Saturday, March 28, 2009
Layering Effect: Ninth Circuit Finds Public Record With Hearsay Within Hearsay Was Improperly Admitted
The recent opinion of the Ninth Circuit in United States v. Marguet-Pilado, 2009 WL 792500 (9th Cir. 2009), addresses a topic that I just covered in my Evidence class yesterday: If a business or public record contains statements made by someone outside the business or public agency, you have hearsay within hearsay, and each level of hearsay must be admissible under some applicable exception.
Friday, March 27, 2009
Federal Rule of Evidence 606(b) generally precludes courts from peering behind the jury room curtain after a verdict has been rendered. Well, to put it more specifically, the Rule does not preclude courts from such peering, but it does preclude litigants from using what is found to challenge the verdict. And, as the recent opinion of the United States District Court for the Western District of Michigan in Torrez v. McKee, 2009 WL 528950 (W.D. Mich. 2009), makes clear, what courts find is frequently disturbing.
Thursday, March 26, 2009
Recalculating, Take 4: Court Of Appeals Of New York Hears Oral Argument In Warrantless GPS Tracking Appeal
On several previous occasions on this blog (here, here, and here), I have addressed the issue of whether police are required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. In the second of those posts, I addressed the case of People v.Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), where
a police officer, in the course of investigating a series of burglaries and acting without a warrant, attached a GPS device under the bumper of Scott Weaver's van while it was parked on a public street. Based upon the data retrieved from this device and other evidence, Weaver and a codefendant were arrested and charged with burglary in the third degree and grand larceny in the second degree in relation to a theft from a K-Mart Store, as well as burglary in the third degree and petit larceny in relation to a theft from a meat market six months earlier. After he was convicted of these crimes, Weaver appealed to the appellate division, claiming, inter alia, that the trial court erred in denying his motion to suppress all of the evidence obtained against him as a result of the warrantless placement of the GPS device on his van.
Wednesday, March 25, 2009
The Lone Ranger And Tonto Fistfight In Heaven, Take 4: Tenth Circuit Denies En Banc Request In Juror Racism Appeal
An officer spotted Kerry Dean Benally, a Native American man, who was allegedly driving erratically in the White Mesa area in southeastern Utah. The officer than followed Benally to his residence. At this point, according to the officer, Benally, who appeared to be intoxicated, punched the officer and struck him in the face with a flashlight. Benally was charged with assault on a federal officer, and trial began and ended quickly with the jury finding Benally guilty as charged.
After the verdict was entered, however, a problem soon arose. When the jury was selected to hear the case, all seated jurors denied that they had any preconceived notions about Native Americans. According to juror Karen Cano, however, some jurors were either fooling the court or fooling themselves. Cano came forward after the verdict and told the court that the jury foreman told the other jurors that he had lived on or near a reservation and that he told the other jurors, "When Indians get alcohol, they all get drunk" and that "when they do get drunk, they get wild or violent." According to Cano, a female juror then seemed to agree with the foreman, saying something about what happens when "they get drunk." Cano also claimed that two other jurors talked about wanting to send a message to the reservation.
Tuesday, March 24, 2009
Cross The Pages Of The Magazine: Court Notes That Consumer Complaints Are Often Admissible Under The Residual Hearsay Exception
When litigants are unsuccessful in introducing statements under the traditional exceptions to the rule against hearsay, they typically attempt to rely upon Federal Rule of Evidence 807, the residual exception, as a last resort. Usually, courts rebuff such attempts, but as the recent opinion of the United States District Court for the Western District of Pennsylvania in F.T.C. v. Magazine Solutions, 2009 WL 690613 (W.D. Pa. 2009), makes clear, courts generally have found that consumer complaints qualify for admission under Rule 807.
Monday, March 23, 2009
Bringing Good Things To Light?: Action Against GE Healthcare Reveals That Illinois Still Uses The "Control Group" Test For Corporate Attorney-Client Privilege Claims
In Upjohn v. United States, 449 U.S. 383 (1981), the Supreme Court explicitly rejected the "control group" test for determining which communications between a lawyer and members of a corporation are protected from disclosure by the attorney-client privilege. And while Upjohn was not binding upon the application of state rules of evidence/privilege, many states subsequently reached the same result. But as the recent opinion of the United States District Court for the Northern District of Illinois in Resurrection Healthcare and Factory Mutual Insurance Company v. GE Healthcare, 2009 WL 691286 (N.D. Ill. 2009), makes clear, Illinois is not one of those states.
Sunday, March 22, 2009
The Things We Do For Love: Tenth Circuit Refuses To Craft "Homosexual Exception" To Bias Questioning
The recent opinion of the Tenth Circuit in United States v. Baldridge, 2009 WL 692107 (10th Cir. 2009), reveals that lawyers are given wide latitude to inquire into potential biases that witnesses harbor against or in favor of the parties in a lawsuit. And according to the court in Baldridge, that latitude extends to questions regarding a homosexual relationship between witness and party.