EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, June 13, 2009

I Want A Lawyer...If I Go To Jail: Supreme Court Of Iowa Finds Conditional Request For Counsel Insufficient To Invoke Fifth Amendment Right To Counsel

DETECTIVE: Um, you have the right to a lawyer, talk to a lawyer for advice before I ask any questions and with you before-during questioning if you wish. If you can't afford one, one will be appointed to you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop answering at any time. You also have the stop right to stop answering at any time until you talk to a lawyer. And I will give you a copy of this in writing. I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing.

EFFLER: I do want a court-appointed lawyer.

DETECTIVE: Okay.

EFFLER: If I go to jail.

In the following exchange, has Effler, the criminal defendant, invoked his Fith Amendment right to counsel. According to the recent opinion of the Supreme Court of Iowa in State v. Effler, 2009 WL 1491444 (Iowa 2009), the answer is, "No." 

Continue reading

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

Thursday, June 11, 2009

Lay Witnesses Under The Influence: Supreme Court Of Delaware Finds Lay Witness Properly Rendered Testimony Identifying Methamphetamine

Like its federal counterpartDelaware Rule of Evidence 701 indicates that

If [a] witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702.

In Campbell v. State, 2009 WL 1463460 (Del.Supr. 2009), the Supreme Court of Delaware had to address the issue of whether a habitual drug user could offer lay opinion testimony identifying a substance that he purchased from the defendant as methamphetamine. And, following the lead of several other courts, the court found that he could.

Continue reading

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

Cause of Death: Virginia Case Reveals That The Commonwealth Has No Criminal Counterpart To Federal Rule Of Evidence 703

Federal Rule of Evidence 703 states that

The 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. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

As the recent opinion of the Court of Appeals of Virginia in Jones v. Commonwealth, 2009 WL 1438264 (Va.App. 2009), makes clear, however, Virginia does not have a state counterpart to Federal Rule of Evidence 703, at least in criminal cases. 

Continue reading

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

Tuesday, June 9, 2009

The (Non)Science Of Fear: Florida Court Finds Lay Witness Should Have Been Able To Testify That Defendant Appeared Afraid In Murder Appeal

Federal Rule of Evidence 701 indicates that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Florida's counterpart, Fla. Stat. Section 90.701, is a bit more restrictive. It indicates that

If a witness is not testifying as an expert, the witness's testimony about what he or she perceived may be in the form of inference and opinion when:

(1)  The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2)  The opinions and inferences do not require a special knowledge, skill, experience, or training.

As the above language makes, clear, however, even in trials in Florida state courts, lay witnesses should be able to testify that a defendant appeared fearful before committing a violent act if that defendant is claiming self-defense at trial. And that was indeed the conclusion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Bryant v. State, 2009 WL 1531656 (Fla.App. 4 Dist. 2009).

Continue reading

June 9, 2009 | Permalink | Comments (0) | TrackBack (0)

The Areas Of My Expertise: Alabama Federal Court Allows Expert Eyewitness Testimony Despite Eleventh Circuit Precedent

Should expert witnesses be able to testify regarding the unreliability of eyewitness identifications (and cross-racial eyewitness identifications)? It is a question that has led to contradictory conclusions across the country, and the latest court to address it was the United States District Court for the Middle District of Alabama in its recent opinion in United States v. Smith, 2009 WL 1444446 (M.D. Ala. 2009). 

Continue reading

June 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, June 8, 2009

Sitting On The Jury: New York Court Precludes Jury Impeachment Based Upon Defendant's Inaction During Trial

A lot of posts on this blog have dealt with Federal Rule of Evidence 606(b) and state counterparts and whether and when jurors may impeach their verdicts after they have been rendered. According to most courts, including New York state courts, jurors may impeach their verdicts if they were tainted by extraneous prejudicial information, such as news articles discussing evidence deemed inadmissible at a defendant's trial. But what happens if defense counsel is aware of such extraneous prejudicial information during trial but does not request a mistrial or a jury inquiry? The answer, at least according to the New York Supreme Court, Appellate Division, First Department, in its recent opinion in People v. Liggan, 2009 WL 1373775 N.Y.A.D. 1 Dept. 2009), is that the defendant is out of luck.

Continue reading

June 8, 2009 | Permalink | Comments (0) | TrackBack (0)