EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, March 8, 2008

It's Fun To Stay At The YMCA: Wisconsin Judge Allows "Hearsay Within Hearsay" Testimony

A Wisconsin judge has made a seemingly confusing hearsay ruling in a preliminary hearing in a gang shooting case.  Eighteen year-old Darrell Jackson was shot twice outside a Janesville, Wisconsin YMCA on January 19th.  Prosecutors claim that those gunshots were fired by sixteen year-old gang members Anthony Moronez (who apparently is known by the nickname "Trouble") and Gregory Krukar.  Both young men have been charged with three counts of first degree reckless endangerment involving a weapon and one count of endangering safety by reckless use of a firearm and possession of a dangerous weapon by a person younger than 18.  While the facts of the case are unclear at this point, prosecutors have set forth their general theory of the case, which is that the shooting was the result of a dispute over the girl.

At the preliminary hearing in Moronez's case, Police detective Dennis LeCaptain testified that he talked to a witness who said that he was not sure who fired the shots but who indicated that he heard others talking later who said that the shooters were Krukar and "Trouble."  Defense counsel objected to this testimony on the ground that it was hearsay, but the judge overruled the objection.  Unless there are facts missing from the story reporting the article, this ruling makes no sense because the testimony contained not merely hearsay, but hearsay within hearsay.

Under Wisconsin Stat. Section 908.01(3), hearsay "is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."  Under Wisconsin Stat. Section 908.02, hearsay is inadmissible, unless there is some applicable exception.  Thus, the "witness" could not testify that he heard others saying that the shooters were Krukar and "Trouble" because it would be a statement other than his testimony at trial which would be admitted to prove the truth of the matter asserted -- that Krukar and "Trouble" were the shooters.

Here, however, it wasn't even the "witness" testifying about this statement; it was a police detective testifying that the "witness" told him that others said that the shooters were Krukar and "Trouble."  This means that there was "hearsay within hearsay" as defined in Wisconsin Stat. Section 908.05, meaning that the testimony was inadmissible unless each layer of hearsay met some applicable exception.  From what I read about the case, however, there didn't appear to be an applicable exception to either layer, making the judge's ruling erroneous.

-CM   

March 8, 2008 | Permalink | Comments (1) | TrackBack (0)

Friday, March 7, 2008

He Deserves A Break Today, Take 2: 60 Minutes Piece on Alton Logan Will Air On Sunday

Earlier, I blogged about the story of Alton Logan, the man who has been incarcerated in Illinois for 26 years despite the confession of another man to his puiblic defenders in the early '80s that he, not Logan, was the triggerman in the McDonald's robbery that led to Logan's conviction.  As I noted, the case implicates many ethical and evidentiary issues, including the attorney-client privilege, the statements against interest exception to the rule agaainst hearsay, and the precedent established by Chambers v. Mississippi, 410 U.S. 284 (1973).  This Sunday, 60 Minutes will air a piece on Logan's plight, and it will be interesting to see what Logan and others have to say.

-CM   

March 7, 2008 | Permalink | Comments (3) | TrackBack (0)

Minnesota Girl: Golden Gopher Sexual Assault Trial Reveal Differences Between Federal and Minnesota's Rape Shield Rules

Former University of Minnesota defensive back Dominic Jones will soon stand trial for sexually assaulting an 18 year-old woman in a case that reveals an interesting distinction between the Federal Rules of Evidence and the Minnesota Rules of Evidence.  On April 3, the victim allegedly drank eight shots of vodka and had sex with three other University of Minnesota football players before coming into contact with Jones.  Thereafter, Jones allegedly had sex with the victim, with the prosecutor's theory of the case being that the sexual act was sexual assault because the victim was too inebriated to consent

To prove that a sexual assault occurred, the prosecution moved to have introduced a recording of the act (and photos taken from that recording) made by another University of Minnesota football player on his cell phone.  The judge ruled that the recording and photos will be admissible at Jones' upcoming trial.  This ruling makes sense, assuming that the recording was properly authenticated, because its probative value in establishing the sexual assault was almost certainly not substantially outweighed by dangers such as the danger of unfair prejudice, making it admissible under Minnesota Rule of Evidence 403.

On the other hand, Jones' attorney has moved to admit evidence of the sex that the victim had with three other University of Minnesota football players at trial.  The judge has not ruled on this motion.  How will he rule, though?

