October 6, 2007
Late Applications are being accepted for 2008-09 Fulbright Scholar awards in China
Ann Murphy, an evidence, taxation, and trusts and estates Professor from Gonzaga, who is in Bejing, China on a Fulbright scholarship, forwards me this message:
Late applications are being accepted for 2008-09 Fulbright Scholar awards in China from scholars in the field of law. Share your expertise with Chinese colleagues and students and contribute to building the "rule of law" in China while you learn about this fascinating, rapidly changing society. Law specializations of particular interest include: administrative, business, constitutional, investment, tax, civil, intellectual property, comparative, contract , intellectual property and international law. Grants are for one semester (5 months) or the academic year (10 months). One semester grants can start in late August 2008 or February 2009. Academic year grants start in late August 2008. Grantees are placed in the top universities in China. The benefit package for the Fulbright Scholar awards in China is unique because it includes a salary supplement stipend. For more information, visit http://www.cies.org/award_book/award2008/country/EasChiCH.htm or contact David Adams, senior program officer at CIES, 202-686-4021 or email@example.com.
The immediate thing that pops into my head besides this being a great opportunity is that the summer Olympics will be held in Bejing next year. Thanks for the heads up, Ann.
Third Party Problems: The 11th Circuit fails to apply Rule 403 to Rule 407
In Millennium Partners, L.P. v. AIG Trading Corporation, the Eleventh Circuit Court of Appeals considered a question of first impression in that circuit: whether Federal Rule of Evidence 407 bars evidence of subsequent remedial measures by a non-defendant (to prove the defendant's negligence, culpable conduct, etc.). The Eleventh Circuit join[ed] the seven Circuits that have agreed that such evidence is not barred.
I agree with this holding in principle because the policy reasons behind Rule 407 do not apply with equal force when a non-defendant is making the subsequent remedial measures. The problem, however, is that such third party measures also lack similar probative value because it is not the defendant taking the measures.
What the Eleventh Circuit failed to acknowledge in its opinion is that pursuant to this probative value problem. many of its sister circuits have engaged in detailed 403 analyses to determine whether the probative value of subsequent remedial measure by third parties is substantially outweighed by the danger of unfair prejudice, etc. The Eleventh Circuit, however, didn't even mention Rule 403.
In Millennium Partners, the defendant was a tenant who allegedly failed to adequately protect against flooding, and the court allowed the admission of evidence that a subsequent tenant installed pumps in truck wells to protect against flooding. To me, this certainly seems like a factual context in which 403 balancing should have been done by the court.
October 5, 2007
Balancing Act? Are Judges Misapplying Rule 403?
Federal Rule of Evidence 403 and most state counterparts state that relevant evidence may nonetheless be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
In its recent decision in Guerra v. North East Independent School District, the Fifth Circuit Court of Appeals affirmed the district court's decision to exclude an EEOC letter because "its risk of prejudice outweighed is probative value." A quick Westlaw search shows 49 cases in ALLFEDS and 129 cases in ALLSTATES where courts similarly used the phrase "prejudice outweighed its probative value."
The question becomes whether the judges in these cases are just being lazy or whether they are erroneously excluding evidence whose prejudicial effect outweighs its probative value, although perhaps not to a substantial degree. It also leads me to wonder whether courts are even worse when prior convictions are at issue under Rule 609 and they must alter the balancing test depending on whether the witness is a criminal defendant and whether the date of conviction or release from prison is more than 10 years old. More on that later.
There Won't Be Blood: Minnesota Court of Appeals finds warrantless blood draw unconstitutional
In Minnesota v. Shriner, the Minnesota Court of Appeals came to the conclusion that the suspected presence of alcohol does not per se give the police the Constitutional authority to justify a warrantless blood draw. Shriner had crashed her vehicle into another vehicle head-on after crossing over into the wrong lane of traffic, and the police arrested her, took her to a hospital, and directed staff to draw her blood without her consent.
On appeal, Shriner conceded that there was probable cause for the police to seek the blood test, but she contended that the blood draw was improper without her consent or a warrant. The state contended that presence of alcohol in an individual, and its normal dissipation from the bloodstream, was per se an exigent circumstance justifying a warantless blood draw. As support, it cited cases such as State v. Bohling, 494 N.W.2d 399 (Wis. 1993).
