Monday, October 20, 2014
Similar to Federal Rule of Evidence 804(b)(3), Wisconsin Statute Section 908.045(4) provides an exception to the rule against hearsay for
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in the declarant's position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborated.
In State v. Amonoo, 2014 WL 4976615 (Wis.App. 2014), the trial court prevented the defendant from presenting a statement against interest. But was that statement corroborated?
Friday, October 17, 2014
According to an article in the Ledger-Enquirer,
Three years ago Calvin Grimes lay in intensive care, paralyzed from the neck down, with a gunshot wound to his windpipe.
He could not speak. All he could do was click with his mouth.
In the hospital with machines breathing for him, he could not tell Columbus police who fired the shots Aug. 19, 2010, that left him slumped in a car at 543 Third Ave., with two .40-caliber bullets lodged in his trachea and his spinal canal, and with exit wounds from .22-caliber bullets in his left wrist, upper left thigh and right buttock.
Because Grimes could not vocalize the names of his assailants, Detective Wayne Fairburn improvised as he questioned Grimes in the hospital Oct. 11, 201.
Fairburn reported Grimes first mouthed the name "Jarvis" when asked who shot him. The detective then wrote the alphabet out on his note pad, and asked Grimes to make the clicking noise as Fairburn pointed to each letter, signaling the sequence to spell names.
Using this method, Fairburn got Grimes to spell "Jarvis Alexander" and "Josh Leonard." Two days later the officer returned with photographs of those suspects, which Grimes identified as the men who shot him.
Later Grimes was fitted with a device that enabled him to speak, and relatives reported he told them the same names.
Should Grimes's "statements" be deemed admissible as dying declarations?
Thursday, October 16, 2014
Free Shoes University?: Michael McCann & a Florida State Student Conduct Code Proceeding Against Jameis Winston
Sports Illustrated has a great piece by Michael McCann about what a student code of conduct hearing would look like for Heisman-winning quarterback Jameis Winston. I previously blogged about possible evidentiary issues at a potential criminal trial against Winston in this post. The gist of McCann's piece is that none of these evidentiary issues would arise at a student code of conduct hearing. Why?
Wednesday, October 15, 2014
In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. That said, many states have decided not to apply Luce in the strictest sense. For an example, consider the recent opinion of the Court of Appeals of Mississippi in Wallace v. State, 2014 WL 5137564 (Miss.App. 2014).
Monday, October 13, 2014
Drugged Up?: Colorado Court of Appeals Deems Evidence From Drugs.Com Inadmissible Under Rule 803(17)
Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
As I have previously noted on this blog, and as the Colorado Court of Appeals noted in People v. Hard, 2014 WL 5033147 (Colo.App. 2014), this exception allows for the admission of things such as evidence from the Kelley Blue Book. But Hard didn't deal with evidence from the Kelley Blue Book. It dealt with evidence from Drugs.com.
Friday, October 10, 2014
The Set Up: Northern District of Illinois Finds Former Testimony Exception Applies in Malicious Prosecution Case
Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for
(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and
(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.
Last month, I posted an entry an entry about a case in which the Supreme Court of Ohio found that asbestos manufacturers were not predecessors in interest to H.J. Heinz Company in a case in which a Heinz employee first sued the manufacturers and then sued Heinz. Did the United States District Court for the Northern District of Illinois reach a similar conclusion in Fields v. City of Chicago, 2014 WL 477394 (N.D.Ill. 2014)?
Thursday, October 9, 2014
Yesterday, Adam Liptak published the story, Justices Hear Case on Allowing Testimony by Jurors, in the New York Times. The story concerns the oral argument in Warger v. Shauers, the Supreme Court case addressing the following issue:
Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.
Federal Rule of Evidence 606(b) reads as follows:
(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.
Long-time readers of this blog will note that I've written on the issue several times, including in this post about the prosecution of actor Wesley Snipes.
In 2008, the Supreme Court of North Dakota was able to note in State v. Hidanovic, 747 N.W.2d 463, 474 (N.D. 2008), that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b)...do not preclude evidence to show a juror lied during voir dire." This, however, is no longer the case, and, if Liptak's article is any indication, the Justices of the Supreme Court seem ready to rule that Rule 606(b) precludes jurors from testifying concerning deliberations to prove that a juror lied during voir dire.
Wednesday, October 8, 2014
A Settlement Privilege?: Supreme Court of Appeals of West Virginia Finds Rule 408 Doesn't Create a Settlement Privilege
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, the liability of a party in 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.
So, does Rule 408(a) create a settlement privilege, meaning that a party is not entitled to discovery regarding what happened during settlement negotiations? Let's take a look at the recent opinion of the Supreme Court of Appeals of West Virginia in State ex rel. City of Weirton v. Sims, 2014 WL 4746206 (West Va. 2014).
Tuesday, October 7, 2014
WikiTrial: Patent Trial and Appeal Board finds Wikipedia & Webopedia Entries Properly Authenticated In Patent Dispute
Federal Rule of Evidence 901(a) provides that
To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
So, how does a party authenticate a web page purported to be from Wikipedia or Webopedia? Let's take a look at the recent opinion of the Patent Trial and Appeal Board in SAP America, Inc. v. Lakshmi Arunachalam.
