Saturday, May 30, 2009
Pursuant to Federal Rule of Evidence 1101(d)(3), the Federal Rules of Evidence do not apply in revocation hearings. This does not, however, mean that hearsay evidence is per se admissible at such hearings as the Third Circuit made clear in its recent opinion in United States v. Lloyd, 2009 1459216 (3rd Cir. 2009).
Friday, May 29, 2009
Drag Me To Hell: Court Finds Discriminatory Remarks Not Precluded By Rule Against Hearsay In Employment Discrimination Suit
Federal Rule of Evidence 801(c) indicates that
"Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
But, as the United States District Court for the Middle District of Pennsylvania found in its recent opinion in E.E.O.C. v. Schott North America, 2009 WL 310897 (M.D. Pa. 2009), discriminatory remarks made about the suitability of particular employees which serve as circumstantial evidence of a discriminatory atmosphere in an employment discrimination suit are not hearsay because such statements are not offered to prove the truth of the matters asserted.
Thursday, May 28, 2009
Public Enemy?: Eleventh Circuit Finds No Plain Error In Business Records Ruling In Health Care Fraud Appeal
The recent opinion of the Eleventh Circuit in United States v. Hoffman-Vaile, 2009 WL 1458567 (11th Cir. 2009), raised but did not resolve an interesting question: Do the records of a private administrator that processes and reviews claims for Medicare qualify as business records under Federal Rule of Evidence 803(6) or public records under Federal Rule of Evidence 803(8)? And the reason that the question is interesting is that the classification of such records could have drastic consequences in terms of their admissibility at criminal trials.
Wednesday, May 27, 2009
In relevant part, Federal Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Usually, a prosecutor seeks to introduce Rule 404(b) evidence to prove that a criminal defendant committed the subject crime, but sometimes a defendant seeks to introduce so-called reverse-Rule 404(b) evidence to prove that somebody else committed the subject crime. In its recent opinion in United States v. Duran-Moreno, 2009 WL 1290010 (D.N.M. 2009), the United States District Court for the District of New Mexico addressed this latter scenario.
Tuesday, May 26, 2009
In the beginning of March, a colleague, knowing that I had published two pieces in online law review supplements (here and here), asked if I had a list of online law review supplements because she was interested in possibily writing a piece for one of them. In writing my prior pieces, I actually had created a list of sorts and sent it to her. At the time, though, I realized that she would not be able to submit her proposed original piece to some of these supplements because they only accepted responses to pieces published in their print law reviews. I thus decided it would be useful to create a submission guide for online law review supplements similar to the one that Allen Rostron and Nancy Levit created for traditional law reviews, which would contain information about the types of pieces accepted, submission information, and submission format.
I started by creating a rough draft of a submission guide from information culled from each online supplement's website and then sent that draft to the editors of each journal for additions, deletions, and revisions. The product of that work is the Submission Guide for Online Law Review Supplements, available for download for free from SSRN. The Guide will be updated an an annual basis and as law reviews created new online supplements. Indeed, since the start of this project, two law review have created new online supplements -- Cardozo Law Review's de∙novo and Minnesota Law Review's Headnotes -- so I expect updates to the Guide to be fairly frequent (Mitchell Rubinstein over at Adjunct Law Prof Blog also posted a list of online law review supplements, which includes some speciality journals not included in my Guide, which only covers general online law reviews). Of course, if any reader is aware of any new online supplements or supplements I missed, please let me know.
Monday, May 25, 2009
An out-of-court statement made by a child who is under twelve years of age at the time of trial or hearing describing any sexual act performed by, with, or on the child or describing any act of physical violence directed against the child is not excluded as hearsay under Evid. R. 802 if...[,inter alia,]...the following apply:
(1) The court finds that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness that make the statement at least as reliable as statements admitted pursuant to Evid. R. 803 and 804....
(2) The child's testimony is not reasonably obtainable by the proponent of the statement.
(3) There is independent proof of the sexual act or act of physical violence.
In State v. Said, 644 N.E.2d 337 (Ohio 1994), the Supreme Court of Ohio added a requirement to Ohio Rule of Evidence 807: the requirement that the child declarant be evaluated at a competency hearing to determine whether the child was "competent" at the time that he made the out-of-court statement. In State v. Silverman, 2009 WL 961431 (Ohio 2009), the Court removed this requirement.
Sunday, May 24, 2009
Broken Record? Court Of Appeals Of North Carolina Finds Tape Recorded Statements Can Be Admissible Under Rule 803(5)
A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.
It seems clear that this Rule covers something written by a witness, but does it also cover a tape recorded statement by a witness? That was the question recently presented to the Court of Appeals of North Carolina in State v. Wilson, 2009 1373205 (N.C.App. 2009).