Nonetheless, the Minnesota Court of Appeals concluded that it could not find that the presence of alcohol would always constitute exigent circumstances jutifying a warrantless blood draw and found that it would apply a totality of the circumstances approach to determine whether a warrant could be obtained before the test results would be compromised. The evidence that seemed to me to be the most damaging to the state was the arresting officer's own testimony that he was not concerned about the dissipation of alcohol from Shriner's blood.
The court's holding seems to be correct to me. I am generally wary of courts creating per se rules, and Shriner seems like it presents a classic case where a per se rule would have resulted in an outcome that went against common sense.
October 4, 2007
Would I Lie to You? Convicted Man to Take Polygraph on British TV?
Polygraph, or lie detector evidence is generally inadmissible in court. In England, however, Kevin Dunn, convicted of killing Dawn Walker and setting her body alight, is trying a different tactic months after he was denied permission to appeal by a Court of Appeals judge.
According to Dunn's sister, her brother might take a lie detector test as part of a documentary called True Crime, which will try to exonerate convicted criminals; the doc might eventually air on a British station such as the BBC. If the doc is successful, perhaps it will lead to Dunn being exonerated. There is some precedent out there for an advocacy piece of filmmaking resulting in a convict being exonerated. In Errol Morris' documentary The Thin Blue Line, he claimed that Randall Adams was wrongfully convicted of murder. The doc resulted in Adams' case being re-opened, and, ultimately, his exoneration.
Of course, if Dunn is successful, this leads to the question of whether people convicted of crimes might attempt similarly to take televised lie detector tests to win in the court of public opinion, if not in the court of law.
Inadmissible but material: Ohio Supreme Court reverses death sentence
In 2004, Vernon "Broadway" Brown was convicted and sentenced to death based upon the shooting deaths of Duane Roan and Tearle Toeran. Yesterday, in State v. Brown, the Ohio Supreme Court vacated Brown's sentences and ordered a new trial based in part upon Brady evidence that the prosecutor failed to disclose to defense counsel.
Two of the three pieces of evidence that the prosecutor failed to turn over to defense counsel were police reports, which indicated that someone other than Brown had claimed responsibility for the murders of Toeran and Roan. The Ohio Supreme Court found that the statements contained in these police reports were hearsay and thus potentially inadmissible. Nonethless, the court found that the documents were material, even if they were not directly admissible in court.
To wit, defense counsel could have called the declarants at trial; alternatively, the statements could have been used to cross-examine a key prosecution witness who claimed that Brown killed Toeran and Roan. I agree with this holding and argued as much in my article "Inadmissible but Material: Resolving the Circuit Split After Wood," which noted that there was a circuit split among federal courts, with some having a per se rule that inadmissible evidence can never constitute Brady evidence.
The Brown decision provides a good explanation of why such a per se rule is nonsensical. While evidence may be inadmissible, sometimes it can (a) directly lead to admissible evidence (defense counsel could have interviewed the declarants), or (b) itself be used at trial (to cross-examine prosecution witness(es)). In this sense, inadmissible evidence can be highly material, and a prosecutor's failure to disclose it can form the basis of a Brady violation.
We've got insurance: Odd insurance story from Alaska
A story from the Austin Personal Injury Lawyer references a post by an Alaska personal injury lawyer about how his client lost a personal injury case when he followed the bad advice of an insurance adjuster. In the post, the lawyer states that this client lost the case when the judge excluded the evidence of this bad advice because allowing it would violate [this particular judge's interpretation of] an evidence rule that keeps the jury from hearing about insurance.
That rule, ostensibly, is Alaska rule of evidence 411, which is identical to its federal counterpart. Rule 411, however, only excludes evidence of liability insurance to establish that the insured acted negligently or otherwise wrongfully (because he had insurance and wasn't worried about the consequences). While the facts in this Alaska case are not clear, it appears that an accident occurred, and then the injured individual contacted the insurance adjuster, who told him that he didn't need a lawyer. This being the case, it is difficult to see how evidence of what the adjuster told the injured individual would have been excludable under rule 411.
October 3, 2007
Boys on Film: A Military Court's Homophobic Decision
According to an article on advocate.com, a military court judge has decided to allow evidence of gay porn found on a Navy physician's home computer in his trial for wiretapping and conduct unbecoming an officer, which includes his alleged secret videotaping of midhsipman having sex.
