EvidenceProf Blog

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

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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

I have written several posts on this blog about the ever controversial topic of victim impact statements (previous posts can be found herehereherehereherehere, and here). Those posts have dealt with topics such as the type of music that can accompany such statements, whether such statements can invoke religious authority, whether such statements are admissible in cases of defendants found not guilty by reason of insanity, and whether the admission of such statements should be mandatory (in Ireland). This post deals with the near converse of the proposed Irish rule: whether such statements should be per se prohibited in cases that could result in the death penalty or life without the possibility of parole being imposed. As a recent article makes clear, that is (in essence) currently the law in Indiana.

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

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.

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November 20, 2009 | Permalink | Comments (0) | TrackBack (0)

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.

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November 19, 2009 | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 18, 2009

Feigned Surprise Or The Real Thing?: Ohio Opinion Helps Explain Limits On Rule 607 Impeachment

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).

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November 18, 2009 | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 17, 2009

California Split: Retaliatory Termination Case Reveals Split Between California And Federal Rules Of Evidence On Settlement Evidence

In relevant part, Federal Rule of Evidence 408 provides that
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).

In other words, for evidence relating to settlement negotiations to be deemed inadmissible under the federal rule, those negotiations must come after a claim, which means a lawsuit or at least actions from which the two sides could reasonably anticipate litigation. As the recent opinion of the Court of Appeal, Sixth District, California, in Mangano v. Verity, Inc., 2009 WL 3807485 (Cal.App. 6 Dist. 2009), makes clear, California's counterpart is not so constrained.

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

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)

I have written previously on this blog about the upcoming amendment to Federal Rule of Evidence 804(b)(3), the statement against interest exception to the rule against hearsay. I have also written previously about the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), and its holding 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. So, it seems natural that the 2009 Advisory Committee Note to the amendment would mention the Confrontation Clause implications of the new Rule 804(b)(3). Apparently, though, that is not the case as Regent Law School Professor James Duane notes in a very interesting and compelling e-mail to the Evidence professor listserv. Below is that e-mail, which I fully endorse:

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November 16, 2009 | Permalink | Comments (0) | TrackBack (0)

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

Minnesota Rule of Evidence 609(a)(1) states,

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.

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November 15, 2009 | Permalink | Comments (0) | TrackBack (0)