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Case of the Day: Bruton v. Texas

The case of the day is Bruton v. Texas (Tex. Ct. Crim. App. 2014). The defendant, Peter Cain Bruton, was found guilty of aggravated sexual assault of a child and sentenced to imprisonment for life. At his sentencing, the prosecution had sought to introduce documents purporting to be public records from England showing that Bruton had been previously convicted of crimes in the Crown Court in Norwich, an INTERPOL record purporting to show that he had previously convicted of crimes in the UK, and a letter from a Data Protection Disclosure Unit Officer of the Norfolk Constabulary to the Denton County (Texas) District Attorney’s Office purporting to show that he had previously been convicted twelve times for indecent assaults on a young girl or girls.
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Lago Agrio: More on the Corroboration of Judge Guerra’s Claims

I had an interesting discussion on Friday with Roger Parloff on Twitter regarding the records that, Chevron says, corroborate Judge Guerra’s account of his participation in a bribery scheme. I said to Roger that I thought there might be a hearsay problem with the records, and he said (I think he was in court for this) that Judge Kaplan had asked for briefing on just that question. The parties have filed short briefs on the issue. Let’s dive in.

I don’t have access to a copy of the exhibits that Chevron has offered into evidence. But we do have the previously filed version of what appears to be the June 24, 2011 deposit slip referenced in paragraph 18 of the Guerra witness statement. 1 Take a look at the last page of the exhibit (you can click to download the full-sized image):

Deposit Slip

Here’s what Guerra had to say about it:

In particular, on or about June 24, 2011, Mr. Zambrano deposited $300 into my Banco Pichincha bank account. Specifically, PX 1713 (CVX-RICO-5913098) and PX 1684 include a June 24, 2011 deposit slip, certified by Banco Pichincha, that reflects a $300 deposit made by Mr. Zambrano into my account. The deposit slip bears Mr. Zambrano’s signature, which I recognize from the numerous times I have seen Mr. Zambrano’s distinctive signature, including on orders I prepared for him in the Chevron case and other civil cases. The deposit slip also bears, beneath Mr. Zambrano’s signature, a national identity number of 0906018262. … I affirm once again that the $300 deposit made by Mr. Zambrano was payment for my services as Mr. Zambrano’s ghostwriter.

So let’s consider this exhibit, bearing in mind that the only purpose for offering it is to corroborate Judge Guerra’s story. If Guerra were a believable guy, there would be no need for this kind of corroboration.

Authenticity

“Authenticity” has a special meaning in the law of evidence. A document is authentic if it is what its proponent claims it is. So the deposit slip is authentic if it is a real deposit slip from Banco Pichincha, and not some document that Guerra somehow falsified. In order to be admissible in evidence, all that is required is evidence sufficient to support a finding that the item is what the proponent claims, but even if admissible, the finder of fact could decide that it is not in fact authentic. Roger Parloff, in our discussion on Friday, said that he thought the document was self-authenticating under FRE 902(3). I’m going to assume that that’s so, though I haven’t seen the certifications required under the Rule myself. Even if the deposit slips were not self-authenticating, I think Guerra’s testimony would be sufficient to authenticate them. So let’s stipulate that an authenticity objection will not keep the deposit slips out of evidence, even if at the end of the day the deposit slips are fakes.

Best Evidence

I think readers can judge this for themselves, but it seems pretty clear to me that the document is not really legible. Feel free to disagree. If I’m right about that, we have to ask whether Chevron should be allowed to offer the poor copy or to rely on Judge Guerra’s account of what the deposit slip says, or whether it should be required to produce the original—which is the best evidence of what the document says—or at least to produce an accurate duplicate. The relevant rule here is FRE 1002, which provides that “an original writing … is required in order to prove its content unless these rules or a federal statute provides otherwise.” An “original document” includes the document itself and “any counterpart intended to have the same effect by the person who executed or issued it.” Under FRE 1003, a “duplicate” is also admissible “unless a genuine question is rasied about the original’s authenticity or the circumstances make it unfair to admit the duplicate.” A “duplicate” is defined as “a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.” I assume but am not sure that this is an image of the original made sometime after the fact of the deposit (at least four days later, as the information at the top of the page is dated June 28). Is it an accurate reproduction of the original?

Suppose the answer to that question is no. The document still might be admissible under FRE 1004 if, for example, the original had been lost or destroyed, or the original “cannot be obtained by any available judicial process,” or the document “is not closely related to a controlling issue.” It’s hard to say if any of these exceptions would apply, since I don’t know what happened to the original, and since I don’t know what, if any, steps Chevron took in Ecuador to obtain the original. Anyway, there seems to be at least a potential issue here.

Hearsay

But let’s assume that Chevron gets over the authenticity and best evidence hurdles. The real issue is hearsay. The document is being offered to prove the truth of two assertions: first, an assertion by the bank that someone deposited $300 into Guerra’s account on such-and-so a day; and second, Zambrano’s assertion that he was the depositor. (There’s an issue about whether Zambrano has made such an assertion, which I’ll come to). The bank’s assertions are unquestionably hearsay, “a statement that the declarant [the bank] does not make while testifying at the current trial or hearing,” that Chevron “offers in evidence to prove the truth of the matter asserted in the statement.”

Chevron says the bank’s assertions come within the business records exception to the hearsay rule set out in FRE 803(6). What are the requirements to lay a foundation for admission of a business record?

  1. The record must be made “at or near the time by—or from information transmitted by—someone with knowledge.”
  2. The record must be “kept in the course of a regularly conducted activity of a business.”
  3. Making the record must be “a regular practice of that activity.”
  4. All three of the preceding conditions “must be shown by the testimony of the custodian or another qualified witness,” or by certain certifications not relevant here. 2
  5. “Neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.”

