Monday, September 15, 2014
Adam Liptak has this piece in today's New York Times on the Supreme Court's upcoming Fed. Rule of Evidence 606 case, Warger v. Schauers.
As I said, in this post when cert was granted, the precise bounds of the longstanding prohibition of impeaching a jury's verdict with juror testimony about deliberations is a meaty and unresolved question. But the "hopelessly amorphous" claim in this case (alleging that the juror testimony goes to another juror's lie in voir dire and not to impeach the verdict) makes it easy for the Court to dodge the harder questions. That's because the "lie" is not all that clear -- as I said back in March:
"[E]ssentially as I read the materials, the juror in this traffic case said she could be objective and it is alleged that her comments during deliberations (about her prior experience with traffic accidents [specifically an accident involving her daughter]) reflect a predisposition to the defense."
Liptak's reporting uncovers even deeper ambiguity in the factual record (and outside that record) about the basis for challenging the jury's verdict. He writes:
"[The defense affidavit] does not go very far in establishing that Ms. Whipple, the forewoman, had been dishonest during jury selection or that she would have been struck from the jury had she been more forthcoming."
And, being a reporter, he called Ms. Whipple to find out what's up. Probably an avid-Evidence Prof Blog reader, she echoed the theme of my earlier post, "sound[ing] surprised to be central to a Supreme Court case," but adding that the defense affidavit "was all wrong." Not only did she not exhibit a predispositon based on her daughter's traffic accident but, according to Ms. Whipple, “My daughter never had any accident.”
Remembrance of Things Past: 7th Circuit Finds Prior Inconsistent Statement Rule Applied to Forgetful Witness
Federal Rule of Evidence 801(d)(1)(A) indicates that
A statement that meets the following conditions is not hearsay:
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:
(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....
And, as the recent opinion of the Ninth Circuit in United States v. Cooper, 2014 WL 4476550 (7th Cir. 2014), makes clear, this "prior inconsistent statement" Rule doesn't only apply in cases involving overt inconsistencies (e.g., Witness testifies at the preliminary hearing that Dan shot Vince and then testifies at trial that Carl shot Vince). Instead, it also applies in the case of the "forgetful" witness.
Friday, September 12, 2014
Back in July, I posted an entry about State v. Hailes, 2014 WL 2191405 (Md.App. 2014), in which the Court of Special Appeals of Maryland found that a victim's eye blinking constituted a dying declaration. Did the Court of Appeals of Ohio reach the same conclusion in State v. Woods, 2014 WL 4437733 (Ohip App. 1 Dist. 2014)?
Thursday, September 11, 2014
Shenanigans at Bennigan's: 8th Circuit Finds Affidavit Admitting to Shooting Inadmissible Under Rule 804(b)(3)
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
So, what exactly constites "corroborating circumstances that clearly indicate its trustworthiness," and were those circumstances present in United States v. Henley, 2014 WL 4435845 (8th Cir. 2014)?
Wednesday, September 10, 2014
Assume that defendants are charged with defrauding investors. Should those defendants be able to present evidence that they had the money to repay the investors as circumstantial evidence that they had the ability to repay the investors? That was the question addressed by the Ninth Circuit in its recent opinion in its recent opinion in United States v. Sawyer, 2014 WL 4401951 (9th Cir. 2014).
Tuesday, September 9, 2014
Salamander's Wool: Supreme Court of Ohio Refuses to Apply Former Testimony Exception in Asbestos Case Against Heinz
Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination....
So, what exactly qualifies as a "predecessor in interest" under this "former testimony" exception? Many federal courts have interpreted the federal exception to cover even parties related by neither privity nor common property interests. See, e.g., Lloyd v. American Export Lines, Inc., 580 F.2d 1179 (3rd Cir. 1978). But how far did the Supreme Court of Ohio go in Burkhart v. H.J. Heinz Co., 2014 WL 4358396 (Ohio 2014)?
