EvidenceProf Blog

Blame Game: Revisiting The Issue of Impeaching the Declarant of an Adoptive Admission

Last week, I did a series of posts about Federal Rule of Evidence 806 and Federal Rule of Evidence 801(d)(2)(B). Rule 806 allows for the impeachment of hearsay declarants even if they don't testify at trial, but it seemingly precludes impeachment of the declarant of an adoptive admission under Rule 801(d)(2)(B). In my posts last week, I argued against such a reading of Rule 806, and I've finally found a case that supports what I've been saying: Lewis v. Gubanski, 905 S.W.2d 847 (Ark.App. 1995).

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My New Article: OK Computer: The Fourth Amendment and Searches of Seized and Imaged Electronic Evidence

Today, I posted the first draft of a short article that I am writing for South Carolina Lawyer magazine on SSRN. The article is OK Computer: The Fourth Amendment and Searches of Seized and Imaged Electronic Evidence. Here is the abstract:

In 1916, the Supreme Judicial Court of Massachusetts addressed a novel question in Massie v. Barker: How does the standard for negligence previously applied to walkers apply to drivers? For the court, the answer was clear: “The law as to drivers of motor vehicles is not different from that which governs other persons. The standard required is that of the reasonably prudent person under all the circumstances.” 

In its 2012 opinion in United States v. Metter, the Eastern District of New York also addressed a question of first impression: How long may the government retain seized and imaged electronic evidence before conducting a review of that evidence to determine whether any of it falls outside the scope of a search warrant?

Many advances in technology have forced courts to reconsider existing constitutional tests and standards given the brave new digital world in which we live. Other technological advances have not caused such legal retrofitting as courts have found that existing tests and standards can adequately accommodate some new innovations. This article argues that the problem confronted by the Metter court falls into this second category.

You can download the article by clicking here. Any feedback would be appreciated.

-CM

Your Best Defense: Should the Right to Present a Defense Allow Defendants to Impeach Rule 801(d)(2)(B) Declarants?

In Crane v. Kentucky, the Supreme Court found that:

"[w]hether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense."

As I noted in my article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense, 61 Baylor L. Rev. 872 (2009), courts generally require defendants to prove three elements to establish that application of a rule of evidence violated or would violate the right to present a defense:

First, that the defendant was or would be deprived "of the opportunity to present evidence in his favor;" second, the excluded evidence was or would be "material and favorable to his defense;" and third, the deprivation was or would be "arbitrary or disproportionate to any legitimate evidentiary or procedural purpose."

So, does the right to present a defense provide relief to a defendant who wants to impeach a Rule 801(d)(2)(B) declarant?

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Mouthguard: Why Does Rule 806 Apply to Rule 801(d)(2)(C) But Not Rule 801(d)(2)(B)?

Following up on Monday's post, in today's post, I want consider the impeachment implications raised by Federal Rule of Evidence 801(d)(2)(B) and Federal Rule of Evidence 801(d)(2)(C). My question is: Why can a party impeach an absent Rule 801(d)(2)(C) declarant but not a Rule 801(d)(2)(B) declarant.

Continue reading "Mouthguard: Why Does Rule 806 Apply to Rule 801(d)(2)(C) But Not Rule 801(d)(2)(B)?"

Liar, Liar: Why Does Rule 806 Preclude Impeachment of a Rule 801(d)(2)(B) Declarant?

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

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

The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

(B) is one the party manifested that it adopted or believed to be true;

(C) was made by a person whom the party authorized to make a statement on the subject;

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or

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

Meanwhile, Federal Rule of Evidence 806 provides that

When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.

Therefore, when a declarant makes a statement that a party adopts under Federal Rule of Evidence 801(d)(2)(B), the party cannot impach the declarant at trial if for whatever reason the declarant is not a witness at trial. I disagree with this limitation of Federal Rule of Evidence 806.

Continue reading "Liar, Liar: Why Does Rule 806 Preclude Impeachment of a Rule 801(d)(2)(B) Declarant?"

Swing and a Miss: Court of Appeals of Mississippi Seemingly Botches Prior Inconsistent Statement Appeal

Similar to its federal counterpart, Mississippi Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition...

Conversely, if a prior inconsistent statement was not given under oath, it is only admissible to impeach the declarant and not to prove the truth of the matter asserted in the prior statement. To me, that seems like a pretty big distinction. In its opinion in Barron v. State, 2013 WL 2402916 (Miss.App. 2013), the Court of Appeals of Mississippi apparently disagreed.