Guerra’s witness statement doesn’t really even attempt to lay this foundation. Even if it did, I think there’s a real question whether he is a “qualified witness” in these circumstances. Remember, the reason for introducing the deposit slip in the first place is to bolster Guerra’s credibility in light of his admitted prior bad acts. Does it make sense to allow the bad actor to bootstrap in this way? For similar reasons, I question whether the deposit slip should be admitted under the residual exception to the hearsay rule for statements with satisfactory “circumstantial guarantees of trustworthiness.” I see that Chevron has cited a case, United States v. Johnson, 971 F.2d 562, 571 (10th Cir. 1992), for the proposition that the account holder can supply the business record foundation. But even if Johnson were rightly decided, the account holder who authenticated the documents there was not an accused wrongdoer.

Even assuming that the bank deposit slip comes into evidence, what about Zambrano’s signature, which is the only thing really tying the $300 deposit to Zambrano? Is the signature itself a statement by Zambrano being offered for the truth of what it asserts, namely that Zambrano was the source of the money? If so, is it admissible as the statement of a co-conspirator? These seem like much closer questions to me, and ones that I wouldn’t want to opine on without working them through. But the answer to the prior question, namely whether the deposit slip comes in at all, seems like a much stronger point for Donziger and the LAPs, and if it’s right, then the court never needs to reach the questions about Zambrano’s signature.

What’s the point of all this? At least with respect to this one document, there are significant technical hurdles, in my view, to its admissibility. The same may or may not be true for the other corroborating documents—we’d have to look at those documents in the same way to be sure. So before we simply say that Judge Guerra’s account has been corroborated by documentary evidence, let’s just pause to ask whether the documentary evidence meets the standards of the Rules of Evidence. And let’s also remember that those rules, though highly technical, are there for a reason: to focus the finder of fact’s attention on the sworn testimony of people with personal knowledge of the facts and on reliable documents with a proper foundation rather than on hearsay, or partly illegible photocopies in place of originals, and so forth.

Notes:

  1. I say that it appears to be the same document because Guerra’s declaration says that Zambrano signed the deposit slip, but Chevron’s translation of the document I’ve linked to says, under the spot for the signature, “cashier signature and seal.” Ultimately I’m pretty comfortable that this is the right document, because Doug Cassel has described it as a document that bears Zambrano’s signature.
  2. It’s also possible to show these three conditions using the affidavit of the custodian or qualified witness. As far as I know Chevron hasn’t sought to do this by, for example, offering a certification from someone working at Guerra’s bank.

Case of the Day: Starski v. Kirzhnev

Today’s case of the day, Starski v. Kirzhnev (1st Cir. 2012), is the appellate decision on one of my favorite cases of the day—I wrote about the District Court decision in my post of March 21, 2011. Here was my description of the facts:

Vietnam owed a debt to Russia. Starski had connections in the Vietnamese government, and Kirzhnev had contracts in the Russian government. Starski’s claim was that he had a contract with Kirzhnev under which Kirzhnev was to use his contacts to facilitate a debt-swap transaction between the two countries. Upon the occurrence of the transaction, Kirzhnev was to pay Starski a commission. The transaction went through, but Starski alleged that Kirzhnev never paid. He sued him for breach of contract.

Before trial, the parties sparred over the admissibility in evidence of what purported to be a copy of an official document from the Moscow City Court evidencing Kirzhnev’s conviction on charges of bribing an official, illegal border crossing, and forgery. Starski sought to use the document to impeach Kirzhnev’s character for truthfulness. The court held that the document was inadmissible.

The case was tried to a jury, which found that there was no contract between the parties. The court entered judgment on on the verdict for Kirzhnev. Starski moved for a new trial on the grounds that the court had erred by excluding the evidence of Kirzhnev’s supposed criminal conviction. The court denied the motion, finding, as it had previously, that the document was not properly authenticated.

On appeal, Starski argued that the judge had abused his discretion by excluding the evidence of Kirzhnev’s supposed conviction. The panel, which included retired Justice David Souter, sitting by designation, agreed with Starski that the evidence of the conviction was relevant, because Kirzhnev’s credibility was at issue. Under FRE 609(a)(2): “a conviction within the prior ten years for a crime whose elements include a ‘dishonest act or false statement’ is not subject to ordinary Rule 403 balancing and ‘must be admitted’ for impeachment purposes.”

As I described in the prior post, there were issues with the authenticity of the document showing the conviction:

The document itself is, as the judge found, unclear. It does not appear to be a copy of the judgment of the Moscow court, but instead a response to an inquiry (“this is to confirm …”), signed by the secretary of the court, and apparently lacking a seal.

Judge Boudin, writing for the unanimous panel, wrote that the issue “has an opéra-bouffe air of unreality,” because Kirzhnev had never really denied the fact of the conviction, and because even without the evidence of the conviction, the jury “likely fathomed just what Kirzhnev was doing to earn his own commission.” But the judge’s application of the rules of evidence was correct: in the absence of testimony authenticating the document, it could be self-authenticating under FRE 902(3) only if “(1) signed or attested by a person who is authorized to do so, and (2) accompanied by a final certification—either by certain officials enumerated in the rules or pursuant to treaty—of the genuineness of the signature and official position of the signer or attester.” Starski failed to provide a final certification, and the panel didn’t have the time of day for Starski’s argument that the judge didn’t sufficiently warn him of the requirement of authentication before trial: “[T]he authentication requirements are set forth in the Federal Rules of Evidence and it is not the court’s job to remind counsel of the need to comply with them.” The court affirmed the judge’s evidentiary ruling.

I am still a little mystified why Starski did not just obtain an apostille and, under FRCP 44(a)(2)(A)(ii), avoid the need for a final certification.