Saturday, October 3, 2009
Suppression Vs. Exclusion: Missouri Court Of Appeals Denies Interlocutory Appeal By Reading Motion To Suppress As Motion To Exclude
Suppression of evidence is not the same thing as exclusion of evidence on the basis of some rule of evidence. Suppression is a term used for evidence that is not objectionable as violating any rule of evidence, but that has been illegally obtained. The recent opinion of the Missouri Court of Appeals, Western District, in State v. Moad, 2009 WL 3075576 (Mo.App. W.D. 2009), explains why this distinction matters.
Friday, October 2, 2009
I'm Going To Admit It: Puerto Rico Case Reveals Circuit Split Over Application Of Admissions Rule To Governmental Agents In Criminal Cases
Federal Rule of Evidence 801(d)(2)(A) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...the party's own statement, in either an individual or a representative capacity.
Under this Rule, three things are clear. Statements by a civil plaintiff are admissible against him, statements by a civil plaintiff are admissible against him, and statements by a criminal defendant are admissible against him. But are statements of governmental agents admissible against the prosecution in a criminal cases? As the recent opinion of the United States District Court for the District of Puerto Rico in United States v. Lopez-Ortiz, 2009 WL 2709369 (D. Puerto Rico 2009), makes clear, there is a split among courts, with the First Circuit finding that such statements can be admissible as admissions of party-opponents.
Thursday, October 1, 2009
Avoiding The Google Mistrial: Story Reveals Measures Oklahoma Judge Has Taken In Light Of New Technologies
For years, judges instructed jurors not to discuss cases with non-jurors and to avoid any news coverage. Now, with the advant of new technologies and the so-called Google mistrial, some judges are supplementing those instructions.
Wednesday, September 30, 2009
Analog Rules In A Digital Age: Nigeria Seeks To Amend Its Evidence Act To Allow Admissibility Of Electronic Evidence
Here in the United States, there have been several major amendments to the Federal Rules of Evidence since they were became effective in 1975. Conversely, since its enactment 64 years ago, Nigeria's Evidence Act has only been subject to three minor amendments. The Nigerian government recently realized that, without more significant amendments, some of its evidentiary rules have become analog rules in a digital age. That might be about to change.
Back in May, I posted my initial Submission Guide for Online Law Review Supplements. At the time, I promised to update the guide annually and as law reviews create new online supplements. Since then, I have learned of two other supplements: Maryland Law Review Endnotes and Texas Tech Law Review Addendum. Also, a few online supplements have changed their sites and/or the types of pieces they accept. The former Yale Law Journal Pocket Part is now Yale Law Journal Online, and it has expanded the list of submissions its accepts. Michigan's First Impressions has changed its website and now accepts original essays in addition to symposium pieces. Finally, Connecticut's CONNtemplations has changed its website.
All of these additions and changes are recorded in Submission Guide for Online Law Review Supplements, version 2.0 (9/30/2009), which you can download for free from SSRN. Finally, I wanted to alert readers that the Denver University Law Review just launched an online supplement, DU Process, but it is still in the trial phase, with details to be sorted out. When they are, I will add that information to the guide.
Tuesday, September 29, 2009
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
Meanwhile, Section Section 1912(f) of the Indian Child Welfare Act provides that
No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.
The Supreme Court of Alaska recently found that "ICWA § 1912(f) heightens the requirements for an expert's qualifications beyond those normally required to qualify an expert." You wouldn't know it, however, based upon that court's recent opinion in Sandy B. v. State, Dept. of Health & Social Services, Office of Children's Services, 2009 WL 3049721 (Alaska 2009).
Monday, September 28, 2009
I Need A Remedy: Court Of Appeals Of Wisconsin Finds Subsequent Remedial Measure Rule Inapplicable In Criminal Cases
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section 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....
In its recent opinion in State v. Conley, 2009 WL 3018121 (Wis.App. 2009), the Court of Appeals of Wisconsin had to answer the following question: Does this rule apply in criminal cases? It answered the question in the negative. I disagree.
Sunday, September 27, 2009
Still Haven't Found What I'm Looking For: Court Of Appeals Of Texas Finds Prosecution Made Reasonable Attempt To Locate Witness In Murder Retrial For Former Testimony Purposes
testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
And, like its federal counterpart, Texas Rule of Evidence 804(b)(1) only applies when the proponent can prove declarant unavailability under Rule 804(a), which includes situations in which the declarant
is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance or testimony by process or other reasonable means.
But what constitutes reasonable means? That was the question presented to the Court of Appeals of Texas, Houston, in Reed v. State, 2009 WL 3050825 (Tex.App.-Houston [1 Dist.] 2009).