EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, July 18, 2009

Plea Agreement As Improper Influence: New Jersey Appellate Court Finds Prior Consistent Statement Were Properly Admitted In Drug Appeal

New Jersey Rule of Evidence 607 indicates that

Except as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility, except that the party calling a witness may not neutralize the witness' testimony by a prior contradictory statement unless the statement is in a form admissible under Rule 803(a)(1) or the judge finds that the party calling the witness was surprised. A prior consistent statement shall not be admitted to support the credibility of a witness except to rebut an express or implied charge against the witness of recent fabrication or of improper influence or motive and except as otherwise provided by the law of evidence.

As the recent opinion of the New Jersey Superior Court, Appellate Division in State v. Davis, 2009 WL 1974509 (N.J.Super.A.D. 2009), makes clear, however, the "improper influence" need not be improper in the sense that we usually think of the word but can include events such as a witness' entry into a plea agreement.

Continue reading

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

Friday, July 17, 2009

Fresh Enough: Western District Of Wisconsin Finds Statement Created Months After Harassment Qualifies As Recorded Recollection

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

My post yesterday addressed two important aspects of this "recorded recollection" exception to the rule against hearsay: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? My post today, and the recent opinion of the United States District Court for the Western District of Wisconsin in Vorwald v. 3M Co., 2009 1970694 (W.D. Wis. 2009), both address a third aspect: When is a matter fresh in a witness' memory?

Continue reading

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

Thursday, July 16, 2009

Record(ing) Recollection: Minnesota Case Reveals Two Important Aspects Of Recorded Recollection Exception To Rule Against Hearsay

Like its federal counterpartMinnesota Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.

The recent opinion of the Court of Appeals of Minnesota in State v. Stone, 2009 WL 1919005 (Minn.App. 2009), addressing two important aspects of this "recorded recollection" exception: (1) When does a witness have insufficient recollection, and (2) When does a witness need to adopt a memorandum/record? 

Continue reading

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

Wednesday, July 15, 2009

In The Maine: District Of Maine Refuses To Apply Maine's Peer Review Privilege In Disparate Treatment Case

Federal Rule of Evidence 501 provides that

Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law.

What this means, as is made clear by the recent opinion of the United States District Court for the District of Maine in Thayer v. Eastern Maine Medical Center, 2009 WL 1686673 (D.Me. 2009), is that when a plaintiff brings federal claims against a defendant in a federal court located in a particular state, the court is not bound by the state's rules of privilege.

Continue reading

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

Tuesday, July 14, 2009

A Foolish Consistency: Supreme Court Of New Hampshire Opinion Misapplies Prior Consistent Statement Rule

Like its federal counterpartNew Hampshire Rule of Evidence 801(d)(1)(B) provides that:

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

As the recent opinion of the Supreme Court of New Hampshire in State v. White, 2009 WL 1955235 (N.H. 2009), makes clear, however, this rule does not provide the sole method for admitting prior consistent statements into evidence. But it seems to me that the method that the court applied was not, in fact, applicable.

Continue reading

July 14, 2009 | Permalink | Comments (2) | TrackBack (0)

Monday, July 13, 2009

Leave The Falling To Us: Seventh Circuit Affirms Exclusion Of Employee Report In Case Against Metra

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

[a] statement is not hearsay if...The statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

Like all admissions, employee admissions are generally admissible under Rule 801(d)(2)(D) notwithstanding the personal knowledge requirement of Federal Rule of Evidence 602. But, as the recent opinion of the Seventh Circuit in Mister v. Northeast Illinois Commuter R.R. Corp., 2009 WL 1956333 (7th Cir. 2009), makes clear, courts can still find employee admissions made without personal knowledge inadmissible pursuant to Federal Rule of Evidence 403.

Continue reading

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

Sunday, July 12, 2009

A Matter Of Credibility?: New Hampshire Case Involves Important Impeachment, Rape Shield Issues

An upcoming sexual assault trial provides a good illustration of the rape shield rule and a couple of rules of evidence dealing with the impeachment of witnesses. 

Continue reading

July 12, 2009 | Permalink | Comments (0) | TrackBack (0)