Saturday, May 9, 2009
Speaking Ill Of The Dead: Supreme Court Of Minnesota Dodges Question Of Whether Dying Declaration Declarants Can Be Impeached Through Prior Convictions
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant’s hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
The clear language of this rule makes the recent opinion of the Supreme Court of Minnesota in State v. Hall, 2009 WL 1228555 (Minn. 2009), confusing.
Friday, May 8, 2009
Razing Arizona: Court Of Appeals Of Arizona Disastrously Mischaracterizes Amendment To Plea Bargaining Portion Of Rule 410
In 2006, I wrote the article Caveat Prosecutor: Where Courts Went Wrong in Applying Robertson's Two-Tiered Analysis to Plea Bargaining, and How to Correct Their Mistakes, 32 New Eng. J. on Crim. & Civ. Confinement 209 (2006). The article concerned Federal Rule of Evidence 410, which renders inadmissible, inter alia, statements made during plea negotiations and argued that courts "should adopt a version of 'caveat prosecutor' under which a prosecutor, who does not procure a waiver of the accused's rights or affirmatively explain to the accused that a meeting is not a plea discussion, assumes the risk that the accused's statements are inadmissible because they were made during plea bargaining or an attempt to open plea bargaining." In its recent opinion in State v. Campoy, 2009 WL 1124384 (Ariz.App. Div. 2 2009) the Court of Appeals of Arizona decided to construe its state counterpart to Federal Rule of Evidence 410, "narrowly, consistent with its original intent," i.e., against the defendant. The court got it wrong.
Thursday, May 7, 2009
I have written four posts on this blog (here, here, here, and here) about court opinions and articles addressing the issue of whether police should be required to obtain a search warrant before attaching a GPS device to a suspect's vehicle. Those opinions and articles dealt with the Fourth Amendment (and state counterpart) implications of such "unwarranted" behavior, but a new article in InformationWeek calls into question whether GPS data is reliable enough to be admissible as expert evidence.
Wednesday, May 6, 2009
After a man is shot, his shooter is charged with attempted murder and claims that he was acting in self-defense. The prosecution responds by calling a detective, who is not qualified as an expert witness in the area of crime-scene investigation or reconstruction, to testify as a lay witness that the shooting could not have happened the way that the defendant claimed it did. The per curiam opinion finds that this testimony was not impermissible "ultimate issue" testimony. A dissenting (in part) judge counters that the detective's conclusion was a "meaningless assertion." My conclusion: Both sides missed the key issue in the case.
Tuesday, May 5, 2009
Call The Doctor: New Hampshire Court Finds That Opponent Bears Burden Of Proving That Author Of Business Record Is Not An Expert
In relevant part, Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
Under this Rule, the opponent of a business record bears the burden of proving that “the source of information or the method or circumstances of preparation lack trustworthiness." Meanwhile, in relevant part, Federal Rule of Evidence 702 indicates that opinion testimony is admissible by a witness qualified as an expert by knowledge, skill, experience, training, or education." Under this Rule, the proponent of such opinion testimony bears the burden of proving that the person who will render it is in fact an expert.
So, when a party seeks to intrdouce into evidence an alleged expert's business record, who bears the burden of proof? Does the proponent have to prove that the person preparing the report is in fact an expert, or does the opponent have to prove that the source of information indicates lack of trustworthiness? According to the recent opinion of the United States District Court for the District of New Hampshire in Aumand v. Dartmouth Hitchcok Medical Center, 2009 WL 1164548, the answer in the opponent, and I strongly disagree.
Monday, May 4, 2009
Excuse Me: Seventh Circuit Finds That Rule 703 Does Not Create An Expert Exception To Witness Sequestration
Federal Rule of Evidence 615(3) states that
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of...(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause.
Meanwhile Federal Rule of Evidence 703 states in relevant part that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." In its recent opinion in United States v. Olofson, 2009 WL 1162468 (7th Cir. 2009), the Seventh Circuit had to answer the question of whether Rule 703 is...an...exemption for expert witnesses from Rule 615 sequestration." And it answered that question in the negative.
Sunday, May 3, 2009
Reefer Madness: Judge Precludes Impeachment Based Upon Witness' Assurance That Marijuana Did Not Impair His Observations
The recent opinion of the Court of Appeals of Texas in Woodard v. State, 2009 WL 1124385 (Tex.App.-Hous. 2009), reveals that, unlike Federal Rule of Evidence 608(b), Texas Rule of Evidence 608(b) does not permit an attorney to cross-examine a witness regarding specific instances of (mis)conduct probative of the credibility of the witness. However, the opinion also makes clear that this proscription does not apply when the (mis)conduct is contemporaneous with the crime at issue. But, what if the misconduct is pot smoking, and a witness tells the court that his pot smoking earlier in the day did not "in any way affect" what he saw that night? According to the judge in Woodard, you believe him.