EvidenceProf Blog

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

Monday, October 12, 2009

Judge As Super Witness?: Supreme Court Of Tennesse Grapples With Whether And When Judges Should Be Able To Testify

Like its federal counterpart, Tennessee Rule of Evidence 605 provides that "[t]he judge or chancellor presiding at the trial may not testify in that trial. No objection need be made in order to preserve the point." But what happens when the prosecution wants to have the judicial commissioner who made the initial determination of probable cause testify at a defendant's trial? That was the problem recently addressed by the Supreme Court of Tennessee in State v. Nash, 2009 WL 3191550 (Tenn. 2009).

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

Sunday, October 11, 2009

Wii Fit?: District Of Colorado Decides To Apply Colorado Privilege Law In Class Action Suit Against Nintendo For Defective Wiimote Wrist Straps

This summer, my wife and I purchased the Nintendo Wii, and we love it. My current favorite game is table tennis on Wii Sports Resort because, with the new Wii Motion Plus, I can put as much topsin on my forehand as Rafeal Nadal and as much slice on my backhand as Steffi Graf. After numerous attempts, I finally beat my nemesis, Lucia, and I am on my my way to breaking 2,000 points with my Mii. That said, before playing, I always make sure that the wrist strap on my Wiimote is tight because I have heard stories of Wiimotes slipping out of peoples' hands and destroying TVs. According to the plaintiffs in a class action suit against Nintendo, even this precaution is insufficient because the straps on Wiimotes are defective. At this point in the action, in Elvig v. Nintendo of America, Inc., 2009 WL 3048445 (D. Colo. 2009), however, the United States District Court for the District of Colorado merely had to determine which state's privilege law to apply.

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October 11, 2009 | Permalink | Comments (2) | TrackBack (0)

Saturday, October 10, 2009

Modify Before Codify: Court Of Appeals Of Michigan Reveals Michigan's Failure To Codify Jury Impeachment Rule

Back in July, I posted an entry about the Supreme Court of Michigan creating Michigan Rule of Evidence 611(b), which allows judges to tell witnesses and parties what they can and cannot wear in the courtroom. As far as I know, no other state has codified such a rule in its rules of evidence, and, as I noted at the time, I think that the rule implicates religious liberty. But my question in this post is not whether Michigan Rule of Evidence 611(b) is valid. Instead, my question is how Michigan can get around to creating a rule governing the attire of witnesses and parties and can't get around to creating a rule of evidence governing jury impeachment.

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

Friday, October 9, 2009

Not That Big Of A Stretch: District Of Connecticut Opinion Finds "Rough Notes" Are Discoverable

A suspect is interrogated by law enforcement agents. During the interrogation, those agents take "rough notes." The suspect is later charged, and a trial date is set. The defendant thereafter requests an order requiring the government to preserve the rough notes and disclose them to him at least 2 weeks prior to trial. The government claims that the court should deny the motion because it doesn't plan to use the notes at trial. Should the court grant the motion? As the recent opinion of the United States District Court for the District of Connecticut in United States v. Jacobs, 2009 WL 2710233 (D. Conn. 2009), makes clear, some courts say "no," while some courts say, "yes," with courts in the Second Circuit falling into the latter category.

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

Thursday, October 8, 2009

Crackback: District Court Of Appeal Of Florida Finds Defendant's Racial Slur Should Have Been Exlcuded In Drug Dealing Appeal

One white officer and two black officers posing as drug buyers approach a man, and the white officer asks him for cocaine. The man refuses but later approaches the two black officers and offers to sell them cocaine, saying “I got you, but I ain't going to deal with you in front of this cracker,” referring to the white officer. The man is later charged with, inter alia, delivery of cocaine within one thousand feet of a convenience business. At trial, should the officers be able to reference the fact that the defendant used the word cracker? According to a Florida trial court, the answer is "yes." According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Rich v. State, 2009 WL 3189364 (Fla.App. 4 Dist 2009).

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

Wednesday, October 7, 2009

Can I Get A Receipt For That?: Court Of Appeals Of Minnesota Finds Best Evidence Rule Not Violated By Testimony Regarding Receipt Not Offered To Prove Its Contents

Like its federal counterpartMinnesota Rule of Evidence 1002 provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Legislative Act.

As the language of this Best Evidence Rule indicates, however, it only applies when a part is seeking to prove the content of a writing, recording, or photograph. It doesn't apply when a witness references a writing, recording, or photograph, not to prove its contents, but to establish some other consequential fact. This is the reason why the Court of Appeals of Minnesota rejected the appellant's best evidence challenge in its recent opinion in State v. Wiskow, 2009 WL 3172156 (Minn.App. 2009).

