EvidenceProf Blog

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

Saturday, July 25, 2009

Sine Qua Nah: Court Of Appeals Of Minnesota Opinion Fleshes Out Specifics Of Rule 807

Like its federal counterpartMinnesota Rule of Evidence 807 provides in relevant part that

A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence.

In its 1985 opinion in State v. Ortlepp, 2009 WL 2015404 (Minn. 1985), the Supreme Court admitted a non-judicial prior consistent statement as substantive evidence based upon four factors:

(1) the witness was available for cross-examination regarding the statement, thereby assuaging any confrontation problems; (2) there was proof that the prior statement was made; (3) the statement was against the declarant's penal interest, a fact that increases its reliability; and (4) the statement was consistent with all the other evidence introduced.

Since, Ortlapp, Minnesota courts have referred to these as the Ortlepp factors, but are they the sine qua non of such a statement being admissible under Rule 807, or are there other factors that can lead to its admission?

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July 25, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, July 24, 2009

Not That I'm Biased: Court Of Appeals Of Minnesota Misapplies Rule 408 In Automobile Accident Appeal

Like its federal counterpartMinnesota Rule of Evidence 408 provides that:

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.  Evidence of conduct or statements made in compromise negotiations is likewise not admissible.  This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.  This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
So, clearly evidence of settlement negotiations can be admissible to prove bias, but when is such evidence probative on the issue of whether a witness is biased? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in Lallas v. Paquette, 2009 WL 2015821 (Minn.App. 2009), and I think that it answered the question incorrectly.

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July 24, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 23, 2009

Gone Fishin'?: Eastern District Of Pennsylvania Denies Evidentiary Hearing Into Juror Misconduct In State Senator's Case

Federal Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

What this means is that if a defendant has enough evidence that the jury's verdict was tainted by extraneous prejudicial information, the court should conduct an evidentiary hearing to determine the precise, nature, quality, and extent of the jury breach. In its recent opinion in United States v. Fumo, 2009 WL 1977715 (E.D. Pa. 2009), the United States District Court for the Eastern District of Pennsylvania did not award the defendant such a hearing, and I'm not sure that this was the correct decision.

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July 23, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 22, 2009

Human Behavior: Eighth Circuit Construes Expressions Of Desire As "Sexual Behavior" For Rape Shield Purposes

Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

But what exactly constitutes sexual behavior? Well, as the recent opinion of the Eighth Circuit in United States v. Papakee, 2009 2066797 (8th Cir. 2009), makes clear, courts have construed this phrase, and thus Federal Rule of Evidence 412(a)'s proscription, broadly.

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July 22, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 21, 2009

Confession(s) To Make: Florida Court Orders Separate Trials Of Former Football Players Based Upon Bruton Issues

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. This so-called "Bruton doctrine" explains why former high school football players in Bradenton, Florida were informed on Friday that they will have separate murder trials

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July 21, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, July 20, 2009

No Collateral: Tenth Circuit Finds Extrinsic Evidence Of Child Abuse Was Properly Admitted In International Parental Kidnapping Appeal

Federal Rule of Evidence 608(b) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The reason this Rule precludes the use of extrinsic evidence is that the (un)truthfulness of a witness is collateral to the substantive issues at trial. What this means, as is made clear by the Tenth Circuit's recent opinion in United States v. Rizvanovic, 2009 WL 2105231 (10th Cir. 2009), is that when extrinsic evidence of specific instances of conduct is relevant not only to a witness' (un)trustworthiness but also relevant to the substantive issues at trial, Rule 608(b)'s proscription does not apply.

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

Sunday, July 19, 2009

Rape Shield Redux: Eighth Circuit Holds That District Court Properly Excluded "Other Source" Evidence In Rape Shield Appeal

Federal Rule of Evidence 412(a), the Rape Shield Rule, indicates that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

Federal Rule of Evidence 412(b)(1)(A), however, indicates that

(1) In a criminal case, the following evidence is admissible, if otherwise admissible under these rules:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

As this latter Rule makes clear, such evidence of other sexual behavior is not automatically admissible; instead, it must be "otherwise admissible under the rules of evidence. This qualifying language was the problem for tha appellant in United States v. Seed, 2009 WL 2045690 (8th Cir. 2009).

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