EvidenceProf Blog

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

Saturday, August 15, 2009

Fighter's Chance: Utah Court Of Appeals Affirms Dismissal Of Charges Against Alleged Football Brawler After City Fails To Produce Original Recordings

Like its federal counterpartUtah Rule of Evidence 1003 provides 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.  

As I noted in my article, Even Better than the Real Thing, courts very rarely find genuine questions raised as to the authenticity of originals, meaning that mechanically produced duplicates are almost never excluded under the Best Evidence Rule. In its recent opinion in American Fork City v. Asiata, 2009 WL 2392496 (Utah.App. 2009), the Utah Court of Appeals did in fact find duplicates inadmissible, but it didn't (really) do so by relying on Utah Rule of Evidence 1003.

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August 15, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, August 14, 2009

The Glowers Of Guatemala: Eleveth Circuit Deems Internet Press Release Inadmissible In Forum Non Conveniens Appeal

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(1) , or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

It is my belief that the Eleventh Circuit badly misconstrued this "business records" exception to the rule against hearsay in its recent opinion in Aldana v. Del Monte Fresh Produce N.A., Inc., 2009 WL 2460978 (11th Cir. 2009).

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August 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 13, 2009

The Lone Ranger And Tonto Fistfight In Heaven, Take 5: First Draft Of My Amicus Curiae Brief

I have written four previous posts (here, here, here, and here) about the plight of Kerry Dean Benally. Basically, Benally was convicted of assaulting a Bureau of Indian Affairs Officer with a deadly weapon. After Benally's conviction, however, a juror came forward and submitted an affidavit indicating that, contrary to jurors' claims during voir dire that race would not play a factor during their deliberations, several jurors made racially derogatory comments during deliberations (you can get more details in my prior posts). The United States District Court for the District of Utah found this affidavit to be admissible and vacated Benally's conviction, but the Tenth Circuit reversed, finding the affidavit to be inadmissible under Federal Rule of Evidence 606(b); it then later denied Benally's en banc request.

Benally's case played a large role in prompting me to write my forthcoming 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. Well, now Benally has filed a petition for writ of certiorari with the United States Supreme Court, and I was approached last week to write an amicus curiae brief in support of him. Here is a link to my first run at that brief, which will be edited and made to conform with rules for submission of amicus curiae briefs before the deadline of August 21st:

Download Amicus

I post this now so that any professors who read this blog and agree with the general arguments in it can e-mail and let me know if they want to join in on the brief. Those interested can e-mail me at 7millerc@jmls.edu.


August 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Just The Facts, Ma'am: Court Of Appeals Of Minnesota Notes Distinction Between Legal And Factual Testimony Under Rule 704

Like Federal Rule of Evidence 704(a)Minnesota Rule of Evidence 704 provides that "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." The Committee Comment to that Rule goes on to state that "[e]xpert and lay witnesses will not be precluded from giving an opinion merely because the opinion embraces an ultimate fact issue to be determined by the jury." Instead, the Comment indicates that "If the witness is qualified and the opinion would be helpful to or assist the jury as provided in rules 701-703, the opinion testimony should be permitted." In turn, Minnesota Rule of Evidence 701 states that lay opinion testimony is only admissible if it is "helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue." These are the basic principles governing the admission of lay opinion testimony on ultimate issues, and, as the recent opinion of the Court of Appeals of Minnesota in State v. Ngacah, 2009 WL 2431994 (Minn.App. 2009), makes clear, the Committee Comment to Rule 704 also provides the answer to the ultimate answer to whether lay opinion testimony embracing an ultimate issue is admissible.

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August 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 12, 2009

Can I See Some Identification?: Death Of Victim Precludes Admission Of Pre-Trial Identifications

Sometimes, the legal system works in troubling ways. If defendants shoot a victim, and the victim identifies the defendants as his shooters before trial (during a lineup, photo array, etc.), that identification would be admissible at the defendants' trial as long as the victim testifies at trial. But, as in the case of two Memphis men, if the victim identifies the defendants as his shooters before trial and then dies before trial, that identification would be inadmissible in the defendants' murder trial because the victim could not testify and be subject to cross-examination.

