EvidenceProf Blog

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

Saturday, September 19, 2009

I Need A Remedy: SDNY Finds That Change In Employment Practice Constitutes Subsequent Remedial Measure

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Usually, this rule applies when an instrumentality causes an injury and the defendant subsequently makes the instrumentality safer. For instance, if a patron falls on the front steps at a restaurant, evidence that the restaurant subsequent changed the lighting or added a handrail to the steps would be inadmissible under the rule. And if a child chokes on a toy, evidence that the manufacturer subsequently made the toy bigger would be inadmissible under the rule. As the recent opinion of the United States District Court for the Southern District of New York in Hamilton v. City of New York, 2009 WL 2973007 (S.D.N.Y. 2009), makes clear, however, the rule also applies to changes to allegedly discriminatory hiring practices.

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

Friday, September 18, 2009

Lie To Me: Colorado Supreme Court Denies Cert in Rule 703/Polygraph Case

Recently, in People ex rel. M.M., Jr. v. M.M., 2009 WL 2917036 (Colo. 2009), the Colrado Supreme Court denied a petition for writ of certiorari from People ex rel. M.M., Jr., 2009 WL 1012910(Colo.App. 2009), but a dissenting justice would have granted cert on, inter alia, the following issue:

Whether the court of appeals incorrectly applied Colorado Rule of Evidence 703 in holding that expert testimony about opinions based in part upon the results of polygraph examinations should not be admitted.

This seemed interestingto me, so I went back to the opinion of the Colorado Court of Appeals, Division III, and I'm think that I disagree with the Court of Appeals' reasoning.

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

Thursday, September 17, 2009

Finding Consistency: Arizona Case Provides Good Example Of Prior Consistent Statement Rule

Like its federal counterpartArizona Rule of Evidence 801(d)(1)(B) indicates 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.

And the recent opinion of the Arizona Court of Appeals, Division 2 in State v. Georgatos, 2009 WL 2883059 (Ariz.App. Div. 2 2009), provides a good example of when the rule applies.

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

Wednesday, September 16, 2009

My New Essay: Crossing Over: Why Attorneys (And Judges) Should Not Be Able To Cross-Examine Witnesses Regarding Their Immigration Statuses For Impeachment Purposes

Last December, I posted an entry about the Eighth Circuit finding that a district judge did not commit plain error by extensively interrogating defense witnesses about their immigrations statuses. In January, I followed up on that post with an entry about the United States District Court for the Southern District of New York similarly finding that a civil plaintiff could be cross-examined regarding his immigration status. At the time, I noted that I thought that the judges had reached the wrong conclusions. I decided to follow up that posts with an essay, which became Crossing Over: Why Attorneys (and Judges) Should Not Be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. The final version of the essay will be published in the Northwestern University Law Review Colloquy in November, and you can download my initial draft now on SSRNHere is the abstract for the essay:

In two recent opinions, courts authorized the impeachment of witnesses through cross-examination regarding their immigration statuses. They allowed such impeachment pursuant to Federal Rule of Evidence 608(b), which only permits specific act impeachment if based upon acts that are directly probative of (un)truthfulness. This essay argues that immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule.

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his alleged commission of some crime, such as fraudulently obtaining documentation, and not simply based upon his immigration status, that witness should be able to invoke his Fifth Amendment privilege against self-incrimination.  


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

Tuesday, September 15, 2009

Rape Shield Redux: Supreme Court Of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn't

Unlike its federal counterpartNRS 50.090 -- Nevada's rape shield law -- only applies in criminal cases. Does that mean, however, that judges in civil cases are precluded from precluding discovery regarding a civil plaintiff's sexual history? According to the recent opinion of the Supreme Court of Nevada in Sonia F. v. Eighth Judicial Dist. Court, 2009 WL 2900770 (Nev. 2009), the answer is "no."

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

Monday, September 14, 2009

Requiem For Residuum: Court Of Appeals Of Utah Finds Ruling Against Nurse Didn't Violate Residuum Rule

It is well established that rules of evidence do not apply at administrative proceedings. That is not to say, however, that such rules are irrelevant at such proceedings. For instance, hearsay is admissible at administrative proceedings, but under the residuum rule, factual findings at such a hearing cannot be exclusively based on inadmissible hearsay, as was made clear by the recent opinion of the Court of Appeals of Utah in Benitez v. Department of Health, Div. of Health Care Financing, 2009 WL 2902518 (Utah.App. 2009).

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September 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Welcome To The Blogosphere, (Relaunched) Civil Procedure & Federal Courts Blog

Last Wednesday marked the relaunch of the renamed Civil Procedure & Federal Courts Blog. The blog, which used to be run by W. Jeremy Counseller and Rory Ryan of Baylor, is now being run by

-Robin Effron (Event Jurisdiction and Protective Coordination: Lessons from the September 11th LitigationDisaster-Specific Mechanisms for Consolidation) of Brooklyn;

-Cynthia L. Fountaine (Have License, Will Travel:  An Analysis of the New ABA Multijurisdictional Practice Rules, 81 WASHINGTON UNIVERSITY LAW QUARTERLY 737 (2003), Article III and the Adequate and Independent State Grounds Doctrine, 48 AMERICAN UNIVERSITY LAW REVIEW 1053 (1999)) of Texas Wesleyan; and

-Adam Steinman (The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years after the Trilogy, What is the Erie Doctrine? (And What Does it Mean for the Contemporary Politics of Judicial Federalism?)) of Cincinnati.

In the first post on the relaunched blog, the authors state:

Hello, and welcome to the renovated Civil Procedure & Federal Courts Blog on the Law Professor Blogs Network. There have been a number of changes recently, the most large-fonted of which is the addition of "& Federal Courts" to our name. This expansion recognizes the often blurry line between civil procedure issues and federal courts/federal jurisdiction issues, for both academics and practitioners. But the new name does not mean we'll be covering only federal civil procedure. We're interested in civil procedure in all its forms--state, federal, foreign, transnational.

We hope you find the Civil Procedure & Federal Courts Blog to be a valuable resource. And if readers come across bloggable developments that we've missed, please feel free to let any (or all) of us know; our contact info appears at the left. Folks who are interested in guest blogging are also encouraged to contact us.


I'm sure that we can expect a number of terrifics posts from these knowledgeable folks that will be helpful to litigants, judges, students, and professors like me who teach civil procedure. Indeed, there are already interesting posts on the blog concerning recent Ninth Circuit preemption opinions, Iqbal, and military commission trials.


September 14, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 13, 2009

The Sleeping Juror: Eastern District Of California Denies Habeas Relief To Petitioner Despite Non-Juror Evidence Of Sleeping Juror

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part 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.

According to the Court, this was the case because none of the alleged juror misconduct constituted extraneous prejudicial information or an improper outside influence. The court did note, however, that the Rule only precluded post-trial impeachment of verdict by jurors, not post-trial impeachment of verdicts by non-jurors. And in the recent opinion of the United States District Court for the Eastern District of California in Anderson v. Terhune, 2009 WL 2462398 (E.D. Cal. 2009), the petitioner had non-juror evidence that a juror fell asleep during portions of his trial. And yet, the court somehow found that this evidence was insufficient to award the petitioner relief.

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