EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Friday, April 18, 2014

NYT on Police Investigation of Rape Allegation Against Florida State Quarterback

This NYT story (published this week) is fascinating not only in terms of the window it opens onto a number of criminal justice and societal controversies, but also as a lesson in the types of evidence now available to police investigating crimes (particuarly those involving young people).  Here, the police could have (but, according to the story, largely did not) accessed video footage from the bar where the incident began, the text messages and social media posts of the students who witnessed the incident, and a videotape made by one of the friends of the accused.

April 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 17, 2014

Notable Forthcoming Evidence Scholarship: "Inefficient Evidence"

Alex Stein (Cardozo) recently posted “Inefficient Evidence” (forthcoming Alabama Law Review) to SSRN.  The article offers a unifying theory of evidence that, in Stein’s view, justifies (at least to some degree) the American evidence rules.  The key concept in this theory is the “signal to noise ratio” or SNR.  Evidence whose significance to the case is difficult to evaluate has a low SNR (the signal is difficult to filter from the noise) and is, Stein argues, rightly excluded.  Evidence that is more easily evaluated has a high SNR (its signal is easier to filter out from the noise) and should be admitted.  The SNR ratio resonates with familiar Rule 403 conceptions, but Stein relies on it to explain evidence law more broadly, including the hearsay rules, the prohibition on character evidence, and more.

What I especially like about Stein’s piece is that although it sketches a very high-level theory of evidence, it nevertheless grapples with concrete examples, taking on discrete hearsay exceptions for example and explaining why they are (or are not) justified in light of SNR.  Of course, this also makes his argument sufficiently tangible that it can be understood . . . and critiqued. 

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April 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Next Best Thing: Court of Appeals of North Carolina Finds Testimony About Deleted Voicemails Admissible

North Carolina Rule of Evidence 1002, North Carolina's version of the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

That said, North Carolina Rule of Evidence 1004 provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if:

(1) Originals Lost or Destroyed. - All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

(2) Original Not Obtainable. - No original can be obtained by any available judicial process or procedure; or

(3) Original in Possession of Opponent. - At a time when an original was under the control of a party against whom offered, he was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and he does not produce the original at the hearing; or

(4) Collateral Matters. - The writing, recording, or photograph is not closely related to a controlling issue. 

As the recent opinion of the Court of Appeals of North Carolina in State v. Barnette, 2014 WL 1464155 (N.C.App. 2014), makes clear, Rule 1004(1) explains why most evidence is not excluded under the Best Evidence Rule.

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April 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 15, 2014

Died in South Dakota, Take 2: Tests of Remains Indicate Teens in David Lykken Case Died in Car Accident

Back in 2008, I posted an entry about a case out of South Dakota in which David Lykken was indicted in connection with the disappearance of two teens in 1971. The charges against Lykken were eventually dropped after the jailhouse informant who allegedly recorded Lykken confessing to killing the teens admitted to faking the coversation. Today, that case finally got a postscript. According to an article on the case,

Two Vermillion, S.D., teens missing for nearly 43 years died in a car crash, not from foul play, authorities said Tuesday.

Pamella Jackson, and Cheryl Miller, both 17, were last seen driving to a party at a Union County gravel pit in a 1960 Studebaker Lark on May 29, 1971

Their car was found partially submerged upside down in a creek several miles southwest of Alcester, S.D., on Sept. 13, 2013. Two sets of skeletal remains inside the car were sent to Texas for testing.


April 15, 2014 | Permalink | Comments (1) | TrackBack (0)

United We Stand: New Jersey Proposes Unified Mental Health Services Provider Evidentiary Privilege

According to an article in the New Jersey Law Journal,

A new rule being proposed in New Jersey would create a “unified mental health service provider evidentiary privilege”—an effort to reorganize the present patchwork of privileges that offer varying degrees of protection to different professionals.

The  Supreme Court Committee on the Rules of Evidence released the draft proposal on Wednesday and asked for comments by June 2.

The draft, modeled on Rule 503 of the Uniform Rules of Evidence Act, lists specific professionals who would be covered by the unified privilege.   

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April 15, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, April 14, 2014

Intriguing Empirical Study of Prior Conviction Impeachment

Kathryn Stanchi (Temple) and Deirdre Bowen (Seattle) recently posted a paper on SSRN summarizing the findings of an experiment they ran on the impact of prior convictions in a mock civil trial. 

