EvidenceProf Blog

Just Forget It: Oklahoma Court Finds Calendar Entry About Nike Air Max 2 Shoe Purchase Admissible As A Recorded Recollection In Christmas Related Case

Like Federal Rule of Evidence 803(5), 12 O.S.2001 Section 2803(5) provides an exception to the rule against hearsay for:

A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.  

As the recent opinion of the Court of Criminal Appeals of Oklahoma in Sanchez v. State, 2009 WL 4797497 (Okla.Crim.App. 2009), makes clear, the exact wording of this rule is very important. In order for a "recorded recollection" to be admissible, the witness does not need a significant lack of recollection, just an insufficient recollection to testify fully and accurately.

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Later On, We'll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions

Like its federal counterpart, Indiana Rule of Evidence 801(d)(2)(E) provides that

[a] statement is not hearsay if...[t]he statement is offered against a party and is... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

As the text of this Rule makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated. And that is exactly what the Court of Appeals of Indiana found in determining that the trial court erred in admitting an alleged co-conspirator admission in its recent opinion in French v. State, 2009 WL 4842607 (Ind.App. 2009). I thus agree with the court's conclusion on that issue, but I am not sure that I agree with the court's conclusion that this error was harmless.

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Mistaken Identification: Supreme Court Of Utah Reverses Past Precedent, Allows Expert Testimony On Inaccuracy Of Eyewitness Identifications

I have done several posts on this blog (here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

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The Best Of Everything, Take 3: Evidence Professors Submit Amicus Brief In Best Evidence Case

A few days ago, I posted an entry about the filing of a petition for a writ of certiorari with the Supreme Court in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), the case in which I think that the Fourth Circuit made an erroneous Best Evidence ruling. Thereafter, Matthew R. Segal, the Assistant Public Defender who filed the petition, forwarded me an amicus brief submitted in support of the petition by Georgetown University Law Center  Professor Paul Rothstein and University of California, Berkeley, School of Law Professor Eleanor Swift. I strongly agree with the points made in the brief and have provided a link below from which reader can download the brief.

Download Amicus Brief

-CM

Make Me Whole, Take 4: Court Of Appeals Of Minnesota Calls Out Supreme Court Of Minnesota Over "Whole Person" Approach To Impeachment

Wow! I have railed against Minnesota's "whole person" approach to the felony conviction impeachment rule on several occasions, with my my most recent post on the topic coming a few days ago. Well, it appears that someone agrees with me. That someone? The Court of Appeals of Minnesota in its recent opinion in State v. Peters, 2009 WL 4795971 (Minn.App. 2009).

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Incomplete Ruling: Third Circuit Opinion Implies That Violations Of Rule 106 Can Never Lead To A Reversal On Appeal

Federal Rule of Evidence 106, the rule of completeness, provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

There is a split among courts as to whether this is merely a rule regarding timing or also a rule regarding admissibility. In other words, all courts agree that when a party introduce a writing or recorded statement or a part thereof, the Rule allows the opposing party to contemporaneously present any other part or any other writing or recorded statement, as long as the part or statement is otherwise admissible. Some courts claim, however, that the Rule also allows for the admission of any other part or any other writing or recorded statement, regardless of whether the part or statement is otherwise admissible. In other words, these courts find that the Rule can transform otherwise inadmissible evidence into admissible evidence. Other courts disagree with this conclusion, but, as noted, all courts agree that the Rule is a rule regarding timing. And yet, in its recent opinion in United States v. Evans, 2009 WL 4810545 (3rd Cir. 2009), the Third Circuit seemed to imply that an erroneous ruling precluding a party from contemporaneously presenting evidence can never form the basis for a reversal.

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Article Of Interest: No Strict Rules Of Evidence In Labor And Employment Arbitration, By Professor Michael Z. Green

I have written several previous posts on this blog about cases in which the Federal Rules of Evidence or state counterparts do not apply (see, e.g., here, here, here, here, and here). What I have found in most of these cases, though, is that the judge will still look to the principles underlying the rules of evidence in making evidentiary rulings. For instance, in disability adjudications, many Administrative Law Judges make an inquiry similar to the Rule 702 inquiry in determining whether to admit vocational expert testimony (although there is a split on the issue). In a Board of Veterans' Appeals case from earlier this year, a court looked to Federal Rule of Evidence 803(7) for persuasive guidance on an evidentiary issue. And, under the residuum rule, many administrative judges will end up applying the hearsay rules to determine the propriety of administrative proceedings.