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Please Welcome Derek Black's Education Law Prof Blog to the Internet

Please welcome the Education Law Prof Blog to the internet. The blog was launched on April 30th with the following statement of purpose:

Welcome to the Education Law Prof Blog. On this blog, we plan to highlight education law developments, legal scholarship, research, conferences, and more. Our nation's educational laws have shaped our history, challenged our beliefs, and, at times, defined us. Education law continues to be a dynamic and rich topic, and we hope that this blog will be a place where advocates and scholars can discuss emerging issues and share information. We welcome contributions and ideas from our visitors. If you have recent articles, cases, news, or have a fresh perspective on an important educational issue, please contact us about having it posted. We are also open to having guest bloggers, so if you are interested, please contact us in the left editors' column. Thank you for visiting, and we look forward to hearing from you.

The blog is edited by my colleague Derek Black (who also teaches Evidence and recently completed an Education Law casebook) as well as LaJuana Davis from the Cumberland School of Law and Areto Imoukhuede from Nova Southeastern.

Already, the blog has tackled a good number of education law issues. Yesterday alone, the editors posted entries on discrimination against LGBT students, pre-kindergarten funding, and virtual charter schools. If you are at all interested in education law, the Education Law Prof Blog is definitely worth a look.

-CM

This is a Recording: When Is a Witness Ever Able to Testify Fully & Accurately for Rule 803(5) Purposes?

A few days ago, I posted an entry about relocating Federal Rule of Evidence 803(5) to Federal Rule of Evidence 801(d)(1). Today, I want to focus on another aspect of this Rule, which provides an exception to the rule against hearsay for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Specifically, let's focus on the question of when a witness "cannot recall [a matter] well enough to testify fully an accurately."

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No Right: Supreme Court Finds RIght to Present a Defense Doesn't Preclude Application of Anti-Extrinsic Evidence Rule

The right to present a defense is a right that has always fascinated me. A few years ago, I wrote about it in the article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense. That article addressed the intersection between the right and the rules of evidence. Specifically, it questioned whether the right to present a defense should trump Federal Rule of Evidence 606(b) in cases in which there is evidence of juror racial, religious or other bias during deliberations.

Yesterday, in Nevada v. Jackson, the Supreme Court addressed another such intersection. How did the Court rule?

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Should the Recorded Recollection Exception be Moved to Federal Rule of Evidence 801(d)(1)?

Federal Rule of Evidence 803(5) provides a hearsay exception for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Because of its placement in Federal Rule of Evidence 803, this "recorded recollection" exception "applies regardless of whether the declarant is available as a witness...." My argument in today's blog post is that Federal Rule of Evidence 803(5) would fit better under Federal Rule of Evidence 801(d)(1) and that its current residence in Federal Rule of Evidence 803 is a historical relic that no longer makes any sense.

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Are Rule 803 Hearsay Statements More Reliable Than Rule 804 Hearsay Statements?

As I was reviewing the Advisory Committee's Notes to Federal Rules of Evidence 803 and 804 yesterday, I came across something that I have never noticed before. And what I noticed has led me to ask the following question: Are statements falling under a Rule 803 exception generally thought to be more reliable than statements falling under a Rule 804 exception?

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Know Thy Enemy: How the Jodi Arias Trial Differed From the George Zimmerman Trial With Regard to Character Evidence

In yesterday's post, I argued that George ZImmerman should not be able to present evidence of specific instances of violent conduct by Trayvon Martin to support his claim of self-defense. In response, Rick Underwood left the following two comments:

1. Great. But that's not what happened in the Jodi Arias case. It all depends on who the defendant is!

Any comment?

2. The point of my previous post was that the Jodi Arias defense was self-defense. Then it morphed into "the guy was nasty" and "abusive." The defendant said whatever she wanted to (apparently nobody believed it). There seemed to be no rules of evidence involved. The expert testimony was pathetic.

Of course, the bottom line is that when death is on the table, the rules get thrown out. Maybe ok and maybe not.

I do agree with your analysis. It is spot on. My point is the the rules don't seem to matter in some cases with some defendants.

So, let's take a look at the Jodi Arias case and the Arizona Rules of Evidence.

Continue reading "Know Thy Enemy: How the Jodi Arias Trial Differed From the George Zimmerman Trial With Regard to Character Evidence"

The Character of the Matter George Zimmerman, Trayvon Martin & the Intricacies of Character Evidence

Section 90.404 of the Florida Statutes generally precludes parties from presenting propensity character evidence, such as evidence that a defendant on trial for robbery had committed a prior robbery ("once a robber, always a robber"). That said, Section 90.404(1)(b)1. of the Florida Statutes contains a so-called "mercy rule," pursuant to which a criminal defendant can open Pandora's box and present evidence of the alleged victim's bad character for a pertinent character trait. The consequence of presenting such character evidence, however, is that the prosecution can respond by presenting (1) evidence of the alleged victim's good character for that same trait; and/or (2) evidence of the defendant's bad character for that same trait.