Well, under the rape shield rule, contained in both Federal Rule of Evidence 412 and Minnesota Rule of Evidence 412, evidence of a victim's past sexual acts is generally inadmissible on the theory that jurors might think that the victim was promiscuous and thus consented to the sexual act at issue.  Under Federal Rule of Evidence 412, however, there is an exception in criminal cases, allowing for the admission of  "evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence." 

In other words, if the victim claims that she was sexually assaulted by the defendant and semen is found on her which belongs to another man, that evidence is admissible to prove that it was another man who assaulted her.  If the victim claims that she was sexually assaulted by the defendant, and she seeks to prove her case that the sex was nonconsensual because she has bruising and cuts, the defendant can prove that she engaged in another sexual act close in time to the alleged assault to prove that the other sexual act was the source of her injuries.  The "other physical evidence" portion usually applies in cases where the defendant is proving that some other man is the source of the victim's pregnancy or sexually transmitted disease.  (And there are other scenarios where this exception can come into play).

By contrast, Minnesota Rule of Evidence 412's is more limited.  It indicates that "[w]hen the prosecution's case includes evidence of semen, pregnancy or disease at the time of the incident, or in the case of pregnancy, between the time of the incident and trial, evidence of specific instances of the victim's previous sexual conduct [is admissible] to show the source of the semen, pregnancy or disease."  What is clear is that the Minnesota rule does not mention the word "injury."  Furthermore, the Supreme Court of Minnesota has found that while the Federal Rules of Evidence and several states have included “injury” in their rape shield laws, Minnesota has not. State v. Carpenter, 459 N.W.2d 121, 126 (Minn. 1990).  Moreover, in the Carpeneter case, the Court found that it could not read the term "injury" into the Rule and that the defendant's Constitutional rights were not violated by failing to include the "injury" exception.

Thus, if the victim had injuries and Jones' defense is that the other football players caused those injuries during prior sexual acts, evidence of those acts will be inadmissible even though they would be admissible in most other courts.  I'm an advocate of the rape shield rule based upon the way that rape and sexual assault victims were (mis)treated before the rule's enactment, but I can't see any logical reason for failing to include an exception to the rule when the victim has injuries and the defendant has evidence that another sexual act caused those injuries.

-CM   

March 7, 2008 | Permalink | Comments (1) | TrackBack (0)

Thursday, March 6, 2008

It's My Space. That's Why They Call It MySpace: Judge Finds Statements On Defendant's MySpace Page Are Inadmissible Hearsay

An Indiana judge has ruled that statements posted on a person's MySpace page are inadmissible hearsay.  On Tuesday, Benjamin Pomeroy was found guilty after a bench trial of two counts of class C felony operating a vehicle while intoxicated causing death.  In September 2005, Pomeroy allegedly drove into a tree on the way to a BW3, killing passengers Todd Pratt and Jason Prater.  After the accident, it was determined that Pomeroy had a blood-alcohol level of .18 percent, well over the legal limit of .08 percent.  Pomeroy denied the allegations, and while the articles on the case are unclear, it appears that he admitted being in the car but denied being the driver.

That defense was difficult to prove, however, because Pomeroy's foot was apparently severed in the accident and discovered in a tennis shoe wedged between the brake pad and the accelerator.  Emergency responder Scott Erickson also testified that when he came upon the car wreck, he saw Pomeroy hanging halfway out of the car with his pant leg caught in the driver's side door.  Of course, this evidence was sufficient to lead to Pomeroy's conviction, but the prosecutor also wanted to prove Pomeroy's guilt through allegedly incriminating statements that Pomeroy posted on his MySpace page.  The judge, however, found that these statements were hearsay without proof that Pomeroy actually created the page.  The judge accepted defense counsel's argument that "[e]ven with code numbers and other security measures..., other can create a Web site under an assumed name." 

First, the judge was wrong because this was not a hearsay issue, but an authentication issue.  Assuming that the incriminating MySpace post was made by Pomeroy, it was an admission, making it non-hearsay under Indiana Rule of Evidence 801(d)(1).  Thus, the only issue was whether the evidence at issue was what the prosecution claimed it to be, an incriminating post by Pomeroy, an issue to be resolved under Indiana Rule of Evidence 901(a).  Rule 901(a) contains a liberal rule for authenticating tangible evidence under which evidence is authenticated as long as the proponent presents "evidence sufficient to support a finding that the matter in question is what its proponent claims."