Before reading the recent terrific article, No Strict Rules of Evidence in Labor and Employment Arbitration, 15 Tex. Wesleyan L. Rev. 533 (2009), by Texas Wesleyan University School of Law Professor Michael Z. Green, I would have expected that the same held true in labor and employment arbitration proceedings. As the article makes clear, however, this has not been the case, and arbitrators need to change their ways.

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Make Me Whole, Take 3: Minnesota Opinion Involves Yet Another Disastrous Application Of Minnesota's "Whole Person" Rationale

I have done a couple of previous posts (here and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. Atkinson, 2009 WL 4573726 (Minn.App. 2009).

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Not So Refreshing, Take 2: Minnesota Opinion Reveals Difference Between Minnesota And Federal Rule of Evidence 612

Federal Rule of Evidence 612 provides that if a "writing" is used to refresh a witness' recollection,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

The recent opinion of the Court of Appeals of Minnesota in State v. Mashek, 2009 WL 4573703 (Minn.App. 2009), reveals an important distinction between Minnesota Rule of Evidence 612 and its federal counterpart.

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Not So Refreshing: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule of Evidence 612

Federal Rule of Evidence 612 indicates that:

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Kirk, 2009 WL 4547584 (N.J.Super.A.D. 2009), makes clear, there is an important distinction between New Jersey Rule of Evidence 612 and its federal counterpart.

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The Best Of Everything, Take 2: Federal Public Defender Files Petition For Writ Of Certiorari With Supreme Court In Best Evidence Case

Back in June, I posted an entry about the Fourth Circuit's recent opinion in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009). In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack cocaine, using and carrying one or more firearms during and in relation to a drug-trafficking crime, and possessing one or more firearms, having been previously convicted of a felony. To prove the interstate nexus element of the felon in-possession count, the government presented the testimony of Special Agent Andrew Cheramie of the ATF that firearms recovered from Smith's apartment had been manufactured in states other than North Carolina. Smith's attorney objected to the proposed testimony of Special Agent Cheramie on the ground that it would violate Federal Rule of Evidence 1002. He argued that Cheramie's testimony, which was based on written reference materials and ATF computer databases, none of which were offered into evidence, violated the Best Evidence Rule. The district court overruled the objection and allowed Cheramie to testify without requiring him to introduce any reference materials into evidence. 

The Fourth Circuit subsequently affirmed, and I disagreed with its holding, concluding that:

Clearly, the government sought to prove the contents of the writings and other materials from which Cheramie learned that firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. As Smith noted, Cheramie had no independent personal knowledge of where those firearms were manufactured. Instead, his knowledge of where those firearms were manufactured was dependent on the writings and other materials. Thus, his testimony was, in effect, proving the contents of the writings and other materials because he had no personal knowledge of where the firearms were manufactured. Accordingly, Cheramie's testimony triggered the Best Evidence Rule, and the Fourth Circuit's conclusion was erroneous.   

Well, yesterday, I got an e-mail from Matthew R. Segal, an Assistant Public Defender, who informed me that he has filed a petition for writ if certiorari with the Supreme Court for Smith. You can download a copy of the petition by clicking on the link below:

 

Download Smith_Cert_Petition-As_Filed[1]

I agree with the points made in the petition and continue to believe that Cheramie's testimony was received in violation of the Best Evidence Rule. According to Segal, "The government has waived its right to file an opposition brief, so the case has been distributed for the Supreme Court's conference of January 8, 2010."

