Saturday, November 21, 2009
Double Impact: Article Reveals That Indiana Precludes Victim Impact Statements In Cases Where The Death Penalty Or Life Without Parole Could Be Imposed
Friday, November 20, 2009
Judge Advocate?: Court Of Appeals Of Ohio Finds Judge Didn't Abuse Discretion By Asking 89 Questions To Witness In Domestic Violence Trial
Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Similarly, Ohio Rule of Evidence 614(B) provides that "[t]he court may interrogate witnesses, in an impartial manner, whether called by itself or by a party." But when does a court go too far? In the words of the Ohio rule, when does the judge overstep his power and transform from an impartial interrogator into a partisan advocate? That was the question that the Court of Appeals of Ohio, Eighth District had to answer in its recent opinion in State v Redon, 2009 WL 3765971 (Ohio App. 8 Dist. 2009). And I am not entirely satisfied with its answer.
Thursday, November 19, 2009
Compromising Position: Court Of Appeals Of Texas Notes That Rule 606(b) Precludes Jury Impeachment Regarding Compromise Verdict
Texas Rule of Evidence 606(b) provides that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
As the recent opinion of the Court of Appeals of Texas, Texarkana, in Orange v. State, 2009 WL 3851068 (Tex.App.-Texarkana 2009), makes clear, like its federal counterpart, Texas Rule of Evidence 606(b) does not permit jury impeachment on the issue of whether the jury reached a compromise verdict.
Wednesday, November 18, 2009
Federal Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling the witness." The federal rule eliminated the old "voucher rule," under which the party calling a witness was deemed to have vouched for his credibility and thus could not impeach him. A party, however, cannot call a party for the sole purpose of impeaching him through his prior inconsistent statement(s) as is made clear by cases such as United States v. Ince, 21 F.3d 576 (4th Cir. 1994). This fact is made even clearer in Ohio Rule of Evidence 607(A) as can be seen from the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Stevens, 2009 WL 3808375 (Ohio.App. 12 Dist. 2009).
Tuesday, November 17, 2009
California Split: Retaliatory Termination Case Reveals Split Between California And Federal Rules Of Evidence On Settlement Evidence
Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority (emphasis added).
Monday, November 16, 2009
Statements Against Interest And The Confrontation Clause: Professor James Duane Uncovers Troubling Statement In Advisory Committee Note To Amendment To Rule 804(b)(3)
Sunday, November 15, 2009
Make Me Whole, Take 2: Court Of Appeals Of Minnesota Gets Impeachment Ruling Right, Other Rulings Wrong In Second-Degree Murder Appeal
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.
Previously on this blog, I have stated my displeasure with Minnesota's "whole person" approach to Rule 609(a)(1), under which Minnesota courts usually admit prior conviction evidence without much consideration of unfair prejudice under the theory that it permits the jury to see the "whole person" of the testifying witness. The recent opinion of the Court of Appeals of Minnesota in State v. Thelen, 2009 WL 3735430 (Minn.App. 2009), is the exception to that rule, and I agree with its Rule 609(a)(1). But other parts of the opinion give me pause.