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October 7, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 6, 2009

Stupid Human Tricks: Halderman's Attorney Claims Evidence Of David Letterman's Sexual Harrassment Will Be Admissible At His Client's Attempted Grand Larceny Trial

I'm sure that by now most readers have heard about the alleged attempt by longtime 48 Hours Mystery producer Robert "Joe" Halderman to extort money from David Letterman. Basically, the state contends that the extortion began with Halderman "dropping off, in Letterman's limousine, a purported screenplay outline about a talk-show host who is brought down by an affair, as well as copies of sections of [Stephanie] Birkitt's diaries." And the state contends that it ended with Letterman giving Halderman a fake $2 million check at the behest of the Manhattan D.A.'s office and Halderman being busted when he tried to deposit the check at the bank. Halderman was subsequent charged with attempted grand larceny in the first degree under New York Penal Law Sections 110 and 155.42. Now, Halderman's attorney, Gerald Shargel, claims that he has evidence of Letterman's sexual harassment of his staff members, which he plans to "shar[e] in the courtroom," and some attorneys claim that the evidence could indeed be admissible. I don't see how.

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

Monday, October 5, 2009

Liar, Liar: Court Of Appeals Of Texas Opinion Reveals Impairment/Disability Impeachment Exception

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.

Therefore, if the prosecution impeaches a defendant, defense counsel might respond by calling a witness to testify concerning the defendant's reputation for honesty. The prosecution could thereafter ask the witness whether he had heard that the defendant committed some specific act of dishonesty but could not prove that act through extrinsic evidence. Texas Rule of Evidence 608(b) is more restrictive. It provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

As the recent opinion of teh Court of Appeals of Texas, Houston, in State v. Moreno, 2009 WL 3126607 (Tex.App.-Houston [14 Dist.] 2009), makes clear, however, this restriction does not apply specific act evidence tends to establish an impairment or disability affecting a witness' credibility.

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

Sunday, October 4, 2009

The Efficiency Expert: WDNY Opinion Reveals Circuit Split Over Vocational Expert Testimony In Disability Adjudications

It is well established that the Federal Rules of Evidence do not apply to disability adjudications. That said, as with other proceedings in which the Rules do not apply, they remain relevant. Therefore, in its recent opinion in Piekarski v. Astrue, 2009 WL 299277 (W.D.N.Y 2009), which involved a disability adjudication, the United States District Court for the Western District of New York had to determine whether a vocational expert used reliable methods. In resolving that issue, the court noted but found that it did not have to resolve a circuit split on the reliability issue.

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

Saturday, October 3, 2009

Suppression Vs. Exclusion: Missouri Court Of Appeals Denies Interlocutory Appeal By Reading Motion To Suppress As Motion To Exclude

Suppression of evidence is not the same thing as exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence that is not objectionable as violating any rule of evidence, but that has been illegally obtained. The recent opinion of the Missouri Court of Appeals, Western District, in State v. Moad, 2009 WL 3075576 (Mo.App. W.D. 2009), explains why this distinction matters.

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October 3, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, October 2, 2009

I'm Going To Admit It: Puerto Rico Case Reveals Circuit Split Over Application Of Admissions Rule To Governmental Agents In Criminal Cases

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

A statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement, in either an individual or a representative capacity.

Under this Rule, three things are clear. Statements by a civil plaintiff are admissible against him, statements by a civil plaintiff are admissible against him, and statements by a criminal defendant are admissible against him. But are statements of governmental agents admissible against the prosecution in a criminal cases? As the recent opinion of the United States District Court for the District of Puerto Rico in United States v. Lopez-Ortiz, 2009 WL 2709369 (D. Puerto Rico 2009), makes clear, there is a split among courts, with the First Circuit finding that such statements can be admissible as admissions of party-opponents.

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

It Was Two Years Ago Today...

that I launched EvidenceProf Blog. On that day, I had posts about comparing legal standards to instant replay, a scandal involving a businessman and prostitutes, and the movie Michael Clayton. I'm proud of the fact that since that day, I have been able to post at least one entry per day over the next two years. I hope that readers have enjoyed the blog to this point, and I hope to continue to post entries about recent cases and developments in evidence law that are useful to both lawyers and laypersons.


October 2, 2009 | Permalink | Comments (3) | TrackBack (0)

Thursday, October 1, 2009

Avoiding The Google Mistrial: Story Reveals Measures Oklahoma Judge Has Taken In Light Of New Technologies

For years, judges instructed jurors not to discuss cases with non-jurors and to avoid any news coverage. Now, with the advant of new technologies and the so-called Google mistrial, some judges are supplementing those instructions.

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