EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Thursday, December 31, 2009

What Are Your Intentions?: Seventh Circuit Finds Prior Drug Crimes Admissible To Prove Intent Under Rule 404(b) In New Year's Eve Related Case

Federal Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

So, can the prosecution present evidence of a defendant's prior drug conviction(s) in a subsequent drug prosecution where intent is an element? That was the question faced by the Seventh Circuit in its recent opinion in United States v. Harris, 587 F.3d 861 (7th Cir. 2009). The court's answer? There is tension in its case law on the issue in general, but evidence of a defendant's prior drug conviction is always admissible in cases in which the defendant, while admitting possession of a drug, denies the intent to distribute it.

Continue reading

December 31, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 30, 2009

Rejecting The Twinkie Defense: Court Of Appeals Of Utah Finds Expert Testimony On Intoxication Inadmissible To Establish Diminished Capacity

Probably the most famous trial where a defendant raised the defense of diminished capacity was the trial of Dan White for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. This defense is much maligned because most people think that White was able to convince the jury that he was merely guilty of voluntary manslaughter and not murder in the first degree by using the "Twinkie defense" to prove diminished capacity, i.e., that he should not have been held fully responsible for the killings because he was "suffering" from the sugar rush of eating a lot of Twinkies. But that's not actually what happened. Instead, as Michael R. Dreeben notes in The Right to Present a Twinkie Defense, 9 Green Bag 2d 347, 348 n.5 (2006),

The "Twinkie defense" owes its name to the 1979 trial of Dan White in San Francisco for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. In fact, White did not use a “junk food” defense, but instead argued diminished capacity because of his episodes of depression. White's allegedly poor diet played only a small part in his lawyers' attempt to explain his plunge into a depressed state that led him to snap. Nevertheless, the phrase "Twinkie defense" has entered the lexicon to describe a seemingly absurd defense strategy that somehow works. 

In its recent opinion in State v. Argumendo-Rodriguez, 2009 WL 4681285 (Utah. App. 2009), the Court of Appeals of Utah was presented with a quasi-Twinkie defense, but the court found the defense to be without merit.

Continue reading

December 30, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 29, 2009

As I Lay (Not Quite) Dying: Ohio Opinion Reveals Why Excited Utterance Exception Is Useful Backup To Dying Declaration Exception

Like its federal counterpartOhio Rule of Evidence 803(2) provides an exception to the rule against hearsay for:

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.  

Also like its federal counterpartOhio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay, in a prosecution for homicide of in a civil action or proceeding, for:

a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impeding death.  

The recent opinion of the Court of Appeals of Ohio, Seventh District, in State v. McGee, 2009 WL 4547716 (Ohio App. 7 Dist. 2009), underscores the fact that if you can't quite get a statement admitted as a dying declaration, you likely can get it admitted as an excited utterance.

Continue reading

December 29, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, December 28, 2009

Expert In Lay Witness Clothing: Louisiana Opinion Reveals Rule 704 Problem With Police Officers Testifying As Lay Witnesses

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As the Advisory Committee Note to the amendment to Rule 701 makes clear, Rule 701(c) was added in the wake of the Supreme Court's opinion in Daubert v. Merrdll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." I am equally worried now, however, that prosecutors are evading the requirements set forth in Federal Rule of Evidence 704 and state counterparts through the simple expedient of proffering an expert in lay witness clothing. A good example of this can be found in the recent opinion of the Court of Appeal of Louisiana, Fifth Circuit, in State v. Collins, 2009 WL 4640646 (La. App. 5 Cir. 2009).

Continue reading

December 28, 2009 | Permalink | Comments (1) | TrackBack (0)

Sunday, December 27, 2009

Unlimited: Court Of Appeals Of Texas Opinion Reveals That Most Hearsay Admitted Under An Exception Is Not Subject To A Limiting Instruction

Texas Rule of Evidence 105(a) provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

As the recent opinion of the Court of Appeals of Texas, Houston, in Green v. State, 2009 WL 4575146 (Tex.App.-Houston [14 Dist.] 2009), makes clear, however, statements offered under an exception to the rule against hearsay are usually admissible for all purposes, meaning that they are not subject to limiting instructions.

Continue reading

December 27, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, December 26, 2009

Without Prejudice: Court Of Criminal Appeals Of Tennessee Finds Trial Court Improperly Failed To Weigh Prejudice In Felony Impeachment Ruling

Yesterday's post noted that Minnesota's "whole person" approach fails to take into account the particular probative value of a prior conviction. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Hall, 2009 WL 4642585 (Ten.Crim.App. 2009), dealt with the opposite problem: a court failing to take into the particular prejudicial effect of a prior conviction.

Continue reading

December 26, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, December 25, 2009

Just Forget It: Oklahoma Court Finds Calendar Entry About Nike Air Max 2 Shoe Purchase Admissible As A Recorded Recollection In Christmas Related Case

Like Federal Rule of Evidence 803(5)12 O.S.2001 Section 2803(5) provides an exception to the rule against hearsay for:

A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.  