Of course, that leaves the question of whether the MySpace posts were properly authenticated as posts by Pomeroy, and it is unclear from the articles how the prosecutor sought to authenticate the posts.  It also appears that no court has addressed the issue of how MySpace pages/posts can be authenticated.  In the e-mail context, however, courts have found that "[e]-mail communications may be authenticated as being from the purported author based on an affidavit of the recipient; the e-mail address from which it originated; comparison of the content to other evidence; and/or statements or other communications from the purported author acknowledging the e-mail communication that is being authenticated." Fenje v. Feld, 301 F.Supp.2d 781, 809 (N.D. Ill. 2003). 

So, e-mails can be authenticated solely based upon the e-mail address allegedly belonging to the alleged author.  That leaves the question, which I am unable to answer based upon my MySpace naivete:  Should the same standard apply to a post on a MySpace page allegedly belonging to the alleged author? 

-CM

March 6, 2008 | Permalink | Comments (0) | TrackBack (0)

Many A New Day: Oklahoma Enacts Counterparts To Federal Rules of Evidence 414 And 415

The Oklahoma Court of Criminal Appeals' recent reversal of Anthony Paul Free's conviction for lewd molestation reveals that (1) Oklahoma did not used to have state counterparts to Federal Rules of Evidence 414 and 415; and (2) that it recently enacted such counterparts.  In 2005, Free was convicted of lewd molestation based upon his alleged molesting of a 7 year-old female relative.  At trial, the prosecution proved its case in part through evidence that Free committed sex-crimes against a 9 year-old boy in Arkansas in 1985.  In a 3-2 decision, the Oklahoma Court of Criminal Appeals found that the trial judge erred in admitting this evidence because there was no connection between the two acts, the two acts were different, the genders of the victims were different, and the previous act was so remote in time as to have little probative value.

In a footnote, however, the court indicated that in new sexual assault and child molestation cases, the Oklahoma rules of evidence will be different based upon two new statutes enacted in 2007.  These new statutes mirror Federal Rules of Evidence 414 and 415.  They state that:

     -In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant; and

     -In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.   

Thus, in essence, in any criminal trial based upon an act of sexual assault or child molestation, past acts of sexual assault and child molestation will be admissible against the defendant.  Oklahoma, however, has not enacted a counterpart to Federal Rule of Evidence 415, which allow for the admission of past acts of sexual assault and child molestation in civil cases premised upon an act of sexual assault or child molestation.

-CM

March 6, 2008 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 5, 2008

I'm So Excited: Supreme Court Of Rhode Island Finds Statements Constitute Excited Utterances Despite Declarant Having Calmed Down

In State v. Graham, 2008 WL 516562 (R.I. 2008), the Supreme Court of Rhode Island upheld both the conviction and sentence of life in prison without parole for Roger Graham, the man police claimed gunned down a Portsmouth motel manager in a murder for hire killing on New Year's Day, 2002.  The prosecution's theory of the case was that Graham was the gunman hired by Tajendra "T.J." Patel to shoot T.J.'s brother-in-law Sanjeev Patel.  T.J. allegedly hired Graham to kill Sanjeev because he blamed Sanjeev for breaking up his marriage with his estranged spouse, Komal.

Part of the testimony used to convict Graham came from Sanjeev's wife Prena.  According to Prena, on the night in question, Sanjeev left their apartment to wait on a customer in the attached Founder's Brook Motel office.  Prena then heard several rings from the sensory bell in the office, which signaled customers entering and exiting, and she heard raised voices and something crashing to the floor.  When she went to see what happened, Prena saw an African-American man (Graham is African-American) in a black jacket carrying a gun in his gloved hand, walking toward the exit.  Prena then crouched over her mortally wounded husband and directed her sister to call 911 and tell the dispatcher that "some black guy shot my husband."

At trial, the prosecution sought to corroborate this testimony through the testimony of Officer Scott Travers, one of the first responders to the 911 call.  According to Travers, when he first arrived, Patel was "very upset, her eyes were very wide open, she was in a very excited state."  He also indicated that her torso, hands, and face were covered in blood.  Travers then testified that she finally "calm[ed] down after a period of time."  The prosecutor then asked, "Was she able to provide you with any information, what did she tell you?"  Defense counsel objected that an answer would constitute hearsay, but the prosecution claimed that Prena's answer would be admissible as an excited utterance, and the trial judge overruled the objection.  Officer Travers subsequently testified that he asked Prena who shot her husband and that she responded that the shooter was a black man wearing a black jacket.