The Military Rules of Evidence are similar to the Federal Rules of Evidence in that generally evidence of an individual's character is inadmissible to prove that the individual has a certain character trait and that the individual acted in conformity with that trait at the time of the alleged crime. Such character evidence, is, however, admissible for other purposes such as motive, common plan or scheme, knowledge, or identity.
Here, according to Marince Col. Steven Day, the judge in the case, the gay porn found on the Navy doctor's computer was admissible to establish motive -- a "possible need on his part" to view "young, athletic males" engaged in sex. Of course, this is not evidence of "motive," at all but instead (fallacious) evidence that because the Navy doctor apparently liked to view gay porn in the confines of his home, he was more likely to have broken the law and breached the trust that he had with his colleagues in the Navy by recording them while engaged in the most intimate of acts. One wonders whether the same ruling would have been made in a case where a Navy doctor had heterosexual porn on his computer and was alleged to have recorded midshipwomen having sex.
Courts have only admitted evidence of past sexual acts for other purposes such as motive or common plan or scheme when "it related directly to the victim or was the same type of activity that the defendant allegedly performed with the victim." United States v. Gillespie, 852 F.2d 475, 479 n.2 (1988). Even then, courts have been particularly wary of allowing such evidence because "it is extremely prejudicial." See id. at 479.
Of course, in this case the porn on the Navy doctor's computer was neither related to the midshipmen he allegedly videotaped and it was not the same type of activity as secretly videotaping sexual acts. Furthermore, the prejudicial effect in a military case of evidence of homosexuality is almost certainly higher than it is in the usual case. All this adds up to a horrible ruling on the part of the judge.
UPDATE: This article from The Baltimore Sun has more information, including the assertion that the Navy doctor will allegedly claim that the porn was planted on his computer by a midshipman trying to blackmail him.
Corroborate and We Make You Wait: Patent Invalidation Requires Corroborating Evidence
In Adenta GMBH v. OrthoArm and American Orthodontics, the Court of Appeals for the Federal Circuit recently applied its long-standing "rule of reason," under which one peson's testimony alone is not enough to invalidate a patent; instead, some corroborating evidence is necessary.
This leads me to wonder whether there are any other claims that require corroborating evidence in order to be proven. Most states used to have requirements that rape allegations needed corroborating evidence in addition to the alleged victim's testimony, but those requirements have been taken off the books. I'm not aware, though, of any similar rules that still exist categorically to preclude the success of certain types of claims. Is this "rule of reason" thus unique? I know that corroboration is required to admit certain evidence, such as statements against interest under Fed. R. Evid. 804(b)(3), but that seems like a different animal entirely.
Bad Cops, Bad Cops? New trial ordered for death row inmate
Judge Melinda Harmon of the United States District Court for the Southern District of Texas ordered a new trial for death row inmate Robert Fratta, who was convicted based upon evidence that he hired Howard Guidry to kill his wife in 1994. Part of Fratta's claim was that investigators lied to Guidry by telling him that his lawyer gave him permission to talk about the event when, in fact, no such conversation had taken place. Fratta's attorneys thus claimed that Guidry's confession should have been inadmissible to implicate Fratta, and Harmon agreed, holding that police deception alone secured Guidry's cooperation.
It is unsurprising that such deception would have rendered Guidry's confession inadmissible, but what I find more interesting is that the articles reporting Harmon's decision also make reference to the fact that Fratta's attorneys claimed that investiagtors "misused" hearsay evidence to secure Guidry's confession. I'm not sure how investigators could "misuse" hearsay to secure a confession in a manner which would render the confession inadmissible or how evidence could even be definitively classified as hearsay at the stage where investigators were merely interrogating Guidry. Of course, maybe this argument was rejected by Harmon as she focused solely on the lie about the lawyer. After reading Harmon's decision, it will be interesting to see what, if any, role the "hearsay" evidence played.
Rock the Vote: Does Voter Fraud Exist?
According to Professor David Schultz, claims of voter fraud in recent Presidential elections are based upon evidence, such as hearsay evidence, that would be inadmissible under the Federal Rules of Evidence. He writes as much in a short op-ed piece in the Op Ed News, in which he further states that his argument will be fleshed out in an upcoming law review article. It will be interesting to see how he applies the Rules to the evidence that is out there, and I'll follow up on this after reading the article.