In the build up to his murder trial, George Zimmerman has attempted to get the trial judge to deem admissible evidence of Trayvon Martin's violent past. How should the court rule?

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To Hell & Back: Court of Appeals of Kentucky Finds No Error With Rejected Stipulation

According to the Legal Dictionary,

During the course of a civil lawsuit, criminal proceeding, or any other type of litigation, the opposing attorneys may come to an agreement about certain facts and issues. Such an agreement is called a stipulation. Courts look with favor on stipulations because they save time and simplify the matters that must be resolved. 

Sometimes, parties agree on a stipulation without any goading by the court. For instance, the prosecution and defense might agree to stipulate that the alleged victim was a minor in a statutory rape case, with the only dispute being whether the defendant engaged in prohibited sexual acts with that minor. In other cases, one party wants to stipulate to a certain fact, the other party wants to prove that fact through evidence/testimony, and the court has to decide whether the stipulation is preferable.

Probably the most famous example of this latter situation is Old Chief v. United States, 519 U.S. 172 (1997), in which the defendant was charged with being a former felon in possession of a firearm. The defense wanted to stipulate that the defendant was a former felon. The prosecution wanted to prove this prior felony conviction through evidence/testimony. The district court allowed the prosecution to present its evidence/testimony, and the Supreme Court later reversed the defendant's conviction, finding that the stipulation would have told the jury all that it needed to know: that the defendant was a former felon. So, why didn't the Court of Appeals of Kentucky reach a similar conclusion in Anglin v. Commonwealth, 2013 WL 2257829 (Ky.App. 2013)?

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Gone Fishin': Can an Affidavit Ever Qualify as a Present Sense Impression?

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

Can an affidavit qualify as a "present sense impression" under Rule 803(1)? According to dicta in Catfish Farmers of America v. United States, 2013 WL 2250601 (CIT 2013), the answer is "yes." I disagree.

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I'll Admit It: Is Rule 608(b) Evidence "Admissible"?

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The Federal Rules of Evidence are not coterminous with the discovery rules. Some evidence that would be inadmissible is still discoverable, but some evidence that would be admissible at trial is not discoverable. The recent opinion of the United States District Court for the Southern District of New York in Guercia v. Equinox Holdings, Inc., 2013 WL 2156496 (S.D.N.Y. 2013), ostensibly deals with this latter situation...or does it?

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Uninsurable: Court of Appeals of Rhode Island Finds No Problem With Judge's Sua Sponte Insurance Instruction

Similar to its federal counterpart, Rhode Island Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. However, such evidence may be allowed when offered for another purpose, such as proof of agency, ownership, or control, bias or prejudice of a witness, or when the court determines that in the interests of justice evidence of insurance or lack of insurance should be permitted.

So, in most cases, neither the plaintiff nor the defendant can present evidence or testimony concerning the absence of presence of liability insurance. But what happens if the judge specifically instructs the jury not to speculate on the absence or presence of such insurance? Let's take a look at the recent opinion of the Supreme Court of Rhode Island in Oden v. Schwartz, 2013 WL 2109929 (R.I. 2013).

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Chutes & Ladders: Court of Appeals of Kentucky Finds Evidence of Ladder Switch Inadmissible Under Rule 407

Similar to its federal counterpart, Kentucky Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event 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.

So, let's say that a plaintiff is injured when he falls off of his employer's ladder, and the ladder is later replaced after the accident. If the plaintiff's supervisor testifies at trial that he is unaware that the ladder was replaced, is evidence of the ladder change admissible to impeach him under Rule 407? According to the recent opinion of the Court of Appeals of Kentucky in Durbin v. CSX Transp., Inc., 2013 WL 2120317 (Ky.App. 2013), the answer is "no."

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Talk About the Life in Massachusetts: Supreme Judicial Court of MA Does Not Adopt Federal Rule of Evidence 608(b)

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The vast majority of states have state rules of evidence that exactly or closely mirror the Federal Rules of Evidence. Massachusetts, however, is not one of those states. So, what did that mean for the defendant in Commonwealth v. Almonte, 2013 WL 2128336 (Mass. 2013)?

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Black & White: D.C. Court of Appeals Finds Trial Courts Have Discretion to Consider Evidence of Juror Racial Bias

Federal Rule of Evidence 606(b) states:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

D.C. does not have codified rules of evidence, but it applies a common law rule that is very similar to Federal Rule of Evidence 606(b), and, in Kittle v. United States, 2013 WL 2102150 (D.C. 2013), the D.C. Court of Appeals addressed a question of first impression previously addressed by many federal courts: What happens when there are post-verdict allegations of racial bias by jurors?

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