EvidenceProf Blog

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

Saturday, December 5, 2009

Crossing Over: Second Circuit Opinion Reveals Party Should Have Been Able To Invoke Fifth Amendment Privilege In Response To Immigration Interrogation

In my forthcoming essay, Crossing Over, I argue that

immigration status is an improper subject for impeachment because it is most akin to trespassing, which is not an impeachable offense under Rule 608, and fundamentally dissimilar from the acts related to crimen falsi, which are generally the only impeachable offenses under the Rule. 

Moreover, even if immigration status were an impeachable offense under Rule 608, courts should foreclose immigration interrogation for impeachment purposes because of its capacity to divide and prejudice jurors and discourage illegal aliens from bringing legitimate lawsuits for fear of being deported. Finally, if an attorney seeks to impeach a witness based upon his immigration status or his alleged commission of some immigration-related crime, such as fraudulently obtaining documentation, the witness should be able to invoke his Fifth Amendment privilege against self-incrimination.

The recent opinion of the Second Circuit in Bonilla v. Jaronczyk, 2009 WL 4282000 (2nd Cir. 2009), contains an example of the latter situation, i.e., a situation where a party asked about immigration-related crimes should have been able to invoke his Fifth Amendment privilege against self-incrimination.

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December 5, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, December 4, 2009

Article Of Interest: Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence By Professor Jeffrey Bellin

[T]he Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt. Griffin v. California, 380 U.S. 609, 615 (1965).

[T]he Fifth Amendment requires that a criminal trial judge must give a "no-adverse-inference" jury instruction when requested by a defendant to do so. Carter v. Kentucky, 450 U.S. 288, 301 (1981)

As SMU Dedman School of Law Professor Jeffrey Bellin notes in his forthcoming article, Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, "[d]espite their doctrinal shortcomings, the holdings of Griffin and Carter remain largely intact today, forming one of the defining features of American criminal trials." Those shortcomings form the basis for the reconceptualization Professor Bellin sets forth in his article.

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December 4, 2009 | Permalink | Comments (2) | TrackBack (0)

Thursday, December 3, 2009

You've Got Mail: Military Court Finds Rule Of Completeness Not Violated By Admission Of 10 E-Mails Against Air Force Recruiter

Like its federal counterpartMilitary Rule of Evidence 106, the "rule of completeness," provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it...

As the language of this Rule makes clear, when a party introduces a writing or writings, the adverse party must be able to explain to the court what other writings or parts of the introduced writing or writings  were excluded and why fairness requires that they be considered contemporaneously. These sound like pretty basic requirements, but they were requirements that the appellant could not satisfy in United States v. Perry, 2009 WL 4111204 (A.F.Ct.Crim.App. 2009), a case that makes me wonder about the interplay between Rule 106 and e-mail evidence.

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December 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 2, 2009

Refreshment Refresher: Fifth Circuit Notes That Basically Anything Can Be Used To Refresh Recollection Under Rule 612

Federal Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Implicit in this Rule is the fact that parties can use basically anything tangible to refresh the recollection of witnesses as the recent opinion of the Fifth Circuit in United States v. Carey, 2009 WL 4066672 (5th Cir. 2009), makes clear.

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December 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 1, 2009

Article Of Interest — A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions By Professors Hart and Secunda

Over the past half-century it has become commonplace for courts and commentators to distinguish two uses of social science in law. Social science is said either to prove ‘legislative facts' that concern general questions of law and policy, or to prove ‘adjudicative facts' that pertain only to the case at hand. The choice of procedures to introduce research findings has depended heavily on the assignment of the research to one of these two categories. In this article, we identify a new generic use of social science in law that is emerging from recent cases. In this third use, research findings presented in court are neither legislative nor adjudicative facts themselves. Rather, empirical information is being offered that incorporates aspects of both of the traditional uses: general research results are used to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case. We call this new use of social science in law the creation of social frameworks. Laurens Walker & John Monahan, Social Frameworks:  A New Use of Social Science in Law, 73 VA.L.REV. 559, 559 (1987).

In their landmark 1987 essay, Social Frameworks, Professors Walker and Monahan christened this social science evidence of the third kind. As University of Colorado School of Law Professor Melissa Hart and Marquette University Law School Professor Paul Secunda note in the introduction to their new essay,A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), "For several decades now, courts have accepted social framework evidence in employment litigation, but its use has not been without controversy."

