EvidenceProf Blog

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

Saturday, August 29, 2009

Horton Hears A Hearsay: Appeals Court Of Massachusetts Makes Interesting Ruling Concerning Statements Against Interest

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for 

A statement which 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 believing it to be true.

Massachusetts does not have codified rules of evidence but it has recognized this statement against interest exception to the rule against hearsay in its case law. And, pursuant to the Supreme Court's opinion in Williamson v. United States, 512 U.S. 594 (1994), when a declarant makes a broadly self-inculpatory confession which also contains some self-exculpatory statements, courts will admit only the self-inculpatory statements and excise the self-exculpatory statements under the statement against interest exception. But what happens when a declarant makes a broadly self-exculpatory statement which also contains some self-inculpatory statements? That was the question addressed by the Appeals Court of Massachusetts in Commonwealth v. Dejarnette, 2009 WL 2595871 (Mass.App.Ct. 2009).

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

Friday, August 28, 2009

Privileged: Supreme Court Of Nevada Finds Judicial Proceeding Communication Privilege Applies To Nonlawyers

It is a “long-standing common law rule that communications [made] in the course of judicial proceedings [even if known to be false] are absolutely privileged." Does this privilege, however, extend to instances where a nonlawyer makes an allegedly defamatory communication in response to threatened litigation or during a judicial proceeding? In its recent opinion in Clark County School District v. Virtual Education Software, Inc., 2009 WL 2414820 (Nev. 2009), the Supreme Court of Nevada answered this question of first impression in the affirmative.

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

Thursday, August 27, 2009

Confronting Fear: Tenth Circuit Finds Excited Utterances Aren't Per Se Excluded From Scope Of Confrontation Clause

Federal 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. 

Meanwhile, the Confrontation Clause of the Sixth Amendment is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify regarding the hearsay at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. This begs the question of whether excited utterances under Rule 803(2) are per se excluded from the scope of the Confrontation Clause. In United States v. Pursley, 2009 WL 2568954 (10th Cir. 2009), the Tenth Circuit answered this question of first impression in the negative, contrary to the district court's conclusion.

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

Wednesday, August 26, 2009

What Not To Wear, Religious Edition, Take 2: Supreme Court Of Michigan Finalizes Attire Rule Of Evidence, With Lawsuit To Follow

Back in June, I posted an entry about the Supreme Court of Michigan's adoption of an amendment to Michigan Rule of Evidence 611 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.

As I noted at the time, the amendment was crafted after a judge dismissed a Muslim woman's case when she refused to comply with his order that she remove her niqab and was inconsitent with "a pretty consistent line of precedent in this country which had established that judges are not entitled to tell witnesses what not to wear when such an order implicates religious liberty."  Well, yesterday, the Supreme Court of Michigan issued the order impliementing this amendment, effective September 1st. And now, the woman, along with the Michigan chapter of the Council on American-Islamic Relations (CAIR), plans to sue the judge in federal court

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

Tuesday, August 25, 2009

S-U-C-C-E-S-S: Third Circuit Finds Settlement Offers Admissible As Evidence Of Degree Of Success Obtained For Fees And Costs Analysis

Federal Rule of Evidence 408 states

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

In Lohman v. Duryea Borough, 2009 WL 2183056 (3rd Cir. 2009), the Third Circuit resolved an issue of first impression under the Rule, the issue of "whether and to what extent the trial court may consider settlement negotiations when awarding fees."

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

Monday, August 24, 2009

The Lone Ranger And Tonto Fistfight In Heaven, Take 6: The Final Version Of My Amicus Brief For Benally

I have written five previous posts (here, here, here, here, and here) about the plight of Kerry Dean Benally, the Native American man who was convicted of assaulting a Bureau of Indian Affairs Officer with a deadly weapon and later learned that juror racial bias against Native Americans played a role during jury deliberations. In my last post on the subject, I noted that, as a result of my forthcoming article, Dismissed with Prejudice,  I was asked to write an amicus curiae brief in support of Benally's petition for writ of certiorari with the Supreme Court. That brief was submitted on Friday, and you can download a copy by clicking this link:

Download Amicus

I would like to thank all of the fine folks at Jenner & Block with whom I worked on preparing the brief, such as Marc GoldmanElaine GoldenbergCarrie Apfel, Sarah Maguire. I would also like to thank all of the Evidence professor who agreed to sign on to the brief.


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

Sunday, August 23, 2009

Noisy Withdrawal: Third Circuit Finds That Involuntarily Withdrawn Guilty Plea Is Not Covered By Rule 410

On Friday, I posted an entry about the Eighth Circuit enforcing a clause in a plea agreement against a criminal defendant despite the fact that no court would enforce a similar clause in a contract between parties in a civil case. In that entry, I argued that this decision was indefensible, especially in light of the fact that ambiguities in plea agreements are construed against the government. The recent opinion of the Third Circuit in United States v. Jenkins, 2009 WL2518529 (3rd Cir. 2009), is questionable on similar grounds.

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August 23, 2009 | Permalink | Comments (2) | TrackBack (0)