Monday, December 9, 2013
Text(ual) Analysis: Court of Appeals of Minnesota Addresses Admissibility of Forwarded Text Messages
Minnesota Rule of Evidence 901(a) provides that
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
Meanwhile, Minnesota Rule of Evidence 1004(1) provides that
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or
So, assume that an alleged victim finds text messages on the defendant's phone, forwards them to her phone and e-mail account, and the forwards them to the police. Should the court deem these text messages admissible? That was the question faced by the Court of Appeals of Minnesota in State v. Anderson, 2013 WL 6223399 (Minn.App. 2013).
Friday, December 6, 2013
Yesterday, Florida State quarterback Jameis Winston was not charged with sexual assault. As per Florida law, 86 pages of investigative material was made public. Inside those pages, we can find probably the biggest reason for charges not being brought:
[I]nvestigators found a second DNA profile on the shorts the woman provided. (Winston's DNA profile was found on her underwear.) A defense attorney could use an unknown DNA profile as the foundation of his defense. If prosecutors couldn't positively identify the source of the unknown DNA profile, a defense attorney could suggest that the person who provided the other sample committed the rape. That would likely provide reasonable doubt in jurors' minds. So if Meggs was going to prosecute, he would have to identify that sample. "She acknowledged having sex with her boyfriend," Meggs said. "But she wouldn't tell me who her boyfriend was. Being a shrewd investigator, we found out, and we got his DNA." The investigation could have wrapped up more quickly if not for the delay, which required Meggs to enlist the help of a prosecutor in Ohio to request the boyfriend's DNA.
Let's take a look at the law that governs such evidence.
Thursday, December 5, 2013
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. In Richardson v. Marsh, the Supreme Court found that there's no Bruton doctrine if the prosecution can redact such a statement to remove any reference to the other defendant, and some lower courts have found no problem with replacing the other defendant's name with a neutral pronoun. Sometimes, however, neither solution is viable. The recent opinion of the Northern District of Illinois in United States v. Montoya-Hernandez, 2013 WL 6080483 (N.D.Ill. 2013), gives us some good insight into how this process works.
Wednesday, December 4, 2013
Craig D. Sallie was charged with aggravated assault and possession of a firearm by a convicted felon after a fight with Gregory Johnson. According to the Court of Appeals of Mississippi in Sallie v. State, 2013 WL 6233904 (Miss.App. 2013),
Johnson admitted that he drank whiskey and smoked marijuana on the day of the incident before the shooting occurred. He denied using cocaine that day, but admitted that he had used cocaine in the past. When defense counsel asked Johnson if the blood test performed at the hospital on the day of the shooting indicated that cocaine was in his system, Johnson replied, “I don't know nothing about that, sir.” The State objected to the line of questioning regarding Johnson's alleged cocaine use on the day of the incident, arguing that it was irrelevant to Sallie's guilt or innocence; and even if it were relevant, its probative value was substantially outweighed by the danger of unfair prejudice. The circuit court sustained the objection because defense counsel had no evidence that Johnson had used cocaine on the day of the incident.
Tuesday, December 3, 2013
Federal Rule of Evidence 615 provides that
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.
Therefore, Rule 615 allows a party to move for the sequestration of witnesses at trial. And, as the recent opinion of the United States District Court for the Eastern District of Michigan in Ely v. Uptown Grille, LLC, 2013 WL 6183108 (E.D.Mich. 2013), makes clear, the Rule also applies to depositions.
Monday, December 2, 2013
Federal Rule of Evidence 902(7) allows for the self-authentication of
An inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control.
Last week, I did a couple of posts (here and here) about the intersection between Rule 902(7) and the rule against hearsay. Today, the recent opinion of the United States District Court for the Northern District of Indiana in Estate of Carman v. Tinkes, 2013 WL 6184456 (N.D.Ind. 2013), gives me a third opportunity to explore this intersection and a first chance to see what the internet might mean for the Rule.
