EvidenceProf Blog

Questioning The Jury: Tennessee Court Finds Trial Court Applied Proper Jury Questioning Procedure In 4th Of July Case

I have written a few posts on this blog (here, here, here, and here) about the propriety of allowing jurors to ask questions during trial. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. James, 2009 WL 1579236 (Tenn.Crim.App. 2009), makes clear that Tennessee allows juror questioning in criminal cases and also clarifies a key detail about how that questioning works.

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Summary Judgment: Seventh Circuit FInds Audit Report Admissible Under Rule 1006

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for 

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

But what happens when a party seeks to introduce a report that was not made in the course of regularly conducted business activity, but that report was made from documents that themselves qualify as business records under Federal Rule of Evidence 803(6)? The answer, as the Seventh CIrcuit found in its recent opinion in Trustees of the Chicago Plastering Institute Pension Trust v. Cork Plastering Company, 2009 WL 1873516 (7th Cir. 2009), is that the report is admissible under Federal Rule of Evidence 1006.

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Something Special In The Verdict: Rule 606(b) Precludes Jury Impeachment On Workers' Compensation Issue In Case Against American Airlines

Judges often make rulings excluding evidence to avoid confusing the jury. Indeed, Federal Rule of Evidence 403 explicitly provides that judges may exclude even relevant evidence if its probative value is substantially outweighed by the danger of confusion of the issues. Sometimes, however, in an attempt to prevent juror confusion, the judge ends up causing that very confusion. But even when a party can prove that this confusion caused a misguided verdict, Federal Rule of Evidence 606(b) will preclude the verdict from being disturbed, as was the case with the recent opinion of the United States District Court for the Southern District of New York in Severino v. American Airlines, 2009 WL 1810014 (S.D.N.Y. 2009).

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Chicken Little Or Canary In The Coal Mine?, Take 3: Could Briscoe v. Virginia Lead To An Immediate Overturning Of Melendez-Diaz?

Last week, I wrote a post about the Supreme Court's new opinion in Melendez-Diaz v.Massachusetts, in which it found in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. One of the five Justices in the majority was Justice Souter, who, of course, will soon be gone from the Court, likely to be replaced by Sonia Sotomayor. What this means is that the Melendez-Diaz opinion could soon be invalidated if the Court hears a case that leads it to reassess Melendez-Diaz, and the new Justice agrees with the four dissenting Justices in Melendez-Diaz. And, as SCOTUS Blog, recently noted, the Court has just granted cert in just such a case. 

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Ex Post Handcuffs, Take 2: Sixth Circuit Opinion Also Shows Immediate Impact Of Arizona v. Gant

Yesterday, I did a post about the immediate impact of the United States Supreme Court's recent opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009), and its holding that officers cannot the passenger compartment of an arrestee's vehicle incident to the arrest "after the arrestee has been secured and cannot access the interior of the vehicle." In that post, I cited the Eighth Circuit's opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009), as "[t]he first o[pinion] that I have seen at the federal appellate level" striking down such a search in the wake of Arizona v. Gant. Well, after a little more searching, I actually came across, the Sixth Circuit's opinion in United States v. Lopez, 2009 WL 1507294 (6th Cir. 2009), which did the same about a week earlier.

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Ex Post Handcuffs: Eighth Circuit Opinion Shows Immediate Impact Of Arizona v. Gant

In 1969, the Supreme Court established the boundaries of proper search incident to a lawful arrest in California v. Chimel, 395 U.S. 752 (1969). According to the Court,

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape....And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. 

Okay, so according to Chimel as part of a search incident to a lawful arrest, an officer can search the suspect and the area into which he might reach. But then came the Court's 1981 opinion in New York v. Belton, 453 U.S. 454 (1981).

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Expert Commitment: New Jersey Appellate Court Affirms Civil Commitment Based Upon Reasonable Expert Reliance

New Jersey Rule of Evidence 703 indicates that

[t]he 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.