For those who missed it, last night, my W&M colleague Alli Larsen discussed a component of her ongoing work on Supreme Court factfinding, and particulaly its practice of pulling dubious facts from amicus briefs on … the Colbert Report!
Although the coverage focuses on Supreme Court practice, to my mind this work brings a fresh perspective to the long forgotten Evidence-related debate about the proper contours and boundaries of judicial notice of “legislative” facts.
Here is a SSRN link to her forthcoming article, The Trouble with Amicus Facts
Here is a link to the Colbert Report segment
Here is a link to coverage in the NY Times
Monday, October 6, 2014
Back in 2009, I published the article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. At the same time, I noted in the blog post Arizona v. Gant: A Windfall For The Government? that a portion of Gant could be read to favor the government and cited People v. Osborne, 2009 WL 2026328 (Cal. App. 1 Dist. 2009), as support for my conclusion. Now, my new colleague, Seth Stoughton, has uncovered a case that provides an even better illustration of this point. Here is his analysis of that case:
Friday, October 3, 2014
With the Supreme Court granting cert yesterday in Ohio v. Clark, I thought it was an opportune time to provide another link to Professor Marianna Brown Bettman's terrific blog post on the case. When I first linked to this post back last November, I noted:
Professor Bettman points out that the dissent might be the most interesting part of the case and not just because Justice O'Connor practically begs the United States Supreme to grant cert.
Now, the Supreme Court has done just that.
Thursday, October 2, 2014
(1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.
Seven years ago today, I started EvidenceProf Blog. Here was my first post:
I am a professor at the John Marshall Law School, teaching Evidence and Civil Procedure. I hope that this blog becomes a place where evidence professors across the country can talk about recent developments in evidence law.
Now, seven years later, I'm at a new school: the University of South Carolina School of Law. I teach some more classes: Criminal Law and Criminal Adjudication. And I have a new job: Associate Dean for Faculty Development. But the mission remains the same. Today, in honor of seven years, let's take a look at the recent opinion of the Third Circuit in United States v. Caldwell, 760 F.3d 267 (3rd Cir. 2014), a case involving the relevance of seven year old convictions.
Wednesday, October 1, 2014
New Jersey Rule of Evidence 612 states that
Except as otherwise provided by law in criminal proceedings, if a witness while testifying uses a writing to refresh the witness' memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness. The adverse party shall also be entitled to introduce in evidence those portions which relate to the testimony of the witness but only for the purpose of impeaching the witness. If it is claimed that the writing contains material not related to the subject of the testimony, the court shall examine the writing in camera and excise any unrelated portions. If the witness has used a writing to refresh the witness' memory before testifying, the court in its discretion and in the interest of justice may accord the adverse party the same right to the writing as that party would have if the writing had been used by the witness while testifying.
Based on the language of this rule, the trial judge clearly made a misstatement of law in Joachim v. Jackson, 2014 WL 4745547 (N.J.Super.A.D. 2014). Or did he?
Tuesday, September 30, 2014
According to an article in the New Miner (Alaska),
The attorney for a woman accused of killing her 18-month-old son in November hopes the court will admit evidence from a polygraph test the defense believes will help absolve her of guilt.
Bill Satterberg, the attorney representing Fairbanks resident Amberlynn Swanson, filed a request that the court admit two pieces of evidence in the case: a polygraph test of Swanson conducted by an expert in the field, David Raskin, and expert testimony from Raskin claiming law enforcement failed to properly conduct a test of their own....
On Sept. 17, Satterberg filed a motion requesting the judge allow the consideration of the two polygraphs, one by Raskin and one by Alaska State Troopers.
So, what's the likelihood that Swanson will be successful?
Monday, September 29, 2014
Telling Lies in America: New Jersey Class Action Challenges Use of Polygraph Exams For Sex Offenders on Parole
I've written before about what could be seen as an inconsistency in the American criminal justice system: Polygraph evidence is inadmissible to prove a defendant's innocence (or guilt) at trial, and yet such evidence is routinely admitted for other purposes, such as determining whether a convicted sex offender violated parole. Apparently, this inconsistency is not part of a potentially viable class action lawsuit in New Jersey.
This weekend's Washington Post had an eye opening story on a previously unreported shooting back in a 2011. Among the revelations was that someone posted a tweet about the shooting at the time. From the story:
A woman in a taxi stopped at a nearby stoplight immediately took to Twitter to describe the actions of “this crazy guy.”
“Driver in front of my cab, STOPPED and fired 5 gun shots at the White House,” she wrote, adding, “It took the police a while to respond.”
If the case had gone to trial (the shooter pleaded guilty), I wonder if this tweet would be admissible. The caps could support an excited utterance. Possibly also a present sense impression, although seems to be a significant time lag between the shooting portion of the tweet and the tweeting.
Friday, September 26, 2014
Disabling Condition: Should Evidence of Defendant's Disability be Admissible in Assault/Police Brutality Trial?
According to an article in the Lake Geneva News,
A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.
Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.
White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions.
Prior to trial, the prosecution asked the judge to (1) prohibit White's cane from being in the jury; and (2) to exclude evidence of White's disability. How should the judge rule?