Monday, September 8, 2014
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of crime as provided in Evid. R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly 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.
So, let's say that a defendant is charged with violating a protective order in large part based upon the testimony of the person protected under the order. And let's say that the alleged victim had previously made allegations of domestic violence against the defendant, with those allegations later being dismissed. Should evidence of these dismissals be admissible under Ohio Rule of Evidence 608(B)? Let's take a look at the recent opinion of the Court of Appeals of Ohio, Second District in State v. Hunt, 2014 WL 4384140 (Ohio.App. 2 Dist. 2014).
Sunday, September 7, 2014
Friday, September 5, 2014
Federal Rule of Evidence 414(a) provides that
In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994 to increase the likelihood of sexual offense convictions, the Rule was accompanied by the was accompanied by the following statement from its sponsors:
The presumption is that the evidence admissible pursuant to these rules is typically relevant and probative, and that its probative value is not outweighed by any risk of prejudice.
Given this statement, some courts conclude that evidence admissible under Rule 414(a) (as well as Rules 413(a) and 415(a)) should almost never be excluded under Federal Rule of Evidence 403 while other courts conduct an independent Rule 403 analysis and determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. So, where does the Second Circuit stand on the issue?
Thursday, September 4, 2014
Crossing Over: California Court Cites Me in Upholding Decision to Preclude Cross-X Regarding Immigration Status
Back in 2010, I published the essay, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes, in the Northwestern University Law Review Colloquy. Today, it was nice to see that an appellate court used it to support its decision. Let's take a look at People v. Smith, 2014 WL 3752105 (Cal.App. 4 Dist. 2014).
Wednesday, September 3, 2014
Delaware Rule of Evidence 509(a) states that
The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law-enforcement officer or member of a legislative committee or its staff conducting an investigation.
That said, Delaware Rule of Evidence 509(c) allows for this informant privilege to be pierced
If it appears ... that an informer may be able to give testimony which would materially aid the defense.
So, how does a court determine whether the privilege is pierced in practice? Let's take a look at the recent opinion of the Superior Court of Delaware in State v. Johnson, 2014 WL 3943103 (Del.Super. 2014).
Tuesday, September 2, 2014
Dying Words: Supreme Judicial Court of Massachusetts Declines To Adopt "No Hope" Test For Dying Declarations
Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay
In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.
Massachusetts does not have codified rules of evidence, but it does have an Evidence Guide, and Section 804(b)(2) of that guide contains a similar exception:
In a prosecution for homicide, a statement made by a declarant-victim under the belief of imminent death and who died shortly after making the statement, concerning the cause or circumstances of what the declarant believed to be the declarant's own impending death or that of a co-victim.
As the language makes clear, Massachusetts seemingly deviates from federal law in two regards: (1) its dying declarations exception does not apply in civil cases; (2) its dying declarations exception does apply to statements regarding the cause of the imminent death of the declarant's co-victim. The recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Gonzalez, 469 Mass. 410 (Mass. 2014), doesn't deal with either of these deviations, but it does deal with the question of when a declarant believes his death to be imminent.
Monday, September 1, 2014
Liar, Liar: Supreme Court of Missouri Deems Polygraph Evidence Admissible to Prove Defendant Was Lying...Indirectly
Under Missouri law, it is well established that "[t]he results of a polygraph examination generally are inadmissible in Missouri criminal trials. Even the fact that a defendant took, refused to take, or was willing to take a polygraph is inadmissible." State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49 (Mo. banc 2006). And yet, the prosecution was allowed to make reference to the defendant taking a polygraph exam in State v. Collings, 2014 WL 4086313 (Mo. 2014). Why?
Friday, August 29, 2014
Federal Rule of Evidence 902(11) allows for the self-authentication of
The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.
So, what happens if a party does not give reasonable written notice of its intent to offer a business record into evidence but there is evidence that the opposing party had actual notice of this intent? That was the question addressed by the Second Circuit in its recent opinion in United States v. Komasa, 2014 WL 4233396 (2nd Cir. 2014).