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August 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 11, 2009

Chain Of Command: Military Case Reveals Interesting Exception To Military Rule Of Evidence 606(b)

The recent opinion of the United States Court of Appeals for the Armed Forces in United States v. Matthews, 68 M.J. 29 (U.S. Armed Forces 2009), was fairly straightforward with regard to Military Rule of Evidence 606(b). An appellant who was convicted by a military judge sitting alone as a general court-martial appealed to the United States Army Court of Criminal Appeals. As part of that appeal, the military judge testified regarding his deliberations, which later resulted in the United States Court of Appeals for the Armed Forces remanding the case because it held that the portions of the military judge's testimony in which he explained his deliberative process and reasoning at the court-martial were unreviewable evidence that could not have been considered by the Court of Criminal Appeals (The court did not reverse because it did not know the extent to which the Court of Criminal Appeals considered the military judge's testimony). Before reaching this conclusion, the court rejected the argument that the military judge's testimony was inadmissible under Military Rule of Evidence 606(b). This makes sense because Federal Rule of Evidence 606(b) is the anti-jury impeachment rule, and its military counterpart, Military Rule of Evidence 606(b), is the anti-military commission member (i.e., military juror) impeachment rule, and the military judge was a judge. What is interesting about Military Rule of Evidence 606(b), though, is that it has one 

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August 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, August 10, 2009

Without Prejudice: Colorado Court Of Appeals Find Jurors Were Not Exposed To Extraneous Prejudicial Information In Car Crash Appeal

Like its federal counterpartColorado Rule of Evidence 606(b) provides 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 assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

But what exactly constitutes extraneous prejudicial information? The recent opinion of the Colorado Court of Appeals in Kendrick v. Pippin, provides maybe the best (or at least the most comprehensive) answer to that question that I have seen in a judicial opinion.

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August 10, 2009 | Permalink | Comments (1) | TrackBack (0)

Sunday, August 9, 2009

Sudden Impact: New Illinois Public Act Will Permit Admission Of Victim Impact Statements Against Defendants Found Not Guilty By Reason Of Insanity

Traditionally (but not exclusively), a victim impact statement has been "a statement read into the record during sentencing to inform the judge or jury of the financial, physical, and psychological impact of the crime on the victim and the victim's family." Black's Law Dictionary 1598 (8th ed. 2004) As the Supreme Court put it in Payne v. Tennessee, 501 U.S. 808, 825 (1991), a victim impact statement is a "form or method of informing the sentencing authority about the specific harm caused by the crime in question, evidence of a general type long considered by sentencing authorities." But what should happen when a defendant is found not guilty by reason of insanity and being committed rather than sentenced? Should victim impact statements be allowed in this situation as well? The answer is "yes" according to a new Public Act signed into law by Illinois Governor Pat Quinn.

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August 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, August 8, 2009

A Question Of Your Honesty: Supreme Court Of New Hampshire Finds That Receiving Stolen Property Is Not A Crime Of Dishonesty/False Statement

Like its federal counterpartNew Hampshire Rule of Evidence 609(a)(2) provides that:

For the purpose of attacking the character for truthfulness of a witness,...evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

A question that has divided courts across the country is whether a conviction for receiving stolen property/theft qualifies for admission as a crime of dishonesty and/or false statement under Federal Rule of Evidence 609(a)(2) and state counterparts. The most recent court to weigh in was the Supreme Court of New Hampshire in its recent opinion in State v. Holmes, 2009 WL 2366291 (N.H. 2009), in which it answered this question in the negative.

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August 8, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, August 7, 2009

The Only Easy Day Was Yesterday: Former Navy SEAL Trainee First To Have Murder Conviction Erased By New Virginia Writ Of Actual Innocence Rule

The date was June 19, 1995. I had just graduated from First Colonial High School in Virginia Beach. Down the street from the school, Jennifer Evans, a 21 year-old premedical student from Georgia was being murdered outside a nightclub. Two friends and fellow Navy SEAL trainees, Billy Joe Brown and Dustin A. Turner, were eventually convicted of her murder. Years later, Brown converted to Christianity and admitted in a taped confession that he was Evans' sole killer, spontaneously choking her in a car parked outside a nightclub. That confession formed the basis for the Court of Appeals of Virginia, in Turner v. Commonwealth, 2009 WL 2369552 (Va.App. 2009), to grant Turner's petition for writ of actual innocence. Before 2004, however, Turner would have been out of luck.