This is Your Sword: How Damaging are Prior Convictions to Plaintiffs in Civil Trials? (forthcoming Washington Law Review)

The experiment is cleverly constructed and I recommend the paper to those interested in this topic.  I will add a couple thoughts because while the abstract and some of the language in their paper can be read to suggest that their findings undermine conventional wisdom, I think the study (at least arguably) supports the typical views of many who have studied prior convictions impeachment in the criminal trial context – including myself (see Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289 (2008))

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April 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Character Evidence in the Oscar Pistorius Trial?

Those following the high profile South African murder prosecution of Oscar Pistorius, likely noticed that the trial includes proof of a number of instances of gun violence unrelated to the charged murder.  Apparently this evidence is admissible to prove other charges that have been joined with the more prominent charge that Pistorius intentionally shot his girlfriend (rather than accidentally mistaking her for an intruder as he claims). 

 As explained in the New York Times,

 “Apart from the murder charge, Mr. Pistorius also faces charges related to firearms possession, and on Thursday the prosecution sought to portray him as a trigger-happy gun enthusiast whose loaded weapon was never far away, even when he was swimming. In one case, he is accused of shooting a gun out of the open sunroof of a car. In another, he is accused of firing a handgun in a busy restaurant when children were nearby.”

I am no expert on South African law, but assuming South Africa, like the US (see Fed. R. Evid. 404), bars character inferences (e.g., evidence intended to show that Pistorius was “trigger happy” or violent offered to prove he is the kind of person who would, in a fit of rage, kill his girlfriend), the joinder of these “firearms possession” charges is an important piece of the trial – as it invites the (non-jury) factfinders to draw character inferences that would be unavailable had the murder charge been tried alone.

April 14, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 10, 2014

Co-Conspirator vs. Hired Help: Should the Distribution of Proceeds Mark the End of a Conspiracy?

 Federal Rule of Evidence 801(d)(2)(E) provides that

A statement that meets the following conditions is not hearsay:....

(2) An Opposing Party’s Statement. The statement is offered against an opposing party and:....

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

So, when exactly does a conspiracy end for Rule 801(d)(2)(E) purposes? According to most (all?) courts, including the Tenth Circuit in United States v. Morgan, 2014 WL 1379207 (10th Cir 2014), the answer is "not until after the proceeds of the crime are divided." But does that make sense?

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April 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 9, 2014

Essential Reading: Court of Appeals of Arizona Finds Co-Workers Couldn't Testify About Defendant's Peaceful Acts

Arizona Rule of Evidence 405 reads as follows:

Rule 405. Methods of Proving Character  

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, or pursuant to Rule 404(c), proof may also be made of specific instances of that person's conduct.

So, assume that a defendant is charged with aggravated assault. Can the defendant call two co-workers to testify regarding specific incidents in which he peacefully talked to others with whom he was having a dispute to prevent escalating the issue? According to the recent opinion of the Court of Appeals of Arizona, Division 1, in State v. Oman, 2014 WL 1329156 (Ariz.App. Div. 1 2014), the answer is "no."

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April 9, 2014 | Permalink | Comments (2) | TrackBack (0)

Tuesday, April 8, 2014

Piercing the Shield: Court of Appeals of Minnesota Finds Rape Shield Violation in Clergy Abuse Case

Federal Rule of Evidence 412, the federal Rape Shield Rule,  deems evidence of a victim's sexual predisposition and other sexual behavior inadmissible, subject to the following exceptions in a criminal case:

(1) Criminal Cases. The court may admit the following evidence in a criminal case:  

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;  

(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and  

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

As the recent opinion of the Court of Appeals of Minnesota in State v. Wenthe, 2014 WL 1344193 (Minn.App. 2014), makes clear, the exceptions to Minnesota's Rape Shield Rule are a bit different. But how different?

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April 8, 2014 | Permalink | Comments (1) | TrackBack (0)

Monday, April 7, 2014

Anybody Want a Peanut: Peanut Butter Salmonella Trial Raises Questions Regarding Admissibility of ADHD Testimony

Federal Rule of Evidence 702 states that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:  

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;  

(b) the testimony is based on sufficient facts or data;  

(c) the testimony is the product of reliable principles and methods; and  

(d) the expert has reliably applied the principles and methods to the facts of the case.

