EvidenceProf Blog

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

Saturday, December 19, 2009

Make Me Whole, Take 3: Minnesota Opinion Involves Yet Another Disastrous Application Of Minnesota's "Whole Person" Rationale

I have done a couple of previous posts (here and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. Atkinson, 2009 WL 4573726 (Minn.App. 2009).

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

Friday, December 18, 2009

Not So Refreshing, Take 2: Minnesota Opinion Reveals Difference Between Minnesota And Federal Rule of Evidence 612

Federal Rule of Evidence 612 provides that if a "writing" is used to refresh a witness' recollection,

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.

The recent opinion of the Court of Appeals of Minnesota in State v. Mashek, 2009 WL 4573703 (Minn.App. 2009), reveals an important distinction between Minnesota Rule of Evidence 612 and its federal counterpart.

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December 18, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 17, 2009

Not So Refreshing: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule of Evidence 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.

As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Kirk, 2009 WL 4547584 (N.J.Super.A.D. 2009), makes clear, there is an important distinction between New Jersey Rule of Evidence 612 and its federal counterpart.

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

Wednesday, December 16, 2009

The Best Of Everything, Take 2: Federal Public Defender Files Petition For Writ Of Certiorari With Supreme Court In Best Evidence Case

Back in June, I posted an entry about the Fourth Circuit's recent opinion in United States v. Smith2009 WL 1452045 (4th Cir. 2009). In Smith, Cordell Smith was convicted of possessing with intent to distribute a quantity of crack cocaine, using and carrying one or more firearms during and in relation to a drug-trafficking crime, and possessing one or more firearms, having been previously convicted of a felony. To prove the interstate nexus element of the felon in-possession count, the government presented the testimony of Special Agent Andrew Cheramie of the ATF that firearms recovered from Smith's apartment had been manufactured in states other than North Carolina. Smith's attorney objected to the proposed testimony of Special Agent Cheramie on the ground that it would violate Federal Rule of Evidence 1002. He argued that Cheramie's testimony, which was based on written reference materials and ATF computer databases, none of which were offered into evidence, violated the Best Evidence Rule. The district court overruled the objection and allowed Cheramie to testify without requiring him to introduce any reference materials into evidence

The Fourth Circuit subsequently affirmed, and I disagreed with its holding, concluding that:

Clearly, the government sought to prove the contents of the writings and other materials from which Cheramie learned that firearms recovered from Smith's apartment had been manufactured in States other than North Carolina. As Smith noted, Cheramie had no independent personal knowledge of where those firearms were manufactured. Instead, his knowledge of where those firearms were manufactured was dependent on the writings and other materials. Thus, his testimony was, in effect, proving the contents of the writings and other materials because he had no personal knowledge of where the firearms were manufactured. Accordingly, Cheramie's testimony triggered the Best Evidence Rule, and the Fourth Circuit's conclusion was erroneous.   

Well, yesterday, I got an e-mail from Matthew R. Segal, an Assistant Public Defender, who informed me that he has filed a petition for writ if certiorari with the Supreme Court for Smith. You can download a copy of the petition by clicking on the link below:

I agree with the points made in the petition and continue to believe that Cheramie's testimony was received in violation of the Best Evidence Rule. According to Segal, "The government has waived its right to file an opposition brief, so the case has been distributed for the Supreme Court's conference of January 8, 2010."


December 16, 2009 | Permalink | Comments (6) | TrackBack (0)

Waiving Away Uniformity: D.C. Opinion Reveals Why Rule 502 Will Not Harmonize Privilege Waiver Practices

The new Federal Rule of Evidence 502(b) provides that:

When made in a Federal proceeding or to a Federal office or agency, the disclosure does not operate as a waiver in a Federal or State proceeding if:

1. the disclosure is inadvertent;

2. the holder of the privilege or protection took reasonable steps to prevent disclosure; and

3. the holder promptly took reasonable steps to rectify the error, including (if applicable) following Federal Rule of Civil Procedure 26(b)(5)(B).

The new Rule was intended to bring "uniformity across the circuits to their once differing treatment of the effect of certain inadvertent disclosures of privilege materials." As can be seen from the recent opinion of the United States District Court for the District of Columbia in Amobi v. District of Columbia Department of Corrections, 2009 WL 4609593 (D.D.C. 2009), however, the Rule is unlikely to bring the desired uniformity.

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December 16, 2009 | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 15, 2009

Curiosity Killed The Jury, Take 3: Baltimore Sun Lists Several Instances Of Technology-Assisted Jury Misconduct

Is the jury system broken? I've done several posts over the last year about how new technologies are causing (or should be causing) mistrials across the country. Back in March, I posted an entry about jurors improperly exchanging e-mails during trial and "wonder[ed] whether improper e-mailing among jurors is an increasing problem that courts will have to address at some point." Later that month, I posted an entry about mistrials being declared after jurors improperly used Google and twitter to look up and communicate details about the cases they were hearing.  In May, I  posted an entry about a mistrial being declared after a witness engaged in text-messaging while he was on the witness stand. And in November, I posted an entry about three more instances of curiosity killing the jury. More recently, an article in Sunday's Baltimore Sun lists several other instances of such jury misconduct.

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

Monday, December 14, 2009

Forfeit Victory: Florida Opinion Reveals That Florida Has Not Adopted The Forfeiture By Wrongdoing Doctrine

Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing doctrine, provides an exception to the rule against hearsay for 

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

As the recent opinion of the District Court of Florida, First District, in Chavez v. State, 2009 WL 4591048 (Fla.App. 1 Dist. 2009), makes clear, however, the common-law hearsay exception of forfeiture by wrongdoing is not authorized under Florida's Evidence Code, unlike numerous other states' evidence codes.

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December 14, 2009 | Permalink | Comments (2) | TrackBack (0)

Sunday, December 13, 2009

Hardwood, Hard Coaching: Sixth Circuit Finds Evidence Covered By Rule 407 In Corporal Punishment Appeal

Federal Rule of Evidence 407 provides that:

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

Usually, this rule applies when an instrumentality causes an injury and the defendant subsequently makes the instrumentality safer. Sometimes, however, the rule applies in other factual contexts. As I noted in a recent post, the rule also applies to changes to allegedly discriminatory hiring practices. As the recent opinion of the Sixth Circuit in Nolan v. Memphis City Schools, 2009 WL 4723166 (6th Cir. 2009), makes clear, the rule also applies to other employment changes.

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December 13, 2009 | Permalink | Comments (0) | TrackBack (0)