EvidenceProf Blog

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

Saturday, October 17, 2009

In Good Hands?: Court Of Appeals Of Kentucky Opinion Reveals Danger Of Using Privileged Documents To Refresh Recollection

Like its federal counterpartKentucky Rule of Evidence 612 indicates that

Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

In other words, as the recent opinion of the Court of Appeals of Kentucky in Hager v. Allstate Insurance Company, 2009 WL 3320938 (Ky.App. 2009), makes clear, if you have a document that you want to keep privileged, don't use it to refresh the recollection of a witness.

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

Friday, October 16, 2009

Chicken Little Or Canary In The Coal Mine, Take 4: Article Speculates That Melendez-Diaz Could Have Substantial Negative Impact In Military Justice System

I have written three previous posts (herehere, and here) on this blog about the Supreme Court's recent opinion in Melendez-Diaz v. Massachusetts. Basically, this opinion held that certificates of state laboratory analysts were "testimonial" and thus covered by the Sixth Amendment. I titled each of these posts, "Chicken Little or Canay in the Coal Mine" because of the differing views of the impact of the opinion offered by Justices Scalia and Kennedy in their majority and dissenting opinions, respectively. According to Scalia, the opinion will not have a substantial negative impact on criminal prosecutions, but Kennedy disagreed. According to a new article by Patrick McClain, one place where the opinion might have a substantial negative impact is in the military justice system.

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October 16, 2009 | Permalink | Comments (2) | TrackBack (0)

Thursday, October 15, 2009

It's My Space. That's Why They Call It MySpace, Take 4: Supreme Court of Indiana Seemingly Errs in Deeming MySpace Evidence Admissible In Murder Appeal

I have written three previous posts on this blog (here, here, and here) about court rulings addressing the admissibility of evidence on parties' MySpace pages. The latest court to weigh in on the issue was the Supreme Court of Indiana in its opinion in Clark v. State. In my opinion, the Indiana Supremes, got it wrong.

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October 15, 2009 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 14, 2009

Picture (Im)Perfect?: Second Circuit Finds Wearing Of T-Shirts With Victim's Photograph Not Inherently Prejudicial In Murder Appeal

A defendant is on trial for murdering a victim. During trial, the victim's relatives wear t-shirts displaying the victim's photograph. If the defendant is convicted of murder, should he be awarded a new trial based upon the t-shirts being inherently prejudicial? According to the Second Circuit in its recent opinion in United States v. Farmer, 2009 WL 3200690 (2nd Cir. 2009), the answer is "no," at least based upon the particular factual context with which it was presented.

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October 14, 2009 | Permalink | Comments (2) | TrackBack (0)

Tuesday, October 13, 2009

Lacking Consistency: Court Of Appeals Of Texas Seemingly Errs In Deeming Prior Consistent Statements Admissible In Sexual Assault Appeal

Like Federal Rule of Evidence 801(d)(1)(B)Texas Rule of Evidence 801(e)(1)(B) provides 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.

In other words, if a witness says something at trial and opposing counsel presents evidence that the witness' testimony is the product of some recent event giving the witness an improper motive to lie, the party calling the witness can thereafter present a consistent statement preceding the event to challenge this "product" argument. In its recent opinion in Hutson v. State, 2009 WL 3210704 (Tex.App.-Dallas 2009), the Court of Appeals of Texas, Dallas, found that Texas Rule of Evidence 801(e)(1)(B) was applicable in a sexual assault trial. I disagree.

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

Monday, October 12, 2009

Judge As Super Witness?: Supreme Court Of Tennesse Grapples With Whether And When Judges Should Be Able To Testify

Like its federal counterpart, Tennessee Rule of Evidence 605 provides that "[t]he judge or chancellor presiding at the trial may not testify in that trial. No objection need be made in order to preserve the point." But what happens when the prosecution wants to have the judicial commissioner who made the initial determination of probable cause testify at a defendant's trial? That was the problem recently addressed by the Supreme Court of Tennessee in State v. Nash, 2009 WL 3191550 (Tenn. 2009).

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October 12, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 11, 2009

Wii Fit?: District Of Colorado Decides To Apply Colorado Privilege Law In Class Action Suit Against Nintendo For Defective Wiimote Wrist Straps

This summer, my wife and I purchased the Nintendo Wii, and we love it. My current favorite game is table tennis on Wii Sports Resort because, with the new Wii Motion Plus, I can put as much topsin on my forehand as Rafeal Nadal and as much slice on my backhand as Steffi Graf. After numerous attempts, I finally beat my nemesis, Lucia, and I am on my my way to breaking 2,000 points with my Mii. That said, before playing, I always make sure that the wrist strap on my Wiimote is tight because I have heard stories of Wiimotes slipping out of peoples' hands and destroying TVs. According to the plaintiffs in a class action suit against Nintendo, even this precaution is insufficient because the straps on Wiimotes are defective. At this point in the action, in Elvig v. Nintendo of America, Inc., 2009 WL 3048445 (D. Colo. 2009), however, the United States District Court for the District of Colorado merely had to determine which state's privilege law to apply.

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October 11, 2009 | Permalink | Comments (2) | TrackBack (0)