EvidenceProf Blog

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

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Saturday, May 16, 2009

The Cherry On Top Of The Prosecutorial Sundae: Why Improperly Admitted Rule 704 Evidence Will Almost Never Lead To A Reversal

Federal Rule of Evidence 704 provides that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

After reading the recent opinion of the Fifth Circuit in United States v. Setser, 2009 WL 1299562 (5th Cir. 2009), I made a realization regarding this Rule: Testimony improperly admitted under it will almost never lead to a reversal.

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May 16, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, May 15, 2009

I Need You To Aid And Abet Me: Court Precludes Jury Impeachment In Aiding And Abetting Appeal

In Hunter v. Felker, 2009 WL 1246691 (N.D. Cal. 2009), David Hunter brought a federal habeas action in the United States District Court for the Northern District of California, seeking relief from his convictions for assault with a firearm and being a felon in possession of a firearm. Hunter, however, ran into a popular obstacle on this blog: Federal Rule of Evidence 606(b)

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

Thursday, May 14, 2009

Caller ID: Supreme Court Of Tennessee Finds That Anonymous Statements Cannot Qualify As Statements Against Interest

Like its federal counterpart, Tennessee Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. 

But what happens when the statement at issue was made anonymously? That was the question presented to the Supreme Court of Tennessee in State v. Kiser, 2009 1313564 (Tenn. 2009). And, like many other courts, Tennessee's highest court found that anonymous statements cannot qualify as statements against interest for hearsay purposes.

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May 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 13, 2009

I'd Rather Be Fishing: Court Refuses To Allow Jury Impeachment Based Upon Juror Changing Vote To Guilty To Make Annual Fishing Trip

In State v. Miller, 2009 WL 1081745 (Wis.App. 2009), James D. Miller appealed from his conviction for first-degree reckless injury while armed with a dangerous weapon and aggravated battery while armed with a dangerous weapon, alleging, inter alia, juror misconduct. His claim: One of the jurors found him guilty so that he could be dismissed in time for his annual fishing trip. Unfortunately for Miller, the Court of Appeals of Wisconsin didn't take the bait.

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May 13, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 12, 2009

13 Going On 30: Illinois Man Becomes Youngest Person In The U.S. To Be Wrongfully Convicted And Exonerated

More than 16 years ago, 13 year old Thaddeus Jimenez was arrested for a street gang murder on Chicago's Northwest side. At the time, the judge sentenced him to 50 years imprisonment, describing Jimenez as a "little punk, probably too young to shave, but old enough to commit a vicious murder." The judge was wrong. On May 1, Jimenez became what his lawyers say is likely to be the youngest person in U.S. history to be wrongfully convicted of a crime and exonerated after Cook County Criminal Court Judge Joseph Claps vacated Jimenez's conviction and released him at the age of 30.

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May 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, May 11, 2009

Into the Dawn To Montana, Take 2: House Bill 295 Dies In The Senate Judiciary

Back in February, I wrote a post about Montana House Bill 295, which would have allowed for the admission of evidence of

(1) prior sexual assaults against criminal defendants charged with sexual assault, (2) prior acts of child molestation against criminal defendants charged with child molestation, and (3) prior acts of sexual assault and child molestation against civil parties in actions in which a claim for damages or other relief is predicated on that party's alleged commission of conduct constituting the offense of sexual assault or child molestation.

In other words, the Bill would have created Montana counterparts to Federal Rules of Evidence 413414, and 415.

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May 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 10, 2009

Immune System: Supreme Court Of Minnesota Finds That Court-Appointed Experts Are Entitled To Immunity From Lawsuits

Federal Rule of Evidence 706(a) (and many state counterparts) provides in relevant part that "[t]he court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection." So, let's say that the court appoints one of these experts and that expert acts in a manner that would constitute malpractice or breach of contract if the expert were retained by one of the parties? This was the situation presented to the Supreme Court of Minnesota in Peterka v. Dennis, 2009 WL 1228506 (Minn. 2009). Its conclusion? Court-appointed experts are entitled to immunity and cannot be sued by litigants.

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