On appeal, the Supreme Court of Rhode Island found that the trial court did not err in permitting this testimony because Prena's statement to Officer Travers constituted an excited utterance.  According to the court, her statement was thus admissible through the testimony of Travers, pursuant to Rhode Island Rule of Evidence 803(2), which states that “[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition” is an exception to the rule prohibiting the admission of hearsay.  The court acknowledged that Prena had apparently "calm[ed] down" before giving her statement to Officer Travers, but it concluded that she was still under the stress of the shooting because she "still was covered in her husband's blood and she made her statements to Officer Travers shortly after she found her husband's wounded body."

This ruling appears to be consistent with prior Rhode Island precedent.  In State v. Oisamaiye, 740 A.2d 338 (R.I. 1999), the defendant was charged with elder abuse, and part of the evidence used to convict him consisted of testimony about statements made by an elderly man accusing the defendant of abuse.  The Supreme Court of Rhode Island found that even though the elderly man had calmed down before making the statements, they were admissible as excited utterances because, inter alia, he had red marks on his wrists and an apparent injury to his elbow when he made the statements. See State v. Wright, 817 A.2d 600, 607 (R.I. 2003) (construing State v. Oisamaiye as a case holding that, although the time between nursing-home patient's injuries and the statements he made after he calmed down were unknown, his statements explaining what happened were admissible under the excited-utterance exception because he was still “laboring under the stress of a startling event").       

-CM

March 5, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 4, 2008

From Music Critics' Whipping Boy To Judge's Whipping Boy: Nickelback's Chad Kroeger's Motion To Strike Breathalyzer Results Denied By Canadian Judge

There's a lot of interesting celebrity DUI news floating around the internet recently.  Yesterday saw the season premiere of TLC's "Little People, Big World," which is showing what happened during Matt Roloff's DUII trial.  I previously posted about the trial in entries on January 9th and January 11th.

Now, the frontman of music critics' favorite whipping boy, Nickelback, has set an interesting evidentiary precedent in Canada.  Lead singer Chad Kroeger (real name Chad Robert Turton) was stopped for speeding on June 22, 2006 in his Lamborghini in Canada.  The officer who pulled him over then asked him to blow in his face so that he could see if he detected alcohol on his breath.  After detecting alcohol, the officer gave Kroeger a breahthalyzer test, which indicated that his BAC was .14, well over the legal limit of .08.  The problem with this chain of events, however, is that the B.C. Supreme Court has determined that under the Canadian Charter of Rights and Freedoms, the "blowing in the face practice [is] unconstitutional." 

Kroeger thus asked that the judge hearing his case deem the breathalyzer results inadmissible because the blowing in the face practice is unconstitutional, and the officer only gave Kroeger the breahthalyzer test after using this improper practice, making the test results inadmissible as what we would call in the United States the fruit of the poisonous tree.  However, while the judge found that the officer used an improper practice, he still found the breathalyzer results admissible, concluding that the "admission of evidence obtained by a police action which violates a person's rights under the Charter, but which intrudes upon a person's body in only a minimal fashion and is not a significant intrusion, will not affect the fairness of the trial."

Prosecutor Michelle Wray has noted that the judge's decision on the "blowing in the face"' evidence is precedent setting and could be grounds for an appeal if Kroeger is convicted.  Meanwhile, defense counsel Marvin Stern noted, "It's a unique decision and so it certainly could be grounds for appeal."  He contended, "Conscriptive evidence was found to be a breach [of the Charter] and the judge included the conscriptive evidence anyway. Yes, I think it is fair to say that it's contrary to the law in British Columbia up until this time."

I don't have much familiarity with Canadian law, but the judge's decision seems to take the teeth out of the proscription.  If evidence obtained after use of the blowing in the face practice is admissible despite the practice being unconstitutional, what is the point of holding the practice unconstitutional?  It wouldn't deter police behavior, and it wouldn't protect drivers who were subjected to the practice.  Meanwhile, I have found no U.S. cases where this blowing in the face practice has been discussed.

-CM 

March 4, 2008 | Permalink | Comments (0) | TrackBack (0)

Ask The Doctor: Court of Appeals Of Texas Finds Statements Identifying Child Abuser Covered By Rule 803(4)

The Court of Appeals of Texas' recent opinion in Guzman v. State, reveals both that several Texas courts have found that Texas Rule of Evidence 803(4) covers statements identifying a child abuser but that the Court of Criminal Appeals of Texas has not yet resolved the issue.  In Guzman, Jaime Guzman was convicted by a jury of the felony offense of aggravated sexual assault of a child and assessed eighteen years in prison.  The complainant was C.G., a fourteen-year-old girl, who testified that Guzman sexually assaulted her in July 2003.  Over Guzman's objections, the prosecution corroborated C.G.'s testimony through the testimony of Dr. Jayme Coffman, who treated C.G.

Dr. Coffman testified, inter alia, "[C.G.] told me that he, meaning [Guzman], had taken her to his apartment, that he grabbed her and started kissing her neck and her mouth. She said he then put her on the couch and pulled her skirt up and then grabbed her arms and pulled them to her side and that he then unbuttoned his pants and got on top of her. At that point, she became very tearful and wouldn't talk for a few minutes."

On appeal, the Court of Appeals noted that the issue was whether C.G.'s statements to Dr. Coffman were inadmissible hearsay or whether they were admissible pursuant to Texas Rule of Evidence 803(4), which creates an exception to the rule against hearsay for "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

Guzman's argument was that C.G.'s statements -- specifically about who caused the injury and how he undressed -- were unnecessary for the doctor's treatment.  The court found, however, that previous Texas decisions had concluded that child abuse victims' statements to physicians during medical examinations identifying abusers can be “reasonably pertinent to diagnosis or treatment” because they are the type of statements reasonable relied on by physicians."  It also noted that other Texas courts had held that a physician's testimony regarding a statement identifying a defendant as the offender in a sexual assault case is admissible under Texas Rule of Evidence 803(4) because the identity is reasonably pertinent to medical diagnosis or treatment.

The Court of Appeals of Texas thus found that the trial court acted correctly in allowing Dr. Coffman's testimony, but it did note that the Court of Criminal Appeals had not yet addressed the issue.  When it does address the issue, I think it will fall in line with the other Texas courts as most courts have found that Rule 803(4) covers statements by child sexual abuse victims identifying their assailants.

March 4, 2008 | Permalink | Comments (0) | TrackBack (0)

Monday, March 3, 2008

My New Article -- Even Better Than The Real Thing: How Courts Have Been Anything But Liberal In Finding Genuine Questions Raised As To The Authenticity Of Originals Under Rule 1003

You are a judge.

(a)  The year is 1814.  A man bringing a breach of contract action seeks to introduce a scribe's handwritten copy of the contract and cannot explain his nonproduction or the original.  The defendant claims that the scribe made several material transcription errors while creating the copy.

(b)  The year 2005.  A man bringing a breach of contract action seeks to introduce a photocopy of the contract and cannot explain his nonproduction of the original.  The defendant claims that the plaintiff digitally altered material terms in the copy.

Which defendant do you believe more?

This question prompted my new article, Even Better than the Real Thing: How Courts Have Been Anything But Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003. In reality, the judge in 1814 would have excluded the scribe's copy under the common law Best Evidence Rule, which indicated that parties seeking to prove the contents of documents had to produce the originals or account for their nonproduction.  The judge in 2005 would likely find the photocopy admissible under Federal Rule of Evidence 1003, an exception to the Best Evidence Rule, which was enacted in 1975 and which indicates that "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original."

I can see an argument for siding with either the 1814 defendant or the 2005 defendant, but I think that we all can agree that there are currently significant reasons to doubt the authenticity of copies of documents, photographs, and video and sound recordings, especially when there is no explanation for the nonproduction of the original.  And based upon this doubt, courts should readily find that the opponents of duplicates raise genuine questions as to authenticity under Rule 1003(1) (Rule 1003(2) covers situations where copies fail to completely reproduce important parts of originals).  Yet case law reveals that courts presented with Rule 1003(1) challenges almost always reject them.

My article contends that courts have both failed to adopt a consistent approach to Rule 1003(1) challenges and that the scattershot approach which they have taken has resulted in an improperly narrow construction and application of the exception.  It argues that courts should instead determine whether parties opposing the admission of duplicates raise genuine questions as to the authenticity of originals by applying the same test that they use to determine whether parties opposing motions for summary judgment raise genuine issues of fact for trial.

Section I considers the origins and application of the common law Best Evidence Rule and how the invention of modern copying technologies paved the way for the adoption of Federal Rule of Evidence 1003 and state counterparts.  Section II argues that the textual similarities between Federal Rule of Evidence 1003(1) and Federal Rule of Civil Procedure 56(e)(2) supports the argument that parties opposing the admission of duplicates should be treated the same as parties opposing motions for summary judgment.  It concludes, however, that courts have required a greater evidentiary showing by parties opposing the admission of duplicates.