October 2, 2007
Can Michael Clayton do for the Legal Thriller what Jason Bourne did for the Spy Movie?
In directing The Bourne Identity , director Doug Liman completely revitalized the spy movie, and some would say that Paul Greengrass only upped the ante with the sequels he helmed, The Bourne Supremacy and The Bourne Ultimatum. Meanwhile, the legal thriller has languished in comparison. The last legal movie I can remember that I really enjoyed was Roger Michell's Changing Lanes back in 2002.
Apparently, though, there's hope on the horizon. Coming out in limited release this Friday and expanding nationwide next week is Tony Gilroy's directorial debut, Michael Clayton, starring George Clooney as a fixer called in to clean up the mess at a large New York law firm after one of its partners has a breakdown while taking a deposition. While trying to clean things up, Clooney discovers some unsavory evidence, which leads him to question his ethical responsibilities.
There are a few reasons to believe this might be a good movie. First, while Liman and Greengrass did admirable jobs directing the Bourne movies, it was Gilroy who did an excellent job of adapting their screenplays from Robert Ludlum's potboiler novels. Second, the reviews so far have been terrific. At review-compiling site Rotten Tomatoes, Michael Clayton currently has a fresh rating of 83%. The third reason is this interview with Gilroy. As Gilroy notes in the interview, Michael Clayton is closely modeled after the case Anderson v. General Motors, which hinged on evidence not produced for discovery. If Gilroy did, in fact, hew pretty closely to the facts of that case (he also wrote the screenplay), the result might be a legal thriller that is not only enjoyable, but which is also legally accurate. Heck, some are even comparing it to Changing Lanes.
Wilkes' attorney to judge: You don't have to put on the red light
Businessman Brent Wilkes is accused of bribing former Rep. Randy "Duke" Cunningham. His trial starts on Wendesday, and celebrity attorney Mark Geragos is claiming that evidence that Wilkes and Cunningham vistied prostitues together on the ground that the prosecutor is only using the evidence to sully Wilkes' reputation. He thus claims that the evidence is inadmissible under Rule 403. Of course, one of the allegations in the case is that part of Wilkes bribery consisted of procuring prostitutes for Cunningham in exchange for securing defense contracts. Given this fact, it seems that Geragos faces an uphill battle in seeking to have the evidence excluded unless there are other factors at play.
Pon de Replay: Comparing Legal Standards to Instant Replay
With the Colorado Rockies advancing to the playoffs over the San Diego Padres in the bottom of the 13th inning based upon a phantom run, the spectre of instant replay in MLB has been raised again. This got me thinking of how the instant replay standard in college and professional footbal compares to legal standards and whether the American court system could learn a few things from the American football system.
Let's take the rules for Pac-10 football games as one example. First, the coaches for either team can ask for instant replay of certain calls. Second, the replay official can call for the review of a play. Under this second part of the rule, "whenever there is reasonable evidence to believe that an error was made in the initial on-field ruling, the play is reviewable and any reversal of an on-field ruling would have a direct, competitive impact on the game."
Looking first at the term "reasonable evidence," would this be equivalent to a finding of reasonable suspicion in criminal context or the more difficult to achieve probable cause? Second, in football games, as in trials, certain plays/judgments are reviewable while others are not reviewable. Finally, the Pac-10 rules state that the reversal of the ruling being challenged must result in a direct, competitve impact on the game. This can be seen as similar to the harmless error rule, wherein certain rulings, such as evidentiary rulings to admit/exclude evidence can be wrong and yet still not result in convictions being reversed.
In terms of what is required for reversal, the Pac-10 appears to state a clearer standard of review than the standards of review used by courts. It states that reversal is only warranted when there is "indisputable video evidence." The rule then goes on to state that indisputable video evidence consists of "sufficient, viewable camera angles that provide undeniable proof that a correction to the call is necessary." This makes me wonder whether "indisputable video evidence" would be similar to the more nebulous "beyond a reasonable doubt," "clear and convincing evidence," or "preponderance of the evidence" standards. Or is the relevant comparison to review de novo review or review for an abuse of discretion, with football review tending toward the latter?
Welcome to the Evidence Prof Blog
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.