Friday, November 29, 2013
Reputable Source?: Court of Appeals of Tennessee Precludes Testimony of Rehabilitation Witness Under Rule 608(a)
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) the evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked.
In Pyle v. Mullins, 2013 WL 6181956 (Tenn.Ct.App. 2013), the plaintiff sought to bolster his credibility after it had been attacked by the defense, but the court precluded this rehabilitation. Why?
Thursday, November 28, 2013
Slapsgiving: Eleventh Circuit Curtly Concludes Juror Can't be Subpoeanaed Regarding Thanksgiving & Racial Comments
I thought for sure you would be found innocent because I talked with one of the jurors about the case—the elderly black man. We were in the bathroom at the same time and he [the juror] said, 'Those white folks know that lady is innocent, but just want to find a black person guilty. We are kinda bored and tired and don't feel like arguing with them. We are trying to get home to prepare for Thanksgiving.' -Statement by defense witness DeAngelus Gibson to Shynita Townsend after he was convicted of knowingly and corruptly accepting a thing of value, as an agent of a local government and related crimes.
Was Townsend entitled to subpoena the juror to see if he would render similar testimony in support of a motion for a new trial? According to the opinion of the Eleventh Circuit in United States v. Townsend, 502 Fed.Appx. 870 (11th Cir. 2012), the answer is "no."
Wednesday, November 27, 2013
Pursuant to the Bruton doctrine, the Confrontation Clause is violated when the prosecution at a joint jury trial introduces a co-defendant's statement that facially incriminates another defendant unless the defendant testifies at trial. But is something more required to trigger application of the doctrine? That certainly seems to be the case according to the Third Circuit in United States v. Green, 2013 WL 6017425 (3rd Cir. 2013).
Tuesday, November 26, 2013
Federal Rule of Evidence 901(b)(5) allows for authentication via
An opinion identifying a person’s voice — whether heard firsthand or through mechanical or electronic transmission or recording — based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
Monday, November 25, 2013
Google It: Court of Appeals Finds Juror Google Search for "Intentional Act" Inadmissible to Impeach Verdict
There's a one car accident involving a vehicle insured by Safeco Insurance Company of Illinois. The insurance company claims that the accident was covered by the intentional-acts exclusion in the insurance policy. During deliberations, the jurors ask for the judge to define an "intentional act." The judge provides no definition, so a juror does a Google search for "intentional act" and tells the other jurors about his results. Soon, thereafter, a straw poll is taken, and nine jurors find in favor of the insurance company. If the jury ultimately find for the insurance company, does there need to be a reversal? According to the recent opinion of the Court of Appeals of Arkansas in Safeco Ins. Co. of Illinois v. Southern Farm Bureau Cas. Ins. Co., 2013 WL 6095473 (Ark.App. 2013), the answer is "no."
Saturday, November 23, 2013
According to a news release:
Professor Myrna Raeder, an esteemed member of the Southwestern faculty for nearly 35 years, passed away on November 16. A prominent national figure in legal education and the advancement of criminal justice, Professor Raeder was one of the most highly regarded experts in evidence and a leading advocate for gender equity in the legal profession and the criminal justice system.
As longtime readers of this blog might remember, Myrna Raeder was an original contributing editor on this blog. When I got the idea to start the blog, Myrna was one of the first people that I contacted. I had recently read her article, The Double-Edged Sword: The Admissibility of Battered Woman Syndrome Evidence by and Against Batterers in Domestic Violence Cases, and wanted her voice on the blog. All of my personal experiences with her confirmed what I was told about her by others: She was a delightful person. Now, she will be missed.
