant, had a longstanding conflict. The State blames the defendant for the conflict and the defendant blames her coworkers. As disappointing as it is that the employees may have put their own personal issues before the good of the office, identifying the instigator or instigators of the conflict is not the issue. The case focuses on the operation of defendant’s tape recorder on November 7, 8 and 9 of 2002. Defendant had kept the tape recorder on her desk in the office for around a year before the days at issue. Following a verbal interchange with one coworker, the defendant sent an e-mail to the acting clerk of court to explain her side of the incident. In the e-mail she stated, “If I need to run a tape recorder every time I speak to either one of them to have an accurate record of the conversation, then I will.”

On November 7, 2002 coworkers claimed to notice the tape recorder was operating while the defendant was at lunch. One called the county attorney and the acting district court administrator to inquire about the legality of defendant recording conversations while she was out of the office. On November 8, the tape recorder allegedly was operating while the defendant was in another room on a conference call. On November 9, the tape recorder allegedly was operating while the defendant was at lunch. A coworker called District Court Judge Carroll. The judge was to testify he observed that the play and record buttons were depressed and the voice activation switch on the recorder was on. The judge called the acting court administrator and put him on hold while the judge sought to determine whether the tape recorder was recording. He stopped the tape, rewound it briefly, then listened to it. He heard voices of people in the office and the sound of whistling he made earlier as a test. Following a staff meeting, the defendant removed the recorder.

Interesting work environment, that. Reminds me of a quote my aunt Ellen uses to describe our family: "We put the "fun" in dysfunctional." Don't ask.

The defendant raised three primary issues on appeal: (1) the court should have granted her motion to dismiss because the statute violates due process and equal protection; (2) the State failed to prove she recorded anything, left her recorder on intentionally, or that the communications recorded were “clothed with an expectation of privacy;” and (3) the court should have granted a new trial because the jury was misinstructed, prejudicial evidence without probative value was admitted, and the weight of the evidence is against the verdict. The most interesting of these is the constitutional claim. Iowa Code section 727.8 provides:

Any person, having no right or authority to do so, who taps into or connects a listening or recording device to any telephone or other communication wire, or who by any electronic or mechanical means listens to, records, or otherwise intercepts a conversation or communication of any kind, commits a serious misdemeanor; provided, that the sender or recipient of a message or one who is openly present and participating in or listening to a communication shall not be prohibited hereby from recording such message or communication; and further provided, that nothing herein shall restrict the use of any radio or television receiver to receive any communication transmitted by radio or wireless signal.

The defendant had moved to dismiss case, alleging the statute was unconstitutional as applied to the her and on its face because:

1. It is void for vagueness because “having no right or authority to do so” is not defined or explained so a person of common intelligence would not have fair notice of its meaning and application.

2. It is overbroad because it invades a defendant’s First Amendment right to access to information.

3. It violates due process because it fails to provide an explicit standard for enforcement, thereby unduly delegating basic policy matters to police and others on a subjective basis.

4. It violates due process by imposing a criminal penalty without a requirement of general or specific intent.

5. It violates equal protection because it does not allow a person to record a conversation when absent that the person has the right to record when present.

With regard to the "right or authority" issue, the Court pointed out that this has been sufficiently defined in State v. Fox, 493 N.W.2d 829, 831 (Iowa 1992). Regarding the enforcement issue, the Court noted that the statute provides two general exceptions to the prohibition against listening to, recording, or intercepting conversations or communications: (1) a person can record if “openly present and participating in or listening to the communication” and (2) radio and television receivers may receive radio and television signals. The Court held the statute does not delegate basic policy decisions to enforcers or to provide for resolution on an ad hoc or subjective basis merely because it does not contain additional exceptions to the prohibited conduct, and so was not unconstitutionally vague so as to delegate policy decisions to enforcers or to provide for resolution on a subjective basis.

(An interesting side note: the defendant argued the statute should contain exceptions for recording with permission or if a person is unable to be present, such as a student recording a lecture. The Court responded: "Such argument should be addressed to the legislature." As a practical matter, I don't think the cops are waiting outside lecture halls to bust students, but don't you think this might be a little problematic?)

The Court also found the rest of the argument less than persuasive:

We conclude, as did the district court, section 727.8 is a general intent statute . . . We find unpersuasive the defendant’s argument it is turned into a public welfare strict liability offense because it lacks specific criminal intent language. . . .

The defendant contends the statute violates equal protection because it (1) classifies communications in which the participants have a reasonable expectation of privacy with those in which they do not and (2) too narrowly defines the exception for openly-present or participating and does not allow for recording by consent. . . . [W]e do not agree the statute must provide for recording by consent in order to pass constitutional muster as applied to the defendant. . . . The circumstances of this case show the defendant, in order to provide an accurate record of her interaction with coworkers, stated she would record her interactions with them if that is what it took. Under the statute, the defendant was free to record her conversations and interactions with coworkers without regard to their consent (emphasis supplied). . . .

The defendant asserts the State’s interest in stopping electronic or mechanical eavesdropping is based on the assumption the act is surreptitious and invades the participants’ privacy, citing cases from other jurisdictions and arguing the statutory offense is derived from the common law offense. From that assertion, she argues the statute is neither narrowly tailored nor rationally related to the State’s interest. The defendant argues strict scrutiny applies and the statute must be narrowly tailored because it infringes what she sees as a First Amendment right of access to information. She claims it is not rationally related because it does not require an expectation of privacy. . . . Strict scrutiny applies if a law implicates a fundamental right. . . . The defendant asserts “courts have held that gaining information or documents from a public office can implicate a First Amendment right.” Assuming without deciding the defendant’s assertion is true, she has provided no authority that any such right is fundamental. We conclude section 727.8 demonstrates a reasonable fit in the means chosen to protect individuals from unauthorized or unknown interception of their communications. It requires either that the person obtain the right or authority or else be openly present. In addition, as applied to the defendant, the statute would not prevent her from obtaining information or documents from a public office, nor would it prevent her from creating an accurate record of her interaction with coworkers. It merely prevents her from indiscriminate recording of conversations to which she is not a party.

No comments: