EvidenceProf Blog

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

Saturday, November 28, 2009

Rescue 911: Court Of Appeals Of Mississippi Stretches To Finds Statements Triggered Crime-Fraud Exception To Attorney-Client Privilege

Mississippi Rule of Professional Coduct 1.6(a) provides that:

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation, or the disclosure is permitted by paragraph (b).  

Meanwhile, Mississippi Rule of Professional Coduct 1.6(b)(1) provides that "[a] lawyer may reveal such information to the extent the lawyer reasonably believes necessary...to prevent reasonably certain death or substantial bodily harm."  Additionally, Mississippi Rule of Evidence 502(b), Mississippi's attorney-client privilege provides that:

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.  

So, what happens when a client's behavior triggers Mississippi Rule of Professional Coduct 1.6(b)(1) but is still covered by Mississippi Rule of Evidence 502(b)? It is an interesting question, but one which the Court of Appeals of Mississippi found that it did not have to address in its recent opinion in Shorter v. State, 2009 WL 4043361 (Miss.App. 2009). I agree with the court's conclusion but disagree with its reasoning.

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November 28, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, November 27, 2009

Black Friday Felony: Court Precludes Defendant From Withdrawing Guilty Plea To Charges In Connection To Black Friday Robbery Of Wal-Mart

Black Friday, the day after Thanksgiving, is the biggest shopping day of the year, with merchants and the media now referring to it as the start of the period in which retailers go from being in the red to being in the black (for more on the origins of the term, click here). It thus seems like a day that criminals, like consumers, could mark on their calendars because retailers coffers will be clogged with customers' cash. That certainly seemed to be the case in United States v. Young, 2008 WL 163045 (E.D. Pa. 2008). In Young, Christopher Young pleaded guilty to crimes in connection with the robbery of a Wal-Mart in Philadelphia (where the phrase Black Friday was coined) in the early morning hours after Black Friday. He then tried to withdraw that plea but was faced with a problem faced by many Black Friday customers: a "no return" policy.

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November 27, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 26, 2009

Turkey Of An Opinion: Court Precludes Jury Impeachment Despite Foreperson Blocking Door To Prevent Juror From Reporting "Not Guilty" Vote In Thanksgiving Related Case

Federal Rule of Evidence 606(b) provides in relevant part 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 course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

As the language of this Rule makes clear, jurors cannot impeach verdicts based upon allegations that jurors engaged in threats of violence or actual violent acts against other jurors. But, as I noted in a previous post, Minnesota courts do permit jury impeachment based upon such allegations, and, as I argued in that post, I think that other courts should permit such jury impeachment as well as impeachment based upon psychological intimidation or coercion between jurors. If you disagree with me, I ask you to consider the facts of Panella v. Marshall, 2009 WL 2475007 (E.D. Cal. 2009).

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November 26, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 25, 2009

Article of Interest: The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary Privileges By Professors Mosteller And Broun

In Rob Reiner's classic movie "The Princess Bride" (based upon William Goldman's equally classic book), the following exchange occurs:


Inigo Montoya:  You keep using that word. I do not think it means what you think it means.

In their forthcoming article, The Danger to Confidential Communications in the Mismatch between the Fourth Amendment's 'Reasonable Expectation of Privacy' and the Confidentiality of Evidentiary PrivilegesUniversity of North Carolina School of Law Professors Robert P. Mosteller and Kenneth S. Broun argue that the Supreme Court of North Carolina played the role of Vizzini in a recent opinion. In that opinion, State v. Rollins, 675 S.E.2d 334 (N.C. 2009), the North Carolina Supremes found that statements which Mickey Rollins made to his wife when she visited him in prison, and which she surreptitiously recorded for authorities, were not privileged under N.C.G.S. Section 57(c), North Carolina's privilege for confidential marital communications.

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November 25, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 24, 2009

Trust Me: Supreme Court Of Appeals Of West Virginia Reverses Murder Conviction Based Upon Expert Opinion Testimony On Credibility

A man is on trial for first degree murder and felony conspiracy, and the primary witnesses against him are a police corporal and another corporal's girlfriend. Defense counsel cross-examines these witnesses for the prosecution about factual discrepancies in their testimony but does not engage in a broad based attack on the credibility of either witness. In response, the prosecution has the chief investigator for the State testify that, in his opinion, these two witnesses were telling the truth. As the recent opinion of the Supreme Court of Appeals of West Virginia in State v. Martin makes clear, there are two fundamental problems with this line of questioning by the prosecution.

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November 24, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, November 23, 2009

A Taxing Matter: Fifth Circuit Finds Exception To Confidential Marital Communications Privilege Applied In Tax Fraud Appeal

Federal courts recognize a confidential marital communications privilege, under which (according to most courts) a spouse can prevent a testifying spouse from testifying about confidential marital communications and/or a testifying spouse can refuse to testify about confidential marital communications. Some federal courts, however, have an exception to this privilege for confidential marital communications about crimes in which the spouses are jointly participating. But what happens when a spouse proposes criminal activity that would implicate both spouses and the other spouse advises against that criminal activity, but the proposing spouse nonetheless engages in the criminal activity? Should the exception apply? That was the issue faced by the Fifth Circuit in its recent opinion in United States v. Miller, 2009 WL 3924052 (5th Cir. 2009). I think that the court got it wrong.

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

Sunday, November 22, 2009

Summary Judgement: First Circuit Finds Summary Evidence Summarizing Testimony Admissible Under Rule 1006 In Tax Appeal

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

In its recent opinion in United States v. McElroy, 2009 WL 3932266 (1st Cir. 2009), the First Circuit had to decide whether and when this Rule applies to summary evidence that summarizes testimony as opposed to summary evidence that summarizes documents.

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