And because the experts in In re Civil Commitment of W.X.C., 2009 WL 17505433 (N.J.Super.A.D. 2009), relied upon inadmissible evidence that is nonetheless reasonably relied upon by experts in their field in forming opinions, the Superior Court of New Jersey, Appellate Division affirmed W.T.C.'s commitment to the Adult Diagnostic and Treatment Center for sex offender treatment.

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It's So Juvenile: Minnesota Case Reveals Difference Between Minnesota And Federal Rule Of Evidence 609(d)

Federal Rule of Evidence 609(d) indicates that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

Minnesota Rule of Evidence 609(d), however, is different, and that difference made all the difference for the defendant in State v. Bishop, 2009 WL 1750631 (Minn.App. 2009). 

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Juror's Curiosity Killed The Verdict: Court Of Appeals Of Arkansas Upholds Granting Of New Trial Based Upon Juror's Accident Scene Visit

Similar to its federal counterpart, Arkansas Rule of Evidence 606(b) indicates that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. 

And, as the recent opinion of the Court of Appeals of Arkansas in Campbell v. Hankins, 2009 WL 1685164 (Ark.App. 2009), makes clear, when a juror, against the judge's instructions, visits the accident/crime scene and relays what he saw to the other jurors, what he saw is extraneous prejudicial information which forms the proper predicate for jury impeachment.

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Chicken Little Or Canary In The Coal Mine, Take 2: Professor Friedman's Initial Reaction To Melendez-Diaz

Professor Richard Friedman over at The Confrontation Blog has a typically great post setting forth his initial reaction to Melendez-Diaz. I recommend that readers check it out as well as his upcoming post which will focus on the dissent.

-CM

Chicken Little Or Canary In The Coal Mine?: Supreme Court Finally Issues Opinion In Melendez-Diaz, Finding Certificates Of State Laboratory Analysts To Be "Testimonial"

Today, the Supreme Court finally decided Melendez-Diaz v. Massachusetts, finding in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Confrontation Clause. And, if you believe Justice Kennedy, the result of the decision will be the sky falling on many criminal prosecutions; if you believe Justice Scalia, Justice Kennedy is Chicken Little.

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Alternate Ending: Supreme Court Of Indiana Opinion Reveals That Indiana Courts Consider Alternate Juror (Mis)Behavior An Improper Outside Influence For Jury Impeachment Purposes

Similar to its federal counterpart, Indiana Rule of Evidence 606(b) indicates that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify (1) to drug or alcohol use by any juror, (2) on the question of whether extraneous prejudicial information was improperly brought to the jury's attention or (3) whether any outside influence was improperly brought to bear upon any juror. A juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying may not be received for these purposes.

(Federal Rule of Evidence 606(b) does not allow jurors to impeach their verdicts through allegations of juror drug or alcohol use, but it does allow jurors to impeach their verdicts based upon transcription mistakes). But what happens when an alternate juror participates, or distracts from, the jury deliberation process. Should this be considered something internal to the jury deliberation process and thus not a proper predicate for jury impeachment, or is it an improper outside influence and thus something that can form the predicate for jury impeachment? As the recent opinion of the Supreme Court of Indiana in Henri v. Curto, 2009 WL 1685134 (Ind. 2009), makes clear, Indiana courts have found that alternate jurors are improper outside influences, meaning that jurors can testify about their misconduct to impeach their verdicts.

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Duty To Defend: Diversity Case Reveals Interesting Aspect Of Illinois' Attorney-Client Privilege

Similar to most states' attorney-client privileges, Illinois' attorney-client privilege allows a client to prevent his attorney from disclosing a statement he made to his attorney in court if

(1) the statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential. 

As the recent opinion of the United States District Court for the Northern District of Illinois in Cars R Us Sales and Rentals, Inc. v. Ford Motor Co., 2009 WL 1703123 (N.D. Ill. 2009), makes clear, however, Illinois has an additional component to its attorney-client privilege, albeit one that was not relevant to the court's opinion.