As the recent opinion of the Court of Criminal Appeals of Oklahoma in Sanchez v. State, 2009 WL 4797497 (Okla.Crim.App. 2009), makes clear, the exact wording of this rule is very important. In order for a "recorded recollection" to be admissible, the witness does not need a significant lack of recollection, just an insufficient recollection to testify fully and accurately.

Continue reading

December 25, 2009 | Permalink | Comments (1) | TrackBack (0)

Thursday, December 24, 2009

Later On, We'll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions

Like its federal counterpartIndiana Rule of Evidence 801(d)(2)(E) provides that

[a] statement is not hearsay if...[t]he statement is offered against a party and is... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

As the text of this Rule makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated. And that is exactly what the Court of Appeals of Indiana found in determining that the trial court erred in admitting an alleged co-conspirator admission in its recent opinion in French v. State, 2009 WL 4842607 (Ind.App. 2009). I thus agree with the court's conclusion on that issue, but I am not sure that I agree with the court's conclusion that this error was harmless.

Continue reading

December 24, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 23, 2009

Mistaken Identification: Supreme Court Of Utah Reverses Past Precedent, Allows Expert Testimony On Inaccuracy Of Eyewitness Identifications

I have done several posts on this blog (herehereherehere, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

Continue reading

December 23, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 22, 2009

The Best Of Everything, Take 3: Evidence Professors Submit Amicus Brief In Best Evidence Case

A few days ago, I posted an entry about the filing of a petition for a writ of certiorari with the Supreme Court in United States v. Smith2009 WL 1452045 (4th Cir. 2009), the case in which I think that the Fourth Circuit made an erroneous Best Evidence ruling. Thereafter, Matthew R. Segal, the Assistant Public Defender who filed the petition, forwarded me an amicus brief submitted in support of the petition by Georgetown University Law Center  Professor Paul Rothstein and University of California, Berkeley, School of Law Professor Eleanor Swift. I strongly agree with the points made in the brief and have provided a link below from which reader can download the brief.

Download Amicus Brief

-CM

December 22, 2009 | Permalink | Comments (0) | TrackBack (0)

Make Me Whole, Take 4: Court Of Appeals Of Minnesota Calls Out Supreme Court Of Minnesota Over "Whole Person" Approach To Impeachment

Wow! I have railed against Minnesota's "whole person" approach to the felony conviction impeachment rule on several occasions, with my my most recent post on the topic coming a few days ago. Well, it appears that someone agrees with me. That someone? The Court of Appeals of Minnesota in its recent opinion in State v. Peters, 2009 WL 4795971 (Minn.App. 2009).

Continue reading

December 22, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, December 21, 2009

Incomplete Ruling: Third Circuit Opinion Implies That Violations Of Rule 106 Can Never Lead To A Reversal On Appeal

Federal Rule of Evidence 106, the rule of completeness, provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

There is a split among courts as to whether this is merely a rule regarding timing or also a rule regarding admissibility. In other words, all courts agree that when a party introduce a writing or recorded statement or a part thereof, the Rule allows the opposing party to contemporaneously present any other part or any other writing or recorded statement, as long as the part or statement is otherwise admissible. Some courts claim, however, that the Rule also allows for the admission of any other part or any other writing or recorded statement, regardless of whether the part or statement is otherwise admissible. In other words, these courts find that the Rule can transform otherwise inadmissible evidence into admissible evidence. Other courts disagree with this conclusion, but, as noted, all courts agree that the Rule is a rule regarding timing. And yet, in its recent opinion in United States v. Evans, 2009 WL 4810545 (3rd Cir. 2009), the Third Circuit seemed to imply that an erroneous ruling precluding a party from contemporaneously presenting evidence can never form the basis for a reversal.

Continue reading

December 21, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 20, 2009

Article Of Interest: No Strict Rules Of Evidence In Labor And Employment Arbitration, By Professor Michael Z. Green

I have written several previous posts on this blog about cases in which the Federal Rules of Evidence or state counterparts do not apply (see, e.g., herehereherehere, and here). What I have found in most of these cases, though, is that the judge will still look to the principles underlying the rules of evidence in making evidentiary rulings. For instance, in disability adjudications, many Administrative Law Judges make an inquiry similar to the Rule 702 inquiry in determining whether to admit vocational expert testimony (although there is a split on the issue). In a Board of Veterans' Appeals case from earlier this year, a court looked to Federal Rule of Evidence 803(7) for persuasive guidance on an evidentiary issue. And, under the residuum rule, many administrative judges will end up applying the hearsay rules to determine the propriety of administrative proceedings.

Before reading the recent terrific article, No Strict Rules of Evidence in Labor and Employment Arbitration, 15 Tex. Wesleyan L. Rev. 533 (2009), by Texas Wesleyan University School of Law Professor Michael Z. Green, I would have expected that the same held true in labor and employment arbitration proceedings. As the article makes clear, however, this has not been the case, and arbitrators need to change their ways.