-CM

Waiving Away Uniformity: D.C. Opinion Reveals Why Rule 502 Will Not Harmonize Privilege Waiver Practices

The new Federal Rule of Evidence 502(b) provides that:

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

1. the disclosure is inadvertent;

2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and

3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

The new Rule was intended to bring "uniformity across the circuits to their once differing treatment of the effect of certain inadvertent disclosures of privilege materials." As can be seen from the recent opinion of the United States District Court for the District of Columbia in Amobi v. District of Columbia Department of Corrections, 2009 WL 4609593 (D.D.C. 2009), however, the Rule is unlikely to bring the desired uniformity.

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Curiosity Killed The Jury, Take 3: Baltimore Sun Lists Several Instances Of Technology-Assisted Jury Misconduct

Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Later that month, I posted an entry about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing.  In May, I  posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. And in November, I posted an entry about three more instances of curiosity killing the jury. More recently, an article in Sunday's Baltimore Sun lists several other instances of such jury misconduct.

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Forfeit Victory: Florida Opinion Reveals That Florida Has Not Adopted The Forfeiture By Wrongdoing Doctrine

Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing doctrine, provides an exception to the rule against hearsay for 

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

As the recent opinion of the District Court of Florida, First District, in Chavez v. State, 2009 WL 4591048 (Fla.App. 1 Dist. 2009), makes clear, however, the common-law hearsay exception of forfeiture by wrongdoing is not authorized under Florida's Evidence Code, unlike numerous other states' evidence codes.

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Hardwood, Hard Coaching: Sixth Circuit Finds Evidence Covered By Rule 407 In Corporal Punishment Appeal

Federal Rule of Evidence 407 provides that:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Usually, this rule applies when an instrumentality causes an injury and the defendant subsequently makes the instrumentality safer. Sometimes, however, the rule applies in other factual contexts. As I noted in a recent post, the rule also applies to changes to allegedly discriminatory hiring practices. As the recent opinion of the Sixth Circuit in Nolan v. Memphis City Schools, 2009 WL 4723166 (6th Cir. 2009), makes clear, the rule also applies to other employment changes.

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The Areas Of My Expertise: Fifth Circuit Reverses Expert Witness Ruling In Hurricane Katrina Related Appeal

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As the Advisory Committee Note to the amendment to Rule 701 makes clear, Rule 701(c) was added in the wake of the Supreme Court's opinion in Daubert v. Merrdll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." The Advisory Committee Note goes on to indicate, however, that

most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert. See, e.g., Lightning Lube, Inc. v. Witco Corp. 4 F.3d 1153 (3d Cir. 1993) (no abuse of discretion in permitting the plaintiff's owner to give lay opinion testimony as to damages, as it was based on his knowledge and participation in the day-to-day affairs of the business). Such opinion testimony is admitted not because of experience, training or specialized knowledge within the realm of an expert, but because of the particularized knowledge that the witness has by virtue of his or her position in the business. The amendment does not purport to change this analysis.

Despite the latter portion of the Note, in its recent opinion in Pendarvis v. American Bankers Ins. Co. of Florida, 2009 WL 4250686 (5th Cir. 2009), the Fifth Circuit found that a contractor could not testify as a lay witness about the estimated cost to repair a mobile home damaged by Hurricane Katrina.

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Allow Me To Demonstrate: California Case Reveals Lack Of Standards Governing Admissibility of Demonstrative Evidence

In contrast to testimonial or documentary evidence, demonstrative evidence is "principally used to illustrate or explain other testimonial, documentary or real proof, or judicially noticed fact. It is, in short, a visual (or other) sensory aid." A diagram of the scene of a crime drawn on a board by a percipient witness who is present at trial to testify would be classic demonstrative evidence. Whereas the diagram illustrates the witness' testimony, it should, technically speaking, add nothing further. In this way and despite its title as "evidence," demonstrative evidence is more of a visual aid than evidence per se because it merely illustrates or "demonstrate[s]" a witness' testimony. Jessica M. Silbey, Judges as Film Critics: New Approaches to Filmic Evidence, 37 U. Mich. J.L. Reform 493, 503 (2004).

Perhaps the most (in)famous example of demonstrative evidence was the failed glove experiment in the O.J. Simpson trial. But what standards governs the admissibility of demonstrative evidence? As the recent opinion of the Court of Appeal, Third District, California, in People v. Bonde, 2009 WL 4264324 (Cal.App. 3 Dist. 2009), makes clear, the answer is "not many." 

