EvidenceProf Blog

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

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Saturday, June 20, 2009

Ordeal By Innocence, The Aftermath: Alaska Adopts Wrongful Incarceration/Execution Exception To Attorney-Client Confidentiality

Last summer, the Northwestern University Law Review Colloquy published my essay, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. I wrote the essay largely in response to the Alton Logan story. As I noted in the essay,

In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's.  What the jury that convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed.  The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession.  Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan dwere given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit: being locked up—Logan in a prison cell; the affidavit in a lock box.  Pained by guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

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June 20, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, June 19, 2009

Protecting Against The Google Mistrial: Supreme Court Of Michigan Revises Court Rule To Address Technologically Enhanced Jury Misconduct

Yesterday, I posted an entry about the Supreme Court of Michigan's adoption of a new rule of evidence providing that judges "shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons." Well, the Michigan Supremes also revised Michigan Court Rule 2.516, and the revision addresses an issue that I have given much attention on the blog: How do we deal with the increasing problem of jurors using cell phones, computers, and other devices to discuss and discover information relating to the case that they are hearing. But it didn't go all the way.

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June 19, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 18, 2009

What Not To Wear, Religious Edition: Supreme Court of Michigan Adopts Rule Allowing Judges to Exercise "Reasonable Control Over the Appearance of Parties and Witnesses" Based Upon Niqab Case

Yesterday, by a 5-2 vote, the Supreme Court of Michigan adopted an amendment to Michigan Rule of Evidence 611. This amendment created Michigan Rule of Evidence 611(b), which provides as follows:

(b) Appearance of Parties and Witnesses. The court shall exercise reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons. 

The amendment was crafted in response to a lawsuit brought by Muslim woman Ginnah Muhammad. Muhammad had gone to court to contest a $3,000 charge from a rental company to repair a vehicle that she said thieves had broken into. When Muhammad appeared in court, District Judge Paul Paruk ordered her to remove her niqab, or face covering, but she refused, ostensibly because "[s]ome Muslim leaders interpret the Quran to require that women wear a headscarf, veil or burqa in the presence of a man who is not their husband or close relative." 

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June 18, 2009 | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 17, 2009

Prior Authorization: Eleventh Circuit Finds Threat Conveyed To Witness' Girlfriend Didn't Constitute An Authorized Admission

Federal Rule of Evidence 801(d)(2)(C) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a person authorized by the party to make a statement concerning the subject.

But what must a party seeking to admit such a statement present to establish such authorization? Must there be explicit words of authorization or can authorization be implied by the statement itself? Both Federal Rule of Evidence 801 and the Eleventh Circuit's recent opinion in United States v. Docampo, 2009 WL 1652910 (11th Cir. 2009), tell us that authorization cannot be implied (solely) by the statement itself, but I am not sure that I agree.  

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

Tuesday, June 16, 2009

What Are Your Intentions?: Sixth Circuit Finds No Plain Error In DEA Agents Drug Quantity Testimony

Federal Rule of Evidence 704(b) provides that

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.

Does this rule prevent DEA agents from testifying that the quantities of drugs recovered from a defendant are consistent with intent to distribute? The answer is "no" according to the Sixth Circuit in its recent opinion in United States v. Alford, 2009 WL 1587267 (6th Cir. 2009), at least if the defendant does not object to such testimony.

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

Monday, June 15, 2009

(In)Competently Put?: Court Of Appeals Of Mississippi Rejects Competency Challenge To Excited Utterance

It is well established in the American court system that only competent witnesses may testify in open court, If an individual cannot understand the difference between right and wrong, respond intelligibly to cross-examination, etc., he cannot render testimony before a jury. And, understandably, the same generally applies to hearsay declarants. If a witness cannot take the stand because he is incompetent, surely his out-of-court-statements cannot be introduced through the testimony of another witness. But, while this is the general rule, many courts, such as the Court of Appeals of Mississippi in its recent opinion in Eubanks v. State, 2009 WL 1520108 (Miss.App. 2008), find that there is an exception for excited utterances.

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

Sunday, June 14, 2009

The Best Of Everything: Fourth Circuit Erroneously Finds That Best Evidence Rule Doesn't Apply In Firearms Appeal

Federal Rule of Evidence 1002, the Best Evidence or Original Document Rule, indicates that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress. 

As I tell my Evidence students, this Rule is oft misunderstood, not only by law students, but also by lawyers and even judges. The recent opinion of the Fourth Circuit in United States v. Smith, 2009 WL 1452045 (4th Cir. 2009), is a good example of judges completely misunderstanding the Best Evidence Rule.

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