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Going Unnoticed: Texas Appeal Illustrates Difference Between Texas And Federal Rule Of Evidence 609(b)

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible [to impeach a witness] if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Texas Rule of Evidence 609(b) contains the first sentence of its federal counterpart, but it does not contain the second sentence, and this omission apparently made the difference in the recent opinion of the Court of Appeals of Texas in Gore v. State, 2009 WL 1688196 (Tex.App.-Hous. [1 Dist.] 2009).

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The Harmless Conspiracy: Court Finds Harmless Error Despite Improperly Admitted Co-Conspirator Admission

Federal 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 coconspirator of a party during the course and in furtherance of the conspiracy.

As both the plain language of this Rule and the recent opinion of the United States District Court for the Eastern District of Michigan in Rodriguez v. Jones, 2009 WL 1619969 (E.D. Mich. 2009), make clear, a statement is not admissible under this rule merely because it was made by a party's co-conspirator; instead, the statement must be made both during the course of the conspiracy and in furtherance of it. And in Jones, the co-conspirator's statement was neither.

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Total Recall: Court Dismissed Lawsuit Against Harley-Davidson Based Upon Rule 407

Federal Rule of Evidence 407 states 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.

In other words, if a plaintiff is going to sue a company such as Harley-Davidson for making a defective product that caused her to suffer injuries, her sole method of proof cannot be that the company recalled the product after her accident as is made clear by the recent opinion of the United States District Court for the Southern District of Mississippi in Rutledge v. Harley-Davidson Motor Co., 2009 WL 1635762 (S.D. Miss. 2009). 

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Ordeal By Innocence, The Aftermath: Alaska Adopts Wrongful Incarceration/Execution Exception To Attorney-Client Confidentiality

Last summer, the Northwestern University Law Review Colloquy published my essay, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. I wrote the essay largely in response to the Alton Logan story. As I noted in the essay,

In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's.  What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed.  The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession.  Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan dwere given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit: being locked up—Logan in a prison cell; the affidavit in a lock box.  Pained by guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

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Protecting Against The Google Mistrial: Supreme Court Of Michigan Revises Court Rule To Address Technologically Enhanced Jury Misconduct

Yesterday, I posted an entry about the Supreme Court of Michigan's adoption of a new rule of evidence providing that judges "shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons." Well, the Michigan Supremes also revised Michigan Court Rule 2.516, and the revision addresses an issue that I have given much attention on the blog: How do we deal with the increasing problem of jurors using cell phones, computers, and other devices to discuss and discover information relating to the case that they are hearing. But it didn't go all the way.

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What Not To Wear, Religious Edition: Supreme Court of Michigan Adopts Rule Allowing Judges to Exercise "Reasonable Control Over the Appearance of Parties and Witnesses" Based Upon Niqab Case

Yesterday, by a 5-2 vote, the Supreme Court of Michigan adopted an amendment to Michigan Rule of Evidence 611. This amendment created Michigan Rule of Evidence 611(b), which provides as follows:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons. 

The amendment was crafted in response to a lawsuit brought by Muslim woman Ginnah Muhammad. Muhammad had gone to court to contest a $3,000 charge from a rental company to repair a vehicle that she said thieves had broken into. When Muhammad appeared in court, District Judge Paul Paruk ordered her to remove her niqab, or face covering, but she refused, ostensibly because "[s]ome Muslim leaders interpret the Quran to require that women wear a headscarf, veil or burqa in the presence of a man who is not their husband or close relative." 

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Prior Authorization: Eleventh Circuit Finds Threat Conveyed To Witness' Girlfriend Didn't Constitute An Authorized Admission

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

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a person authorized by the party to make a statement concerning the subject.

But what must a party seeking to admit such a statement present to establish such authorization? Must there be explicit words of authorization or can authorization be implied by the statement itself? Both Federal Rule of Evidence 801 and the Eleventh Circuit's recent opinion in United States v. Docampo, 2009 WL 1652910 (11th Cir. 2009), tell us that authorization cannot be implied (solely) by the statement itself, but I am not sure that I agree.  

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