Thursday, August 28, 2014
Where the Truth Lies, Take 2: Florida Defendant Offered Deal: Pass Polygraph, Charges Dropped; Fail Polygraph, Results Admissible
You are charged with murder, and the prosecutor offers you a deal. You take a polygraph test. If you "pass" the polygraph test, the charges against you will drop. If you "fail" the polygraph test, the case will proceed to trial, and the polygraph results will be admissible against you. Would you take the deal? Should the prosecutor be allowed to offer such a deal? Let's take a look at a case out of Coral Springs, Florida.
Wednesday, August 27, 2014
It is well established that (except in New Mexico), polygraph evidence is generally admissible. But assume that a defendant fails a polygraph exam and then makes a confession. And assume that the defendant claims at trial that he confessed based upon threats as well as promises of lenient treatment by the prosecutor. Should the prosecution be able to rebut such a claim by making reference to the polygraph exam? That was the question addressed by the recent opinion of the Appellate Court of Illinois, First Division, in its recent opinion in People v. Gater, 2014 IL App (1st) 101982-U (2014).
Tuesday, August 26, 2014
Kenneth S. Klein of California Western School of Law recently posted:
on SSRN (click the title to go to the abstract). The piece adroitly breaks down the epic case of Mutual Life Ins. Co. v. Hillmon, arguing that an analytical error in the 1892 case still reverberates in FRE 803(3) rulings today. Worth reading for those interested in this familiar dilemma.
An ancillary point -- Klein references four law review articles dedicated to early criticism of the Hillmon case (spanning 1893 to 1955). Three of the four appeared in the Harvard Law Review -- the fourth "fell" to Virginia. Hard to imagine a time when doctrinal Evidence scholarship was jumping out of the HLR submission pile!
It is well established that a witness may not take the witness stand and testify that another witness appeared to be credible or incredible while testifying at trial. So, for instance, a deception expert could not take the witness stand after the defendant testifies and claim that based upon microexpressions, etc., the defendant appeared to be lying (or telling the truth). But can a witness take the stand and testify regarding the demeanor of a prior witness when she took the stand? That was the question addressed by the Court of Appeals of Ohio, Sixth District, in its recent opinion in State v. Donaldson, 2014 WL WL 4160799 (Ohio.App.6th 2014).
Monday, August 25, 2014
Expertly Executed: Court of Appeals of Kentucky Opinion Fills Rule 615(3) Void in the Bluegrass State
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:
(1) A party who is a natural person;
(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or
(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.
As the Court of Appeals of Kentucky noted in its recent opinion in McAbee v. Chapman, 2014 WL 4115907 (Ky. 2014), "[o]ur Supreme Court has not spoken in detail regarding the application of KRE 615(3). SO, how did the court rule in Chapman?
Friday, August 22, 2014
According to an article in the Hill Country News,
Greg Kelley’s new defense attorney Keith Hampton filed a motion for a new trial last week that says the 19-year-old former Leander High School football player was denied a fair trial "because 12 jurors never concluded he was guilty beyond a reasonable doubt."
According to a sworn affidavit filed with the motion for a new trial, one of the jurors who convicted Kelley states that, "I thought the prosecution’s case against Greg Kelley was trash… I was not persuaded Greg Kelley was guilty beyond a reasonable doubt."
Speaking to the media outside the Williamson County Courthouse last Wednesday morning, Jake Brydon — one of Kelley’s most vocal supporters —said that some of the jurors simply went along with the others in voting for conviction to avoid being sequestered. Brydon said the juror’s affidavit states that the jurors who did vote to convict Kelley did so not because of reasons of evidence or proof demonstrated in court, but because of Kelley’s mannerisms or how his defense attorney presented herself.
So, how likely is it that Kelley will be successful? Not very.