EvidenceProf Blog

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

Saturday, April 11, 2009

Ford Tough?: Sixth Circuit Reverses Excited Utterance Ruling Against Ford Based Upon Odd Test

The recent opinion, Maggard v. Ford Motor Company, 2009 WL 928604 (6th Cir. 2009), makes it clear that the Sixth Circuit has added one foundation factor to the excited utterance exception to the rule against hearsay and subtracted another. In looking at the way in which that court analyzes excited utterances, however, I would characterize the result more as strange than unsettling.

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April 11, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, April 10, 2009

Potential Vs. Actual: Third Circuit Finds That Rule 408 Doesn't Apply To General Release Signed By Age Discrimination Plaintiff

 Federal Rule of Evidence 408 states in relevant part that

Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

There are thus two foundational elements that must be satisfied for evidence of alleged settlement negotations to be deemed inadmissible: (1) there must have been a claim, and (2) that claim must have been disputed as to validity or amount. And the problem for the plaintiff in Seasonwein v. First Montauk Securities Corp., 2009 806637 (3rd Cir. 2009). was that the general release he claimed that he executed during settlement negotations was executed before a claim existed.

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April 10, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 9, 2009

I Won't Be The Judge Of That: Texas Appeal Reveals That The Lone Star State Doesn't Allow For Judicial Interrogation

The recent opinion of the Court of Appeals of Texas in Clark v. State, 2009 WL 857607 (Tex.App.-Deaumont 2009), reveals that, unlike the Federal Rules of Evidence, the Texas Rules of Evidence do not allow for judicial interrogation of witnesses. And while I disagree with the Texas approach, I think that it tells us something important about the role of the judge at trial.

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April 9, 2009 | Permalink | Comments (0) | TrackBack (1)

Wednesday, April 8, 2009

In Treatment?: Supreme Court Of Mississippi Finds Medical Treatment/Diagnosis Applied To Mother's Statements Identifying Child's Sexual Abuser

The recent opinion of the Supreme Court of Mississippi in Valmain v. State, 2009 WL 863471 (Miss. 2009), addressed two important aspects of the statements for purposes of medical treatment/diagnosis exception to the rule against hearsay: (1) Do the statements at issue have to come from the (prospective) patient, and (2) are statements identifying a child sexual abuser inadmissible if the abuser does not live with the child? The court answered each question in the negative, and I agree with each conclusion.

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

Tuesday, April 7, 2009

An Analog Rule in a Digital World?: Court of Appeals of Indiana Precludes Jury Impeachment Based Upon Text Message Found in Defendant's Cell Phone

(Cross-posted on PrawfsBlawg)

I noted in my first post here that I planned to do all of my posts this month on the grading and evaluation of students, but I came across an opinion today that I wanted to share with the wider audience of PrawfsBlawg because it deals with an issue that is becoming impossible to ignore:  How do we deal with the increasing intersection between adavnced technology and the right to trial by jury? A recent New York Times story identified the Google mistrial, i.e., the increasing use of Blackberrys and iPhones  by jurors gathering information about cases and wreaking "havoc on trials around the country, upending deliberations and infuriating judges." Last week, CrimProf Blog did a post about the judge in the trial of Brooke Astor's son prohibiting Blackberry use by jurors.  The week before the New York Times article, I had posted an entry on my blog about an appeal in which the EleventCircuit refused to allow jurors to impeach their verdict after trial through allegations that "jurors allegedly exchang[ed] e-mail both during trial and during deliberations." At the time I mused that "[t]his was undoubtedly the correct decision under [Federal Rule of Evidence 606(b)], but I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." 

Well, today, I read the recent opinion of the Court of Appeals of Indiana in Hape v. State, 2009 WL 866857 (Ind.App. 2009), and while it deals with a slightly different issue, it prompts me to wonder whether judges are as ill-equipped as Rule 606(b) to address what courts should do when technology has encroached upon the jury deliberation process. The issue: What should be done when a juror comes forward after trial and claims that jurors retrieved incriminating text messages from a cell phone that was admitted into evidence, but without either party or the court knowing that the messages existed.  According to the Court of Appeals of Indiana, the answer was "nothing." And according to me, that answer was wrong.

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

Monday, April 6, 2009

Her Own Private Idaho: Supreme Court Of Idaho Applies State Of Mind Exception To Omitted Spouse Appeal

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will. 

Prior to last week, I had never seen a court apply the last clause of Federal Rule of Evidence 803(3) or a state counterpart. That all changed, however, with the recent opinion of the Supreme Court of Idaho in In re Estate of Montgomery, 2009 863105 (Idaho 2009). 

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

Sunday, April 5, 2009

Refreshing Refresher: Supreme Court Of Idaho Opinion Nicely Lays Out Contours Of Refreshing Recollection Rule

The recent opinion of the Supreme Court of Idaho in Thomson v. Olson, 2009 884940 (Idaho 2009), contains a nice explanation of how litigants can and cannot use "documents" to refresh the recollection of a witness.  It also teaches the important but oft-forgotten lesson that the party using a "document" to refresh a witnesses recollection cannot introduce that document into evidence while the opposing party can.

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