Continue reading

December 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Saturday, December 19, 2009

Make Me Whole, Take 3: Minnesota Opinion Involves Yet Another Disastrous Application Of Minnesota's "Whole Person" Rationale

I have done a couple of previous posts (here and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. Atkinson, 2009 WL 4573726 (Minn.App. 2009).

Continue reading

December 19, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, December 18, 2009

Not So Refreshing, Take 2: Minnesota Opinion Reveals Difference Between Minnesota And Federal Rule of Evidence 612

Federal Rule of Evidence 612 provides that if a "writing" is used to refresh a witness' recollection,

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 recent opinion of the Court of Appeals of Minnesota in State v. Mashek, 2009 WL 4573703 (Minn.App. 2009), reveals an important distinction between Minnesota Rule of Evidence 612 and its federal counterpart.

Continue reading

December 18, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 17, 2009

Not So Refreshing: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule of Evidence 612

Federal Rule of Evidence 612 indicates that:

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, 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. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Kirk, 2009 WL 4547584 (N.J.Super.A.D. 2009), makes clear, there is an important distinction between New Jersey Rule of Evidence 612 and its federal counterpart.

Continue reading

December 17, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 16, 2009

The Best Of Everything, Take 2: Federal Public Defender Files Petition For Writ Of Certiorari With Supreme Court In Best Evidence Case

Back in June, I posted an entry about the Fourth Circuit's recent opinion in United States v. Smith2009 WL 1452045 (4th Cir. 2009). In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack cocaine, using and carrying one or more firearms during and in relation to a drug-trafficking crime, and possessing one or more firearms, having been previously convicted of a felony. To prove the interstate nexus element of the felon in-possession count, the government presented the testimony of Special Agent Andrew Cheramie of the ATF that firearms recovered from Smith's apartment had been manufactured in states other than North Carolina. Smith's attorney objected to the proposed testimony of Special Agent Cheramie on the ground that it would violate Federal Rule of Evidence 1002. He argued that Cheramie's testimony, which was based on written reference materials and ATF computer databases, none of which were offered into evidence, violated the Best Evidence Rule. The district court overruled the objection and allowed Cheramie to testify without requiring him to introduce any reference materials into evidence

The Fourth Circuit subsequently affirmed, and I disagreed with its holding, concluding that:

Clearly, the government sought to prove the contents of the writings and other materials from which Cheramie learned that firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. As Smith noted, Cheramie had no independent personal knowledge of where those firearms were manufactured. Instead, his knowledge of where those firearms were manufactured was dependent on the writings and other materials. Thus, his testimony was, in effect, proving the contents of the writings and other materials because he had no personal knowledge of where the firearms were manufactured. Accordingly, Cheramie's testimony triggered the Best Evidence Rule, and the Fourth Circuit's conclusion was erroneous.   

Well, yesterday, I got an e-mail from Matthew R. Segal, an Assistant Public Defender, who informed me that he has filed a petition for writ if certiorari with the Supreme Court for Smith. You can download a copy of the petition by clicking on the link below:
 

I agree with the points made in the petition and continue to believe that Cheramie's testimony was received in violation of the Best Evidence Rule. According to Segal, "The government has waived its right to file an opposition brief, so the case has been distributed for the Supreme Court's conference of January 8, 2010."

-CM

December 16, 2009 | Permalink | Comments (6) | TrackBack (0)

Waiving Away Uniformity: D.C. Opinion Reveals Why Rule 502 Will Not Harmonize Privilege Waiver Practices

The new Federal Rule of Evidence 502(b) provides that:

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

1. the disclosure is inadvertent;

2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and

3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

The new Rule was intended to bring "uniformity across the circuits to their once differing treatment of the effect of certain inadvertent disclosures of privilege materials." As can be seen from the recent opinion of the United States District Court for the District of Columbia in Amobi v. District of Columbia Department of Corrections, 2009 WL 4609593 (D.D.C. 2009), however, the Rule is unlikely to bring the desired uniformity.

Continue reading

December 16, 2009 | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 15, 2009

Curiosity Killed The Jury, Take 3: Baltimore Sun Lists Several Instances Of Technology-Assisted Jury Misconduct

Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Later that month, I posted an entry about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing.  In May, I  posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. And in November, I posted an entry about three more instances of curiosity killing the jury. More recently, an article in Sunday's Baltimore Sun lists several other instances of such jury misconduct.

Continue reading

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

Monday, December 14, 2009

Forfeit Victory: Florida Opinion Reveals That Florida Has Not Adopted The Forfeiture By Wrongdoing Doctrine

Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing doctrine, provides an exception to the rule against hearsay for 

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

As the recent opinion of the District Court of Florida, First District, in Chavez v. State, 2009 WL 4591048 (Fla.App. 1 Dist. 2009), makes clear, however, the common-law hearsay exception of forfeiture by wrongdoing is not authorized under Florida's Evidence Code, unlike numerous other states' evidence codes.

Continue reading

December 14, 2009 | Permalink | Comments (2) | TrackBack (0)