EvidenceProf Blog

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

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Saturday, August 1, 2009

Now (Un)Available: Court Of Appeals Of Ohio Finds Appellant Failed To Prove Declarant Unavailability In Bank Robbery Appeal

Like its federal counterpartOhio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true.

Like its federal counterpart, Ohio's Rule only applies if the declarant is "unavailable" at trial, with one ground for a court finding a declarant being unavailable being that the declarant "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." And, as the recent opinion of the Court of Appeals of Ohio in State v. Thornton, 2009 WL 2231791 (Ohio App. 12 Dist. 2009), makes clear, courts strictly construe this ground.

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

Friday, July 31, 2009

Mississippi Mud: Supreme Court Of Mississippi Opinion Reveals Anomalous Nature Of Its Marital Privilege

Mississippi Rule of Evidence 504(b) provides that

In any proceeding, civil or criminal, a person has a privilege to prevent that person’s spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse. 

There is no privilege under this rule in civil actions between the spouses or in a proceeding in which one spouse is charged with a crime against (1) the person of any minor child.

But what constitutes a crime against the person of any minor child? That was the question that the Supreme Court of Mississippi had to address in its recent opinion in Hood v. State, 2009 WL 2259937 (Miss. 2009).

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July 31, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 30, 2009

Efficiency Expert: Supreme Court Of Kansas Opinion Reveals Differences Between Kansas And Federal Rules Of Evidence On Expert Testimony

Federal Rule of Evidence 703 provides in relevant part 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.

As the recent opinion of the Supreme Court of Kansas in In re Colt, 2009 WL 1974517 (Kan. 2009), K.S.A. 60-456(b), is quite different from its federal counterpart, but in a way that was ultimately not relevant to the court's opinion.  

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July 30, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 29, 2009

Avoiding Confrontation: New Jersey Appellate Court Finds Admission Of Excited Utterance Did Not Violate Confrontation Clause

Like its federal counterpartNew Jersey Rule of Evidence 803(c)(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate.

It seems clear to me that the Superior Court of New Jersey, Appellate Division, in its recent opinion in State ex re. B.S., 2009 2140031 (N.J.Super.A.D. 2009), correctly found that the trial court properly admitted the victim's "excited utterance" under this rule. And it only seems somewhat less clear to me whether the appellate court made the right call in finding that this "excited utterance" was admissible notwithstanding the Confrontation Clause.

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

Tuesday, July 28, 2009

Money For Nothing: Court Of Appeals Of Texas Upholds Excited Utterance Ruling In Elder Theft Appeal

Like its federal counterpartTexas Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Usually, the startling event or condition triggering this "excited utterance" exception is something along the lines of a physical or verbal assault (event) or an illness or injury (condition); however, as the recent opinion of the Court of Appeals of Texas in Arriaga v. State, 2009 WL 2045220 (Tex.App.-San Antonio 2009), makes clear, the startling event can be something along the lines of somebody without authorization withdrawing money from your bank account.

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

Monday, July 27, 2009

Arizona v. Gant: A Windfall For The Government?

In Chimel v. California, 395 U.S. 752 (1969) the Supreme Court held that a search incident to a lawful home arrest may only include "the area 'within [an arrestee's] immediate control' - construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence." According to the Court, there were two justifications for allowing such searches: (1) "When an arrest is made, it is reasonable for the arresting officer to search the person arrested [and the area within his immediate control] in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape;" and (2) "it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person [or within his immediate control] in order to prevent its concealment or destruction." The Court, however, was quick to note that "[t]here is no comparable justification...for routinely searching any room other than that in which an arrest occurs - or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself."

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July 27, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 26, 2009

Garden State (Of Mind): Connecticut Federal Court Finds Psychotherapist-Patient Privilege Waived Even Under Narrow View Of Waiver

All federal courts and most states recognize some version of the psychotherapist-patient privilege, under which a patient has the privilege to refuse to disclose confidential communications made to a psychotherapist for the purpose of diagnosis or treatment. I have posted a couple of entries on this blog (here and here) about the two different interpretations of when a party waives the psychotherapist-patient privilege.

Under the "broad" view, "the mere allegation of emotional distress was viewed as sufficient to justify discovery into that party's psychological records to determine whether events other than the challenged conduct may have caused or exacerbated the party's distress."...

In contrast, under the "narrow" view, a plaintiff is not deemed to have waived the privilege by alleging only “garden variety” emotional distress....Courts using the narrow approach "must distinguish between garden variety claims and claims for more 'severe' emotional distress, such as those involving a diagnoses of a specific psychiatric disorder."..."Garden variety claims refer to claims for 'compensation for nothing more than the distress that any healthy, well-adjusted person would likely feel as a result of being so victimized.'"

In In re Sims, 534 F.3d 117, 132 (2nd Cir. 2008), the Second Circuit became one of the courts adopting some version of the "narrow view" of waiver. Even under that "narrow view," however, the United States District Court for the District of Connecticut still found that the plaintiff had waived the psychotherapist-patient privilege in its recent opinion in Jacobs v. Connecticut Community Technical Colleges, 2009 WL 2046016 (D.Conn. 2009). 

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July 26, 2009 | Permalink | Comments (0) | TrackBack (0)