That controversy originated in the courtrooms, but it has recently spilled over "to the pages of law reviews," with three academics arguing in a recent essay "that social framework testimony as it is commonly accepted by district courts should be categorically disallowed," i.e., "that courts should never let social scientists link general social science findings to an employer's specific workplace policies unless the proffered expert has conducted his or her own empirical research in that particular workplace." The thesis of Professors Hart and Secunda in their essay is that

the arguments for categorically excluding such testimony are fundamentally flawed. Social framework evidence, offered by qualified social scientists, plays a central role in modern employment discrimination litigation. By offering insight into the operation of stereotyping and bias in decision making, social framework experts can help fact finders to assess other evidence more accurately. When an expert applies her knowledge of studies in her field to an examination of the policies in place at a challenged workplace, the resulting testimony is well within what is permitted by the Federal Rules of Evidence. There is no basis in evidence law for requiring experts to conduct firsthand empirical studies of a particular workplace. Moreover, in the particular context of class action litigation, social framework evidence certainly satisfies the central admissibility criterion of relevance or "fit"--it is "valid for the purpose for which it is offered." In large employment class action suits like the landmark Dukes v. Wal-Mart Stores, Inc. gender discrimination litigation, plaintiffs offer social framework testimony at the class certification stage of the litigation to address the issue of whether the plaintiffs share a common question of fact or law that will satisfy federal class action standards. The legal question of commonality is directly addressed by the social scientist's expertise. Thus, a categorical exclusion of this evidence is inconsistent with the Federal Rules of Evidence and U.S. Supreme Court precedent on the district courts' responsibility for assessing the admissibility of expert testimony more generally.

This post agrees with the essay by Professors Hart and Secunda and argues that social framework evidence in employment litigation should be admissible to the same extent as syndrome evidence in criminal prosecutions.

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December 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Monday, November 30, 2009

No Virtual Impeachment: First Circuit Affirms Opinion Precluding Impeachment Of Hearsay Declarant Despite Disagreeing On Rationale

Either through deliberate tactical choices, or simply as a result of precedent and inertia, our traditional approach to hearsay and confrontation is mired in exclusionary thinking. Whether one consults reported case law, or basic texts on trial advocacy, little is said of the impeachment of hearsay declarants. John G. Douglass, Beyond Admissibility:  Real Confrontation, Virtual Cross-Examination, and the Right to Confront Hearsay, 67 GEO. WASH. L. REV. 191, 252 (1999).

As Douglass, now the Dean of the University of Richmond School of Law, went on to note in his seminal 1999 law review article, "[t]hat omission, however, is not born of impossibility," with Federal Rule of Evidence 806 and many state counterparts providing that:

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

According to Douglass, this Rule allows for "virtual cross-examination." The problem, though, is that this Rule is "seldom used," meaning that both attorneys and judges often do not know when it applies (and when it doesn't). One clear example of this problem can be found in the recent opinion of the First Circuit in United States v. Rodriguez-Berrios, 573 F.3d 55 (1st Cir. 2009).

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November 30, 2009 | Permalink | Comments (1) | TrackBack (0)

The Lone Ranger And Tonto Fistfight In Heaven, Take 7: Supreme Court Denied Cert In Benally v. United States

Today, the Supreme Court denied cert in Benally v. United States, the case in which I submitted an amicus brief. The post containing my brief has links to all of my posts on the case, which dealt with whether racist statements by jurors against Native Americans during deliberations could be used to impeach a verdict entered against a Native American defendant and/or to prove that jurors lied on voir dire when they claimed that they did not harbor racial prejudice. Unfortunately, all we have is the denial of cert, so we don't know why the Court denied cert. For instance, one argument raised by the Solicitor General was that the Court should not grant cert because Benally had not yet been sentenced. If that's the case, I am hopeful that the Court will resolve the issue in the future.


November 30, 2009 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 29, 2009

EvidenceProf Blog On Twitter: http://twitter.com/EvidenceProf

You can now follow EvidenceProf Blog on twitter at http://twitter.com/EvidenceProf. On twitter, I will tweet the headline (or an abbreviated version) and a link to each new post on here. I also plan to do tweets about evidentiary issues in pop culture and evidentiary developments that didn't quite make it on the blog, but which I think might interest readers.


November 29, 2009 | Permalink | Comments (0) | TrackBack (0)

True Lies: Ohio Defendant Acquitted Despite Evidence Of Failed Polygraph Test Being Presented To Jury

As I have noted before on this blog, "Evidence of polygraph test results are per se inadmissible (except in New Mexico) unless both sides stipulate to their admission before the test is taken." A large part of the reason polygraph results are usually deemed inadmissible is because courts fear that jurors presented with a defendant's failed polygraph test will automatically find the defendant guilty and jurors presented with a defendant's passed polygraph test will automatically find that defendant not guilty. A recent case out of Ohio indicates otherwise. In that case, a man was charged with raping and molesting a former girlfriend's daughter, and the defense and the prosecution agreed that the defendant would take a polygraph test with the results being admissible at trial. The defendant's gamble appeared to be a losing bet as he failed the polygraph. Surprisingly, however, the jury still found that defendant not guilty. And that makes me wonder: Are polygraph results as persuasive as courts think them to be?

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November 29, 2009 | Permalink | Comments (1) | TrackBack (0)