EvidenceProf Blog

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

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Saturday, September 26, 2009

The Devil Is In The Dictum: Second Circuit Makes Troubling Statements In Dictum In Rape Shield Ruling

A female employee allegedly flashes her breasts to co-workers at the workplace. That female employee later brings a sexual harassment action against her superior, claiming that he touched her thighs and breasts, offered her job security in return for sex, and showed up uninvited at her residence. The superior, who was not present during the alleged breast flashing, seeks to present evidence of this flashing in his defense. How should the court rule? Clearly, the answer should be to deem the evidence inadmissible. And indeed, that is what the United States District Court for the Southern District of New York held in hearing a case with these facts: Basile v. Spagnola. Moreover, the Second Circuit recently affirmed that decision in its recent opinion in Basile v. Spagnola, 2009 WL3015489 (2nd Cir. 2009). So, what's the problem? Well, in this case, the devil is in the dictum.

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September 26, 2009 | Permalink | Comments (4) | TrackBack (0)

Friday, September 25, 2009

Like A Good Witness: Supreme Court Of South Carolina Applies "Substantial Connection" Test To Evidence Of Insurance Offered To Prove Bias

Like its federal counterpartSouth Carolina Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

That's not to say, though, that evidence of liability insurance is automatically admissible to prove bias as it must still pass the Rule 403 balancing test. And the recent opinion of the Supreme Court of South Carolina in Todd v. Joyner, 2009 WL 2988904 (S.C. 2009), reveals the test that South Carolina courts use to make that determination.

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

Thursday, September 24, 2009

Better Evidence Or Best Evidence?: Second Circuit Affirms Bank Fraud Convictions Despite Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, states that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

And it was the "except as otherwise" portion of the rule that got the appellant in United States v. Whittingham, 2009 WL 3004345 (2nd Cir. 2009). 

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

Wednesday, September 23, 2009

The Case-In-Chief Waiver: Fifth Circuit Becomes Third Federal Appellate Court To Read Mezzanatto In Broadest Sense

In relevant part, Federal Rule of Evidence 410 provides that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:....

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a criminal defendant can waive Rule 410 protection and make his otherwise excludable plea statements admissible to impeach him should he make contradictory statements at trial. The Court left open the question of whether a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence. Thereafter, a handful of federal appellate courts found that a defendant could make such a waiver by presenting evidence at trial contradicting his otherwise excludable plea statements, which would allow the prosecution to use his statements substantively to rebut the evidence elicited, i.e., the "rebuttal waiver."

Until a few days ago, however, only two federal appelate courts had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence  even when he did not present evidence at trial contradicting his otherwise excludable plea statements. But after the opinion of the Fifth Circuit in United States v. Sylvester, that number has risen to three.

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

Tuesday, September 22, 2009

If You Catch My Drift: Innocence Project Of Texas Publishes: Dog Scent Lineups A Junk Science Injustice

I have written a couple of previous posts (here and here) about the tests that courts have used to determine whether evidence of tracking by a dog is admissible. Now, The Innocence Project of Texas has weighed in on a somewhat related issue by publishing a special report, Dog Scent Lineups A Junk Science Injustice.

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

Monday, September 21, 2009

The Guy Is So Dangerous: Supreme Court Of Virginia Finds Virginia Courts Did Not Err In Future Dangerousness Rulings In Death Penalty Appeal

A man is convicted of murder. During the capital sentencing hearing, the prosecution presents evidence regarding the man's future dangerousness, i.e., evidence that the man would present a future danger if not given the death penalty. This danger, however, would be limited to the danger presented to prison guards and other inmates because the jury's only sentencing options are the death penalty and life imprisonment without the possibility of parole. The man wants to drive this point home to the jury by having the court appoint him an expert to, inter alia, testify that his opportunities for serious violence toward others would be greatly reduced based upon the conditions of his confinement. The court denies his motion. Has the court acted properly?

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

Sunday, September 20, 2009

The Unspecified Prior Conviction: Court Of Appeals Of Minnesota Precludes Sanitized Impeachment In Order Of Protection Violation Appeal

Like its federal counterpartMinnesota Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect.

When the prosecution seeks to impeach a criminal defendant through a prior conviction, the court considers five factors, such as how much bearing the crime leading to the prior conviction has on the defendant's honesty and the similarity between the crime leading to the prior conviction and the crime charged. Previously, when courts used to find that a specific conviction would not be admissible to impeach a defendant because its admission would be too prejudicial, they usually still allowed for the defendant (or another witness) to be impeached through evidence that he had some unspecified prior conviction. As the recent opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009), makes clear, however, the modern trend is away from this practice.

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