Saturday, May 2, 2009
Mommie Dearest: Supreme Court Of Wisconsin Gives Appellant New Trial After Judge Failed To Grant Motion to Strike Judge's Mother From The Jury Pool
You are a judge, and your mother is a prospective juror. Based upon the relationship, defense counsel moves to strike the mother for cause. The prosecution opposes the motion. What do you do? Well, according to a circuit court judge in Wisconsin, you deny the motion. And according to the recent opinion of the Supreme Court of Wisconsin in State v. Tody, 2009 WL 1151985 (Wis. 2009), that was the wrong decision.
Friday, May 1, 2009
Federal Rule of Evidence 803(8)(B) (like most state counterparts) provides an exception to the rule against hearsay for
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.
What happens, though, when the prosecution seeks to present into evidence records of routine, nonadversarial matters made in a nonadversarial setting by police? There's a split among courts, with some finding that such records can be admitted as business records under Federal Rule of Evidence 803(6) because they are not the type of records intended to fall under Federal Rule of Evidence 803(8)(B)'s criminal trial exclusion and other courts applying the Rule's language to exclude such records. The recent opinion of the Intermediate Court of Appeals of Hawai'i in State v. Fitzwater, 2009 WL 1112602 (Hawai'i App. 2009), reveals that Hawai'i courts fall in the former camp.
Thursday, April 30, 2009
Everything's Bigger In Texas?: Opinion Reveals Four Key Differences Between Federal And Texas Statement Against Interest Exceptions
The recent opinion of the Court of Appeals of Texas in Chaney v. State, 2009 WL 1086952 (Tex.App.-Houston [1 Dist.] 2009), reveals that Texas' statement against interest exception to the rule against hearsay is different from its federal counterpart in four material regards.
Wednesday, April 29, 2009
It's Settled: Sixth Circuit Finds Rule 408 Doesn't Bar Settlement Negotiation Evidence From Being Used To Prove Minimum Contacts
In order for a forum state (and thus its federal courts) to have personal jurisdiction over a nonresident defendant even though the defendant was not personally served within the forum state, the defendant must, inter alia, have minimum contacts with the forum state such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. Meanwhile, Federal Rule of Evidence 408 states:
(a) Prohibited uses.--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.
(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution
In SunCoke Energy, Inc. v. MAN Ferrostaal Aktiengesellschaft, 2009 WL 1034990 (6th Cir. 2009), the Sixth Circuit had to address the question of whether evidence of settlement negotiations is admissible to establish the aforementioned minimum contacts. The Sixth Circuit found that it is, and I agree.
Tuesday, April 28, 2009
The Shield And The Sword: Supreme Court Of New Hampshire Incorrectly Finds No Waiver Of Attorney-Client Privilege In Implied Covenant Appeal
It is well established that evidentiary privileges cannot be used as both a shield and a sword. For example, a criminal defendant cannot seek to selectively or partially disclose exculpatory statements that he made to his attorney in confidence (sword) while still invoking the attorney-client privilege to preclude the prosecution from discovering incriminatory statements that he made to the same attorney in confidence (shield). And yet, in its recent opinion in Livingston v. 18 Mile Point Drive, Ltd., 2009 WL 1098455 (N.H. 2009), this is excatly what the Supreme Court of New Hampshire allowed the plaintiff to do.
Monday, April 27, 2009
I Put A Spell On You: Supreme Court Of Illinois Reveals That The State Per Se Precludes Hypontically Refreshed Testimony By Any Witness Besides The Criminal Defendant
In Rock v. Arkansas, 483 U.S. 44 (1987),
Vicki Rock was charged with manslaughter in connection with the shooting death of her husband. When Vicki could not remember the precise details of the shooting, her attorney suggested that she submit to hypnosis to refresh her memory. Vicki was thereafter hypnotized by a neuropsychologist and subsequently "recalled" that she had a gun in her hand that accidentally discharged when her husband grabbed her arm during a struggle. At trial, however, based upon the prosecution's motion, the court only allowed Vicki to testify concerning what she remembered before she was hypnotized because it "decided to follow the approach of States that ha[d] held hypnotically refreshed testimony of witnesses inadmissible per se."
The Supreme Court reversed, finding that the application of a per se rule precluding the admission of hypnotically refreshed testimony by a criminal defendant violates the right to present a defense. The Court's opinion, however, did not address the issue of whether courts can apply per se rules precluding the admission of hypnotically refreshed testimony by anyone besides criminal defendants, and the recent opinion of the Supreme Court of Illinois in People v. Sutton, 2009 (Ill. 2009), reveals that Illinois has such a per se rule.
Sunday, April 26, 2009
Gangster No. 1: Court of Appeals of Minnesota Finds Statements Made During Concealment Phase Of Conspiracy Qualify As Co-Conspirator Admissions
Minnesota Rule of Evidence 801(d)(2)(E) indicates that a statement is not hearsay if the statement is offered against a party and is
a statement by a coconspirator of the party. In order to have a coconspirator’s declaration admitted, there must be a showing, by a preponderance of the evidence, (i) that there was a conspiracy involving both the declarant and the party against whom the statement is offered, and (ii) that the statement was made in the course of and in furtherance of the conspiracy.
And, as the recent opinion of the Court of Appeals of Minnesota in State v. Neiss, 2009 WL 1046515 (Minn.App. 2009), makes clear, a statement is made "in furtherance of" a conspiracy even if it is made during the concealment phase of the conspiracy.