Do you remember the salmonella outbreak in 2008-2009 that was the result of tainted peanut butter and caused nine to die and 700 others to become ill? Well, a trial involving that outbreak is gearing up, and a question has arisen regarding the admissibility of expert testimony under Rule 702. But that expert testimony doesn't concern the actual outbreak itself; it relates to the alleged ADHD of one of the defendants.

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April 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 3, 2014

Two Weeks Notice: Court of Appeals of Mississippi Finds Defendant Failed to Comply With Rape Shield Rule

Mississippi Rule of Evidence 412 generally precludes the admission of an alleged victim's past sexual behavior in a sexual assault case, subject to a few exceptions, including evidence of prior sexual acts between the victim and the accused. If, however, the defendant wants to present such evidence, he must comply with Mississippi Rule of Evidence 412(c), which reads as follows:


(1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim.  

(2) The motion described in paragraph (1) shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subdivision (b), the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses including the alleged victim, and offer relevant evidence. Notwithstanding subdivision (b) of Rule 104, if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue.  

(3) If the court determines on the basis of the hearing described in paragraph (2) that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined. 

These requirements were the problem for the defendant in McNair v. State, 2014 WL 1189931 (Miss.App. 2014).

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April 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 2, 2014

Out Like a Lion: Supreme Court of Pennsylvania Refuses to Hear Jerry Sandusky's Appeal

Today, in a per curiam order, the Supreme Court of Pennsylvania denied Jerry Sandusky's Petition for Allowance of Appeal. In other words, the Pennsylvania Supremes will not hear Sandusky's appeal from his convictions for child molestation. Looking at some of the arguments made by Sandusky, it is easy to see why the Court reached this conclusion. One of Sandusky's main arguments was that the trial court erred by issuing the following jury instruction:

Now, the defense has offered evidence tending to prove that the defendant is of good character. I'm speaking of the defense witnesses who testified that the defendant has a good reputation in the community for being law abiding, peaceable, nonviolent individual.  

The law recognizes that a person of good character is not likely to commit a crime which is contrary to that person's nature. Evidence of good character may by itself raise a reasonable doubt of guilt and require a verdict of not guilty.  

So you must weigh and consider the evidence of good character along with the other evidence in this case and if on the evidence you have a reasonable doubt of the defendant's guilt, you may find him not guilty....But in making that determination, you may consider evidence of good character which you believe to be true.

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April 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 1, 2014

Let's Go Places: Toyota Lawsuit & Employee and Party Admissions

According to the article, Toyota case shows it’s hard to prosecute execs,

Efforts to conceal the extent of dangerous car defects at Toyota Motor Corp. were so pervasive, prosecutors say, that an exasperated employee at one point warned that ‘‘someone will go to jail if lies are repeatedly told.’’  

Yet no one has gone to jail, nor is anyone likely to.

The reason? The rules of evidence and more specifically the rule against hearsay.

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April 1, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, March 31, 2014

Ray Rice & Marital Privilege: Why Neither of New Jersey's Spousal Privileges Will Protect the Running Back

According to ESPN, "Baltimore Ravens running back Ray Rice and Janay Palmer were married Friday...." What makes this both sad and interesting is that"[t]he marriage came one day after Rice was indicted by a grand jury on third-degree aggravated assault for allegedly striking Palmer unconscious." ESPN legal analyst Lester Munson is quoted in the article as saying that

"If the wife claims a spousal privilege, it is likely that she would not be forced to testify against him."..."The prosecution would face the prospect of proving the assault without any testimony from the victim. It is possible, but it would be extremely difficult. Unless a prosecutor has a burning desire to become famous in a case involving Rice, the prosecutor may be likely to invest his time in other, more productive activities."

But is that actually the case?

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March 31, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, March 27, 2014

The Last Frontier: Alaska Bill Would Lead to Jurors Being Informed of Right of Jury Nullification

A couple of years ago, New Hampshire became, as far as I know, the first state that allows jurors to be informed of the right of jury nullification: the power of jurors to render a verdict inconsistent with the evidence (e.g., finding a defendant "not guilty" of possessing a small amount of marijuana despite the evidence proving his guilt beyond a reasonable doubt). Now, it looks like Alaska might follow suit.

