EvidenceProf Blog

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

Saturday, July 4, 2009

Questioning The Jury: Tennessee Court Finds Trial Court Applied Proper Jury Questioning Procedure In 4th Of July Case

I have written a few posts on this blog (hereherehere, and here) about the propriety of allowing jurors to ask questions during trial. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. James, 2009 WL 1579236 (Tenn.Crim.App. 2009), makes clear that Tennessee allows juror questioning in criminal cases and also clarifies a key detail about how that questioning works.

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July 4, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, July 3, 2009

Summary Judgment: Seventh Circuit FInds Audit Report Admissible Under Rule 1006

Federal Rule of Evidence 803(6) provides an 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.

But what happens when a party seeks to introduce a report that was not made in the course of regularly conducted business activity, but that report was made from documents that themselves qualify as business records under Federal Rule of Evidence 803(6)? The answer, as the Seventh CIrcuit found in its recent opinion in Trustees of the Chicago Plastering Institute Pension Trust v. Cork Plastering Company, 2009 WL 1873516 (7th Cir. 2009), is that the report is admissible under Federal Rule of Evidence 1006.

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July 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 2, 2009

Something Special In The Verdict: Rule 606(b) Precludes Jury Impeachment On Workers' Compensation Issue In Case Against American Airlines

Judges often make rulings excluding evidence to avoid confusing the jury. Indeed, Federal Rule of Evidence 403 explicitly provides that judges may exclude even relevant evidence if its probative value is substantially outweighed by the danger of confusion of the issues. Sometimes, however, in an attempt to prevent juror confusion, the judge ends up causing that very confusion. But even when a party can prove that this confusion caused a misguided verdict, Federal Rule of Evidence 606(b) will preclude the verdict from being disturbed, as was the case with the recent opinion of the United States District Court for the Southern District of New York in Severino v. American Airlines, 2009 WL 1810014 (S.D.N.Y. 2009).

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July 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 1, 2009

Chicken Little Or Canary In The Coal Mine?, Take 3: Could Briscoe v. Virginia Lead To An Immediate Overturning Of Melendez-Diaz?

Last week, I wrote a post about the Supreme Court's new opinion in Melendez-Diaz v.Massachusetts, in which it found in a 5-4 vote that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. One of the five Justices in the majority was Justice Souter, who, of course, will soon be gone from the Court, likely to be replaced by Sonia Sotomayor. What this means is that the Melendez-Diaz opinion could soon be invalidated if the Court hears a case that leads it to reassess Melendez-Diaz, and the new Justice agrees with the four dissenting Justices in Melendez-Diaz. And, as SCOTUS Blog, recently noted, the Court has just granted cert in just such a case. 

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July 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 30, 2009

Ex Post Handcuffs, Take 2: Sixth Circuit Opinion Also Shows Immediate Impact Of Arizona v. Gant

Yesterday, I did a post about the immediate impact of the United States Supreme Court's recent opinion in Arizona v. Gant, 129 S.Ct. 1710 (2009), and its holding that officers cannot search the passenger compartment of an arrestee's vehicle incident to the arrest "after the arrestee has been secured and cannot access the interior of the vehicle." In that post, I cited the Eighth Circuit's opinion in United States v. Hraskey, 2009 WL 1606642 (8th Cir. 2009), as "[t]he first o[pinion] that I have seen at the federal appellate level" striking down such a search in the wake of Arizona v. Gant. Well, after a little more searching, I actually came across the Sixth Circuit's opinion in United States v. Lopez, 2009 WL 1507294 (6th Cir. 2009), which did the same about a week earlier.

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June 30, 2009 | Permalink | Comments (5) | TrackBack (0)

Monday, June 29, 2009

Ex Post Handcuffs: Eighth Circuit Opinion Shows Immediate Impact Of Arizona v. Gant

In 1969, the Supreme Court established the boundaries of proper search incident to a lawful arrest in California v. Chimel, 395 U.S. 752 (1969). According to the Court,

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape....And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. 

Okay, so according to Chimel as part of a search incident to a lawful arrest, an officer can search the suspect and the area into which he might reach. But then came the Court's 1981 opinion in New York v. Belton, 453 U.S. 454 (1981).

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June 29, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 28, 2009

Expert Commitment: New Jersey Appellate Court Affirms Civil Commitment Based Upon Reasonable Expert Reliance

New Jersey Rule of Evidence 703 indicates that

[t]he 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.

And because the experts in In re Civil Commitment of W.X.C., 2009 WL 17505433 (N.J.Super.A.D. 2009), relied upon inadmissible evidence that is nonetheless reasonably relied upon by experts in their field in forming opinions, the Superior Court of New Jersey, Appellate Division affirmed W.T.C.'s commitment to the Adult Diagnostic and Treatment Center for sex offender treatment.

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June 28, 2009 | Permalink | Comments (0) | TrackBack (0)