Section III claims that the legislative history behind Rule of Evidence 1003 provides an even stronger basis for the argument that courts should treat parties opposing the admission of duplicates in the same manner that they treat parties opposing motions for summary judgment.  It notes, however, that courts have actually construed the exception in a manner which has rendered it meaningless.  Finally Section IV contends that technological developments since Rule 1003's enactment, which have enabled nearly anyone to be able to to quickly create fairly compelling forgeries, provide another basis for using the summary judgment test in Rule 1003(1) cases.  Instead, courts have made duplicates even better than the real thing because they are largely treated the same as originals for authentication purposes, and yet originals may possess physical characteristics of the highest importance which no copying can reproduce.

-CM

March 3, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 2, 2008

Blending In: Court Finds That Documents Used To Refresh Witness' Recollection Must Be Produced In Blender Patent Dispute

My wife and I are currently trying to decide on what blender to purchase because she recently got Jessica Seinfeld's cookbook "Deceptively Delicious," and she wants a heavy duty machine that can make all of the book's recommended purees.  Of course, Seinfeld's cookbook has caused an interesting legal battle as Missy Chase Lapine has claimed that Jessica's cookbok plagiarized from her own puree cookbook "The Sneaky Chef" and that Jessica's husband, Jerry, slandered her by calling her a "wacko."  While researching blenders, however, I came across another lawsuit with an intersting evidentiary ruling.

Apparently, in 1994, blender maker Vita-Mix got a patent entitled "Method of Preventing the Formation of an Air Pocket in a Blender."  According to Vita-Mix, competitor Back to Basics infringed on this patent in the creation of its own blenders.  During a deposition in the patent infringement case, "Thomas E. Daniels, Jr. testified on behalf of [the] defendant...." Vita-Mix Corp. v. Basic Holdings, Inc., 2008 WL 495781 at *2 (N.D. Ohio 2008).  When Vita-Mix's counsel attempted to ask what documents were shown to refresh his recollection so that he could testify, defense counsel instructed Daniels not to answer. See id.  Daniels thus did not describe the contents of the documents that he was shown, but he did testify that he was given a stack of documents "several inches tall." Id.

Vita-Mix thus moved to compel the production of these documents, or, in the alternative, that Daniels' testimony be stricken pursuant to Federal Rule of Evidence 612, which states in relevant part that "if a witness uses a writing to refresh memory for the purpose of testifying, either--

     (1) while testifying, or

     (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness."

The court granted Vita-Mix's motion finding that the case before it was "a complex intellectual property dispute" and that "it would be unfair to expect it to be able to adequately cross-examine Mr. Daniels without knowing which documents refreshed his recollection and formed the basis for the corporation's knowledge on certain matters." Id. at *4.  The court also pointed out that the defendant had not raised an issue which has split courts across the country (and which I have addressed before):  whether, Federal Rule of Evidence 612 notwithstanding, documents used to refresh a witness' recollection is covered by the work product privilege?

-CM

March 2, 2008 | Permalink | Comments (1) | TrackBack (0)

Died In South Dakota, Take 2: All Charges Dropped Against David Lykken After Jailhouse Snitch Admits To Faking Tape

Earlier, I wrote about the murder trial of David Lykken.  As I noted, there were several interesting evidentiary issues in his case.  One issue was the fact that an expected key witness was fellow inmate Aloysius Black Crow.  Lykken allegedly admitted the murders to Crow, who wrote notes about the confessions and recorded them by wearing a wire.  Defense counsel claimed that the notes were hearsay and that the state couldn't prove that it was Lykken's voice on the tapes.

Well, the case took a surprising turn this week as Black Crow admitted that it wasn't Lykken's voice on the tapes.  Black Crow maintains that Lykken still confessed to him before he wore the wire.  He clams, however, that Lykken grew suspicious around the same time he started wearing the wire, leading to Black Crow getting another inmate to confess to the subject murder while pretending to be Lykken.  This discovery led to all charges being dropped against Lykken by the attorney general.

But was something else going on as well.  A commenter on my earlier post wrote, "What has been ignored in the media is that the State, in the persons of Assistant Attorney General Rod Oswald and the Cold Case agents, was told almost two years ago that the voice was not that of the defendant."  I have no way to substantiate that allegation, but if it is true, Lykken should be able to recover a significant amount of money from the state.

-CM

March 2, 2008 | Permalink | Comments (0) | TrackBack (0)