EvidenceProf Blog

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

Saturday, October 24, 2009

As I Lay Dying: Court Of Criminal Appeals Of Texas Artfully Explains Dying Declaration Exception

Like its federal counterpartTexas Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay for 

A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. 

(An important distinction between the two rules is that the federal rule only applies in civil cases and criminal homicide cases, whereas it appears that the Texas rule applies in any case). In describing this rule to students, I always say that courts admit these statements under the theory that a person doesn't want to die with a lie on his lips, supplying the necessary reliability (and then I explain how people who have been shot or stabbed are often in a hypoxic or anoxic state, meaning that modern science gives us reasons to doubt the reliability of such statements). 

In its recent opinion in Gardner v. State, 2009 WL 3365652 (Tex.Crim.App. 2009), the Court of Criminal Appeals of Texas explained the dying declaration in an especially artful and clear way, and I think that I will use its two part explanation in teaching the rule to students in future classes,

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October 24, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, October 23, 2009

You've Got Mail: Eastern District Of Pennsylvania Finds Plaintiff's E-Mails Admissible In Sexual Harassment Case Despite Rape Shield Rule

A woman sues her employer, claiming, inter alia, sexual harassment based on an arguably hostile work environment. Specifically, she claims that her superior stared at her breasts on two separate occasions and made the following comment to her, with regard to a dessert, in front of her colleagues, including her superiors, at a work-sponsored dinner: "I heard it's really good if you go down deep, into the chocolate, with your berry." Should the employer be able to present evidence of e-mails sent by the plaintiff to a non-work friend from her work account, which, according to the court itself, contained sexual "jokes and stories about generic topics, made-up characters or representative figures (e.g. Santa Claus)"?

According to the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Seybert v. International Group, Inc., 2009 WL 3297304 (E.D.Pa. 2009), the answer is "yes." I strongly disagree.

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

Thursday, October 22, 2009

Against Interest: Article Discusses Proposed Change To Statement Against Interest Hearsay Exception

Federal Rule of Evidence 804(b)(3) currently 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. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

As far as I know, the Rule is unique among the Federal Rules of Evidence as the only Rule that makes it more difficult for a criminal defendant to introduce evidence than it is for the prosecution to admit evidence (Compare my earlier post about how almost all of the Federal Rules of Evidence make it at least as difficult to admit evidence against a criminal defendant as it is to admit evidence against a civil defendant). Presently, criminal defendants trying to present statements against interest to exculpate themselves must present evidence of corroborating circumstances, but prosecutors trying to present statements against interest to incriminate criminal defendants need not provide such evidence. It appears, though, that this disparity is about to change.

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

Wednesday, October 21, 2009

Forfeit Victory, Take 11: California Appellate Court Finds Forfeiture By Wrongdoing Doctrine Applies To Attempts To Prevent Victims From Reporting Abuse

Last year, I did a series of posts on the Supreme Court's opinion in Giles v. California, which construed the scope of the forfeiture by wrongdoing doctrine. Under that doctrine, there is an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

In Giles, the Court held that application of the forfeiture by wrongdoing doctrine requires a specific intent on the part of a criminal defendant to render a witness unavailable for trial (e.g., the witness tampering situation), meaning that the doctrine does not apply in a case where, for instance, a man allegedly murders a woman and then stands trial for her murder. But what if a man murders a woman (at least in part) to prevent her from reporting domestic violence and/or to prevent her from testifying against him at his trial for domestic violence? Can the man raise a hearsay/Confrontation Clause objection to the admission of the woman's prior statements at his trial for murdering the woman? Well, that's an interesting question and one which I previously answered incorrectly, if dicta from the recent opinion of the California Court of Appeal, Second District, in People v. Banos, 2009 WL 3337673 (Cal.App. 2 Dist. 2009), is accurate.

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

Tuesday, October 20, 2009

Beast Of Burden: Court Of Appeals Of Michigan Seemingly Misapplies Rule 609(c) In Admitting Defendant's Prior Conviction For Impeachment Purposes

Michigan Rule of Evidence 609(c) provides that 

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.

Meanwhile, other portions of Michigan Rule of Evidence 609 allow for the admission of evidence of certain prior convictions that are no more than ten years old. So, what should happen in the following case? A defendant is on trial in 2006 and has a previous conviction from 1992 for armed robbery. Neither the prosecution nor the defendant presents any evidence regarding the date of the defendant's release from confinement imposed for that conviction. Under Michigan Rule of Evidence 609(c), should the conviction be inadmissible because the prosecution failed to prove that the conviction was no more than ten years old, or should the conviction be potentially admissible because the defendant failed to prove that the conviction was more than ten years old? In its recent opinion in People v. Watts, 2009 WL 3321511 (Mich.App. 2009), the Court of Appeals of Michigan chose the latter option. I disagree.

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October 20, 2009 | Permalink | Comments (2) | TrackBack (0)

Monday, October 19, 2009

Pregnant Pause: District Of Idaho Finds Declarant Unavailable Based Upon Late Stage Pregnancy

In 2004, the Supreme Court found in Crawford v. Washington, 541 U.S. 36 (2004), that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify 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. In its recent opinion in McKinney v. Fisher, 2009 WL 3151106 (D. Idaho 2009), the United States District Court for the District of Idaho had to decide whether a declarant in the latter stages of an at-risk pregnancy was "unavailable" for Confrontation Clause purposes. The court answered the question in the affirmative, and I agree.

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

Sunday, October 18, 2009

Judging Judges: Third Circuit Denies Appeal Based Upon Judicial Comment And Questioning

A defendant is on trial for being a felon in possession of a firearm. While a witness for the prosecution is on the stand, the prosecution engages in direct and redirect examinations, and defense counsel engages in cross and re-cross examinations. During defense counsel's questioning of the witness, the judge makes a negative comment regarding the interrogation. Moreover, at the end of re-cross, the judge is not completely satisfied with these four examinations and decides to step in and ask the witness a few more questions, eliciting testimony that incriminates the defendant. After the defendant is convicted, he appeals, claiming that the judge should not have asked these questions because he became, in effect, a second prosecutor. Should the court grant the defendant a new trial? According to the Third Circuit in its recent opinion in United States v. Holder, 2009 3287534 (3rd Cir. 2009), the answer is "no," as long as the judge did not overstep the bounds of prudential judicial conduct.

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