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March 27, 2014 | Permalink | Comments (4) | TrackBack (0)

Wednesday, March 26, 2014

Nearly Two Billion Reasons to Master Those Evidence Rules

Anna Walsh at FDA Law Blog highlights an interesting evidentiary ruling at the heart of the Arkansas Supreme Court’s reversal last week of a $1.8 billion Medicaid fraud / false advertising judgment won by Arkansas against various defendants including Johnson & Johnson.

Three points.  (The first and third being the most interesting for those just passing through.)

First, this case provides 1.8 billion reasons to ignore those who downplay the significance of evidence rulings!  The evidence rules matter: just ask Johnson & Johnson.

Second, the appellate decision (available at the FDA Law Blog) illustrates the application of a somewhat technical modification of the business records rule in some states, like Arkansas.

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March 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Palmetto State: South Carolina Courts Don't Apply Daubert...Quite

For decades, the D.C. Circuit's opinion in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), ruled the roost in terms of the admissibility of expert opinion testimony. Pursuant to Frye, a court was only to admit expert opinion testimony if it was based upon a technique, technology, etc. that had "general acceptance" in the relevant expert community.

In 1993, however, in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court found that this Frye test no longer applied in cases governed by the Federal Rules of Evidence. In Daubert, the Court created the idea of judicial gatekeeper and held that in determining whether expert testimony is based upon reliable principles and methods under Federal Rule of Evidence 702, federal judges can consider factors such as

whether the "technique can be (and has been) tested," "[w]hether it has been subjected to peer review and publication," the "known or potential rate of error," "whether there are standards controlling the technique's operation," and "whether the...technique enjoys general acceptance within a relevant scientific community."

As I have previously noted, as of 2010, 30 states had "adopted or applied the Daubert standard to determine whether to admit a witness to testify as an expert in a given field." Mark R. Nash, Are We There Yet?: Gatekeepers, Daubert, and an Analysis of State v. White, 61 S.C. L. Rev. 897, 897 n.6 (2010). These states were:

(1) Alaska, (2) Arkansas, (3) Colorado, (4) Connecticut, (5) Delaware, (6) Georgia, (7) Hawai'i, (8) Idaho, (9) Indiana, (10) Iowa, (11) Kentucky, (12), Louisiana, (13) Maine, (14) Massachusetts, (15) Michigan, (16) Mississippi, (17) Montana, (18) Nebraska, (19) New Hampshire, (20) New Mexico, (21) Ohio, (22) Oklahoma, (23) Oregon, (24) Rhode Island, (25) South Dakota, (26) Tennessee, (27) Texas, (28) Vermont, (29) West Virginia, and (30) Wyoming.

South Carolina is not one of these states. So, what test does it apply?

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March 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 25, 2014

The Inverse Relationship between the Constitutionality and Effectiveness of New York City 'Stop and Frisk'

Not necessarily evidence related, but for those interested, I just posted the above-titled forthcoming article about NYC Stop and Frisk on SSRN.  It argues, that "whatever [crime-fighting] success [NYC] stop-and-frisk achieves . . . relies to a significant degree on the very factors that render it unconstitutional."  This conclusion implicates the efforts of policy makers in New York City who are, as we speak, attempting to "reform" the practice -- as well as police in other cities striving to duplicate the city's crime fighting success.

Here is the abstract:

New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all of the strands – falling crime, reduced incarceration and aggressive policing – analyzing the hazy historical and empirical connections between them, and evaluating the legal implications of a crime-fighting policy that might “work” to reduce both crime and incarceration precisely because of the factors that render it unconstitutional.

Here is the link.

March 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Lord(s) of War?: Southern District of New York Uses Rule 704 to Find No Error in Failing To Call Expert

Federal Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

The recent opinion of the United States District Court for the Southern District of New York in Moreno-Godoy v. United States, 2014 WL 1088300 (S.D.N.Y. 2014), raises an interesting question with regard to Rule 704(b): Does the simple fact that some portion of an expert's opinion might run afoul of Rule 704(b) justify an attorney in not calling him as a witness?

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March 25, 2014 | Permalink | Comments (0) | TrackBack (0)