EvidenceProf Blog

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

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Saturday, November 14, 2009

A Body Treatise: Court Of Appeals Of Minnesota Finds Learned Treatise Exception Didn't Apply To Amnesty International Report

Like its federal counterpartMinnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay for "statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice" to the extent that those statements are "called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination." The Rule goes on to provide, however, that "[i]f admitted, the statements may be read into evidence but may not be received as exhibits." The problem for the appellant in In re Welfare of G.S.G., 2009 WL 3736134 (Minn.App. 2009), was that he could not meet the requirements of this hearsay exception.

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

Friday, November 13, 2009

Facebook Status -- Exonerated: Suspect's Facebook Update Corroborates Alibi In Brooklyn Robbery

I have written several posts on this blog (herehereherehere, and here) about cases dealing with the admissibility of evidence from MySpace pages. A case out of New York, however, gives me my first opportunity to address the admissibility of evidence from a Facebook page. And indeed, it appears to be the first case in which a Facebook update has been used as alibi evidence.

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November 13, 2009 | Permalink | Comments (1) | TrackBack (0)

Thursday, November 12, 2009

Settling For This: Eastern District Of Pennsylvania Finds Settlement Evidence Inadmissible In Criminal Case Under Rule 403, Not Rule 408

If you want a primer on recently amended Federal Rule of Evidence 408, you should read the recent opinion of the United States District Court for the Eastern District of Pennsylvania in United States v. Davis, 2009 WL 3646459 (E.D. Pa. 2009). In Davis, Lee Davis, Jr. was charged with five counts of wire fraud and one count of mail fraud, relating to a scheme to defraud. One of the entities which Davis allegedly defrauded was Regency Oaks. Before trial, Davis brought a 

motion in limine for exclusion of a settlement agreement between [himself] and...Regency Oaks. The document, entitled "Payment Agreement," addresse[d] workers' compensation insurance claims made against Regency Oaks in the absence of insurance coverage, which had been promised by [Davis] but was not actually secured. As part of the settlement, [Davis] agreed to compensate Regency Oaks for attorneys' fees, medical bills, and other statutory penalties in connection with claims for injuries allegedly suffered by employees of Regency Oaks and its clients. In the prefatory clauses laid out at the beginning of the agreement, [Davis] ma[de] several admissions regarding his liability in the matter.

The Eastern District of Pennsylvania thus had to decide whether to exclude this settlement evidence under Federal Rule of Evidence 408.

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

Wednesday, November 11, 2009

Symposium Announcement: Blaine Sloan Lecture on International Law

Pace International Law Review is proud to host this year's Symposium entitled "Comparative Constitutional Law: National Security Across the Globe" in conjunction with the Blaine Sloan Lecture on International Law: "After Gitmo: Obama Grapples with Preventive Detention." Scott Horton of Harper's Magazine is the keynote speaker.   

The symposium will be held on November 13, 2009.  It is a day long discussion on the legal issues faced by various nations which must balance constitutional and civil rights with national security needs. The symposium will be comprised of a series of panel discussions and short lectures throughout the day. 

For additional information & registration, please visit http://www.pace.edu/page.cfm?doc_id=24238.

November 11, 2009 | Permalink | Comments (0) | TrackBack (0)

(Not) Dismissed With Prejudice: First Circuit Finds Judges Have Discretion To Allow Jury Impeachment Based Upon Allegations Of Juror Racial Bias

Last year, in United States v. Benally, 546 F.3d 1230 (10th Cir. 2008), the Tenth Circuit found that Federal Rule of Evidence 606(b) precluded a juror from impeaching the jury's verdict based upon allegations that the verdict was tainted by racial bias against Native Americans. I wrote about Benally in several posts on this blog (hereherehereherehere, and here), wrote an article inspired by the case, and submitted an amicus brief in support of Benally's petition for writ of certiorari to the Supreme Court (which the Supreme Court will soon hear). My argument is that application of Rule 606(b) to exclude jurors from impeaching their verdicts based upon allegations of juror racial, religious, or other bias violates the right to present a defense recognized in cases such as Chambers v. Mississippi, 410 U.S. 284 (1973), which found that courts cannot apply rules of evidence "mechanistically to defeat the ends of justice." As I note in the article and in the brief, the right to present a defense fits well with cases such as Benally because in McDonald v. Pless, 238 U.S. 264 (1915), the case laying the groundwork for Rule 606(b), the Supreme Court found that jury impeachment is not generally warranted but "recognize[d] that it would not be safe to lay down any inflexible rule because there might be instances in which such testimony of the juror could not be excluded without 'violating the plainest principles of justice.'" My argument is that juror racism is one of those instances. According to its opinion yesterday in United States v. Villar, 2009 WL 3738787 (1st Cir. 2009), the First Circuit agrees.

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November 11, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 10, 2009

The Character Of The Matter: Texas Opinion Reveals Limits On Character Evidence Criminal Defendants Can Present

Like their federal counterpartsTexas Rules of Evidence 404(a)(1)-(2) create a Pandora's box with regard to propensity character evidence and place it firmly in the hands of the criminal defendant. If the defendant does not want the prosecution to present propensity character evidence against him, he merely needs to refrain from presenting any such evidence on his own behalf. Conversely, once the defendant presents propensity character evidence on his own behalf, he opens the door (box) for the prosecution to respond it kind. As the recent opinion of the Court of Criminal Appeals of Texas in Ex parte Miller, 2009 WL 3446468 (Tex.Crim.App. 2009), makes clear, however, there are limits on the types of character evidence that a criminal defendant can present at trial.

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November 10, 2009 | Permalink | Comments (1) | TrackBack (0)

Monday, November 9, 2009

We've Got Insurance: Court Awards New Trial After Husband Tells Wife-Juror About Insurance Information Excluded At Trial

A coal buyer sues the defendants, alleging that they had fraudulently induced it to make advance payments totaling $3.2 million to a coal seller for coal that was never received. At trial trial, and outside the presence of the jury, defense counsel seeks the court's permission to cross-examine a witness about an email exchange that referenced the plaintiff's insurance claim for the missing coal. The court denies permission, finding that the e-mail exchange is irrelevant and unduly prejudicial to the plaintiff. The problem is that a juror's husband is in court during this exchange and later tells his juror-wife about the plaintiff's insurance policy and the debate surrounding the exhibit. The juror-wife subsequently tells the other jurors "I can tell you this now so you won't feel so guilty, that it's possible that [the plaintiff] had an insurance policy." The jury thereafter returns a verdict for the defendants. If the plaintiff learns about the husband's comments after the verdict is entered, can it have the wife impeach the jury's verdict and obtain a new trial? According to a recent opinion by the United States District Court for the Western District of Virginia, the answer is "yes."

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November 9, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 8, 2009

Divine Justice?: Court Refuses To Conduct Voir Dire Of Jurors Besides Foreperson Despite Bible Being Found In Jury Deliberation Room

A defendant is convicted of being a felon in possession of a firearm and ammunition. After the verdict is entered, the judge goes to the jury room with his law clerks to thank the jury. Afterwards, the law clerks inform the judge that they saw a pocket-sized New Testament on a juror notebook on the table. The judge informs the parties of this fact, prompting the defendant to move for a new trial and individual voir dire of each juror to assess any improper influence by a Bible in the jury room. What should the judge do? According to the recent opinion of the United States District Court for the District of Massachusetts in United States v. Rodriguez, 2009 WL 3650857 (D. Mass. 2009), the answer is simply to question the jury foreperson. I fundamentally disagree.

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November 8, 2009 | Permalink | Comments (0) | TrackBack (0)