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Conduit For Sale: Fourth Circuit Finds No Problem With Experts Relying Upon Testomonial Hearsay As Long As They Are Not Mere Conduits

Federal Rule of Evidence 703 provides that:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Meanwhile, the Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." So, what should courts do when experts for the prosecution plan to provide opinion testimony based upon evidence that itself would violate the Confrontation Clause? That was the question addressed by the Fourth Circuit in its recent opinion in United States v. Johnson, 2009 WL 4348845 (4th Cir. 2009).

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Wholesale Changes: Supreme Court Of California Disapproves Of Prior Precedent In Attorney-Client Ruling In Costco Appeal

California Evidence Code Section 954, California's attorney-client privilege, indicates in relevant part that

Subject to Section 912 and except as otherwise provided in this article, the client, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer if the privilege is claimed by:

(a) The holder of the privilege;

(b) A person who is authorized to claim the privilege by the holder of the privilege; or 

(c) The person who was the lawyer at the time of the confidential communication, but such person may not claim the privilege if there is no holder of the privilege in existence or if he is otherwise instructed by a person authorized to permit disclosure.

In Costco, 

In June 2000, Costco Wholesale Corporation..., which operates warehouse-style retail establishments throughout California, retained the law firm of Sheppard, Mullin, Richter & Hampton to provide legal advice regarding whether certain Costco warehouse managers in California were exempt from California's wage and overtime laws. Attorney Kelly Hensley, an expert in wage and hour law, undertook the assignment, ultimately producing for Costco [a] 22-page opinion letter....The letter followed conversations held by Hensley with two warehouse managers Costco had made available to her. Costco, the managers, and Hensley understood the communications between the managers and Hensley were, and would remain, confidential. Similarly, Costco and Hensley understood that Hensley's opinion letter was, and would remain confidential.

Subbsequently, Costco employees filed a class action against Costco, "claiming that from 1999 through 2001 Costco had misclassified some of its managers as 'exempt' employees and therefore had failed to pay them the overtime wages they were due as nonexempt employees." Those plaintiffs then sought to compel discovery of Hensley's opinion letter, and "Costco objected on the grounds the letter was subject to the attorney-client privilege and the attorney work product doctrine." The "[p]laintiffs disagreed, arguing both that the letter contained unprivileged matter and that Costco had placed the contents of the letter in issue, thereby waiving the privilege." Thereafter, "[t]he trial court, over Costco's objection, ordered a discovery referee to conduct an in camera review of Hensley's opinion letter to determine the merits of Costco's claims of attorney-client privilege and work product doctrine."

This ruling prompted Costco's appeal and led to the Supreme Court of California to reverse and disapprove of prior California precedent.

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The Shrink(ing) Privilege, Take 2: New York Times Article Reports That Exceptions To Military Psychotherapist-Patient Privilege Are Hindering Therapy

Although it was ultimately rejected, Proposed Federal Rule of Evidence 504 set forth a psychotherapist- patient privilege, under which

A patient has a privilege refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purposes of diagnosis or treatment of his mental or emotional condition, including drug addiction, among himself, his psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.

Even though the proposed Rule was rejected, the Supreme Court later recognized the existence of a federal psychotherapist-patient privilege in its 1996 opinion in Jaffee v. Redmond, 518 U.S. 1 (1996). Because the Court left the scope of the privilege and its exceptions for later determination, courts vary in the number of exceptions that they carve out of the psychotherapist-patient privilege, with some widely adopted ones being the "crime-fraud" and "dangerous-patient" exceptions. See, e.g., Deirdre M.Smith,An Uncertain Privilege:  Implied Waiver and the Evisceration of the Psychotherapist-Patient Privilege in Federal Courts, 58 DePaul L. Rev. 79, 96 (2009). As a recent article in the New York Times notes, Military Rule of Evidence 513, the military psychotherapist-patient privilege, contains more exceptions than the federal psychotherapist-patient privilege, and, according to some, it is hindering therapy.

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