EvidenceProf Blog

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

Saturday, May 23, 2009

Can You Search Me Now?: Court Upholds Search Of Cell Phone Incident To A Lawful Arrest

A man is arrested. Pursuant to the Supreme Court's opinion in United States v. Robinson, 414 U.S. 218 (1973), "[a] full search of the person, his effects, and the area within his immediate reach at the time of a lawful custodial arrest may be conducted without regard to any exigency or the seriousness of the offense, and regardless of any probability that the search will yield a weapon or evidence of the crime for which the person is arrested." As part of a valid search incident to a lawful arrest, however, can an arresting officer search the contents of the arrestee's cell phone, and if so, how thorough can that search be? Those were the questions posed to the United States District Court for the District of Massachusetts in United States v. Wurie, 2009 WL 1176946 (D.Mass. 2009).

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May 23, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, May 22, 2009

In Treatment: Court Of Appeals Of Texas Finds Trial Court Properly Allowed For The Admission Of Child's Statements To Doctor Concerning Sexual Assault By His Father

Like its federal counterpart, Texas Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

The basis for this exception is that a patient would not lie to his doctor for fear of mistreatment and/or misdiagnosis. And the exception typically only allows for the admission of those portions of a patient's statements describing the "general character of the cause or external source" of his injury or illness and does not allow for the admissions of those portions describing the identity of the person causing the injury or illness, if applicable. But what if the patient is a child? Does the child understand the consequences of lying to a doctor, making his statements sufficiently reliable? And if the source of a child patient's injuries is his parent, is a statement of identification reasonably pertinent to diagnosis or treatment, making statements of identification admissible? These were the questions that the Court of Appeals of Texas recently addressed in Weeks v. State, 2009 WL 1325461 (Tex.App.-Hous. [14th Dist.] 2009).

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May 22, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 20, 2009

The Bloodhound Gang, Take 2: Supreme Court Of South Carolina Tweaks Test For Admissibility Of Bloodhound Tracking Evidence

Back in February, I wrote a post about how "courts generally admit evidence that bloodhounds tracked down a defendant if the prosecution can establish" certain elements. As support for this proposition, I cited to the opinion of the Court of Appeals of South Carolina in State v. White, 642 S.E.2d 607, 614 (S.C.App. 2007), in which the court found that evidence that bloodhounds tracked down a defendant is admissible if the prosecution can establish that the bloodhounds

(1)...are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2)...possess these qualities, and have been accustomed and trained to pursue the human track; (3)...have been found by experience reliable in such pursuit; [and] (4)...were put on the trail of the guilty party, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.

The Court of Appeals of South Carolina in White found the prosecution established these four elements and thus affirmed the defendant's conviction, prompting his appeal to the Supreme Court of South Carolina which affirmed but did so only after tweaking the above test in State v. White, 2009 WL 1108881 (S.C. 2009).

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May 20, 2009 | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 19, 2009

Plain Truth: Court Of Appeals Of Minnesota Fails To Conduct Plain Error Review Of Business Records Ruling

In relevant part, Federal Rule of Evidence 803(6) provides a 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.

Thus, before a business record/report may be admitted under Rule 803(6), the proponent must have a custodian or other qualified witness testify that the record/report satisfies all of the elements of the Rule. Ostensibly, the prosecution failed to present such a witness in State v. Forbes, 2009 WL 1181914 (Minn.App. 2009), but, based upon the defendant's failure to object, the Court of Appeals of Minnesota concluded that he had waived the issue on appeal. I disagree.

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May 19, 2009 | Permalink | Comments (2) | TrackBack (0)

Monday, May 18, 2009

The Text-Message Mistrial: Judge Declares Mistrial After Witness Receives Text-Messages While On The Witness Stand

Back in March, I did a post about jurors improperly exchanging e-mails during trial and deliberations and concluded: "I have to wonder whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point."  Later that month, I did a post about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing. A recent case from Miami presented a slightly different problem: A witness engaging in text-messaging while he was on the witness stand.

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May 18, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 17, 2009

Under Construction: Ninth Circuit Resolves Interplay Between Rules Of Evidence 608 And 609

Federal Rule of Evidence 609 allows for witnesses to be impeached through evidence of their prior convictions. Meanwhile, Federal Rule of Evidence 608(b) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

So, how do these two Rules work together? Does the above cited language from Rule 608(b) mean that evidence relating to a conviction is treated solely under Rule 609? Or does this language indicate that the defendant's actions which led to his conviction can be inquired into on cross-examination and that they can be proven by extrinsic evidence? This was the question presented to the Ninth Circuit in United States v. Osazuwa, 2009 WL 1232107 (9th Cir. 2009).

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May 17, 2009 | Permalink | Comments (0) | TrackBack (0)