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August 7, 2009 | Permalink | Comments (1) | TrackBack (0)

Thursday, August 6, 2009

Stop Snitchin', The Aftermath: Maryland Case Might Be First To Apply State's Forfeiture By Wrongdoing Rule

Some readers might remember the infamous Stop Snitchin' DVD that surfaced on Baltimore's streets in 2004, featuring homegrown NBA player Carmelo Anthony and made to convince criminal informants to stop "snitching," or informing, to law enforcement, lest they face injury or death. What many likely do not know is that the DVD as well as numerous witnesses being murdered in Baltimore led Maryland to adopt Maryland Rule of Evience 5-804(b)(5), a counterpart to the federal forfeiture by wrongdoing rule. And now, the State may finally have an opportunity to use its new forfeiture rule.

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August 6, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 5, 2009

Preemptive Strike: Eighth Circuit Finds Defendant's Testimony On Prior Convictions Waives Ability To Appeal

Federal Rule of Evidence 609(a)(1) provides that

evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403 , if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

Obviously, it can be very damaging to a defendant if testifies during direct examination and then the prosecutor impeaches him through some prior conviction during cross-examination. It is easy to see how jurors would partially or entirely discredit what the defendant said based upon such impeachment. And that is why defense counsel will sometimes diminish the taint of such impeachment by eliciting such impeachment evidence from the defendant himself during cross-examination. The problem: such a tactic forecloses an appeal on the impeachment issue, as is made clear by the recent opinion of the Eighth Circuit in United States v. El-Alamin, 2009 WL 2366384 (8th Cir. 2009).

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August 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 4, 2009

Bad Cops, Bad Cops: Tenth Circuit Questionably Affirms District Court Decision Limiting Cross-Examination Of Undercover Officer

Federal Rule of Evidence 609(a)(1) provides that

evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

As I have noted several times on this blog (such as here), courts have generally applied this Rule and state counterparts liberally and admitted evidence of convictions even when they (in my opinion) really should not have. Meanwhile, in relevant part, Federal Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

This begs the question: Have courts similarly been liberal in allowing cross-examination of witness regarding specific instances of (mis)conduct? I haven't read enough case law on the issue to reach a definitive conclusion, but if the recent opinion of the Tenth Circuit in United States v. Beltran-Garcia, 2009 WL 2231667 (10th Cir. 2009), is representative, the answer would be "no."

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August 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, August 3, 2009

Rescue 911: Oklahoma Appellate Court Reverses Murder Conviction Based Upon Confrontation Clause Violation

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana. I think that these latter two opinions explain the recent opinion of the Court of Criminal Appeals of Oklahoma in Hunt v. State, 2009 WL 2195422 (Okla.Crim.App. 2009), but that court only cited Crawford and did not cite either of these opinions, making its conclusion confusing.

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August 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, August 2, 2009

But It Was Harmless: Court Of Criminal Appeals of Tennessee Finds Erroneous Impeachment Ruling To Be Harmless Error

Tennessee Rule of Evidence 609(a)(3) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:...

(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.

As the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Johnson, 2009 WL 2226171 (Tenn.Crim.App. 2009), makes clear, drug convictions are generally inadmissible under this Rule. But, as that opinion also makes clear, even when trial courts erroneously admit evidence of such convictions, appellate courts often find that the error was harmless.

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August 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, August 1, 2009

Now (Un)Available: Court Of Appeals Of Ohio Finds Appellant Failed To Prove Declarant Unavailability In Bank Robbery Appeal

Like its federal counterpartOhio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that 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, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true.

Like its federal counterpart, Ohio's Rule only applies if the declarant is "unavailable" at trial, with one ground for a court finding a declarant being unavailable being that the declarant "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." And, as the recent opinion of the Court of Appeals of Ohio in State v. Thornton, 2009 WL 2231791 (Ohio App. 12 Dist. 2009), makes clear, courts strictly construe this ground.

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August 1, 2009 | Permalink | Comments (0) | TrackBack (0)