Friday, November 22, 2013
Yesterday, I posted an entry about the intersection between Federal Rule of Evidence 902(7), which allows for self-authentication of inscription, sign, tag, or labels, and the rule against hearsay. In the entry, I discussed two cases in which courts found that self-authenticated inscriptions did not implicate the rule against hearsay when they were merely admitted as trace evidence, to prove the origin of an item (a gun manufactured in Spain and a hard drive made in Malaysia). But what if the evidence is offered for some other purpose? Let's take a look at the opinion of the Superior Court of Pennsylvania in Commonwealth v. Harvey, 666 A.2d 1108 (Pa.Super. 1995).
Thursday, November 21, 2013
We Come From France: What's the Intersection Between Self-Authentication & The Rule Against Hearsay?
Federal Rule of Evidence 902(7) provides that "[a]n inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control" is self-authenticating and requires no extrinsic evidence of authenticity in order to be admitted. That said, couldn't a sign, tag, or label be hearsay -- a person’s oral assertion, written assertion, or nonverbal conduct offered to prove the matter asserted -- making it inadmissble under Federal Rule of Evidence 802 in the absence of an exception or exclusion? This was the question that I was discussing with my colleague Derek Black yesterday. The answer, or at least the one provided by a handful of courts, can be found in United States v. Alvarez, 960 F.2d 830 (9th Cir. 1992).
Wednesday, November 20, 2013
According to an article in yesterday's Virginian-Pilot,
A Circuit Court judge on Monday ruled that the attorneys for a man accused of shooting an off-duty Norfolk police officer in 2010 won’t be allowed to submit polygraph test results as evidence.
The ruling is in line with a 1998 U.S. Supreme Court decision that upheld bans on polygraph evidence, Judge Stephen C. Mahan said in court. Virginia’s Rules of Evidence do not allow it.
So, where exactly does Virginia stand on polygraph evidence?
Tuesday, November 19, 2013
For those who think a lot about blogging or spend time surfing the blogosphere, I recommend the compelling post with the above title by Nancy Leong (Denver Law) on anonymity and online harassment over at Feminist Law Professors Blog: available here.
Monday, November 18, 2013
According to a press release from earlier today,
U.S. Senators Senator Deb Fischer (R-Neb.), Claire McCaskill (D-Mo.) and Kelly Ayotte (R-N.H.) announced a new set of bipartisan provisions to strengthen and augment the already historic reform package that passed the Armed Services Committee in June to curb military sexual assault....
The amendment includes a host of reforms, attached and available online HERE, and including:
•Eliminating the Good Soldier Defense
◦Modifies the Military Rules of Evidence to prevent defendants from using good military character unless it is directly relevant to an element of the crime for which they are charged.
So, what is this so-called good soldier defense?
Friday, November 15, 2013
Federal Rule of Evidence 702 provides 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.
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court laid out several nonexhuastive factors that a court may consider in assessing the reliability of evidence: (1) whether the technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operations; and (5) “general acceptance” within the relevant scientific community. In United States v. Johnsted (Download Johnsted Opinion), the United States District Court for the Western District of Wisconsin addressed the admissibility of expert testimony and an expert report by a handwriting expert. So, how did the court rule?
Thursday, November 14, 2013
Can You Settle an Argument?: SDNY Finds Rule 408 Doesn't Support Imposition of Gag Order In Patent Case
Federal Rule of Evidence 408 reads as follows:
(a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
As I have noted before, Rule 408 only governs the admissibility of settlement-related statements at trial, not their inclusion in pleadings or other documents. What this also means is that a party cannot get a gag order pursuant to Rule 408 that would prevent the opposing party from disclosing those statements to the court of public opinion.
Wednesday, November 13, 2013
Federal Rule of Evidence 413(a) provides that
In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
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.
And Federal Rule of Evidence 415(a) provides that
In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.
I've written before about which states have created counterparts to some or all of these Rules. The partial adopters usually only adopt Rules 413(a) and 414(a), meaning that prior sex crimes are admissible at criminal, but not civil trials. As yesterday's opinion in The People of Guam v. Chinel makes clear, however, the island nation has adopted Rules 413(a) and 415(a) but not 414(a). What does this mean, and how does the territory apply them?