EvidenceProf Blog

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

Saturday, December 26, 2009

Without Prejudice: Court Of Criminal Appeals Of Tennessee Finds Trial Court Improperly Failed To Weigh Prejudice In Felony Impeachment Ruling

Yesterday's post noted that Minnesota's "whole person" approach fails to take into account the particular probative value of a prior conviction. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Hall, 2009 WL 4642585 (Ten.Crim.App. 2009), dealt with the opposite problem: a court failing to take into the particular prejudicial effect of a prior conviction.

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December 26, 2009 | Permalink | Comments (1) | TrackBack (0)

Friday, December 25, 2009

Just Forget It: Oklahoma Court Finds Calendar Entry About Nike Air Max 2 Shoe Purchase Admissible As A Recorded Recollection In Christmas Related Case

Like Federal Rule of Evidence 803(5)12 O.S.2001 Section 2803(5) provides an exception to the rule against hearsay for:

A record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. The record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.  

As the recent opinion of the Court of Criminal Appeals of Oklahoma in Sanchez v. State, 2009 WL 4797497 (Okla.Crim.App. 2009), makes clear, the exact wording of this rule is very important. In order for a "recorded recollection" to be admissible, the witness does not need a significant lack of recollection, just an insufficient recollection to testify fully and accurately.

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December 25, 2009 | Permalink | Comments (1) | TrackBack (0)

Thursday, December 24, 2009

Later On, We'll Conspire: Court Of Appeals Of Indiana Notes That Statements After A Crime Has Been Perpetrated Cannot Be Co-Conspirator Admissions

Like its federal counterpartIndiana Rule of Evidence 801(d)(2)(E) provides that

[a] statement is not hearsay if...[t]he statement is offered against a party and is... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.

As the text of this Rule makes clear, the Rule only covers statements made during the course of (and in furtherance of) a conspiracy and does not cover statements made after the conspiracy has been effected and the crime has been perpetrated. And that is exactly what the Court of Appeals of Indiana found in determining that the trial court erred in admitting an alleged co-conspirator admission in its recent opinion in French v. State, 2009 WL 4842607 (Ind.App. 2009). I thus agree with the court's conclusion on that issue, but I am not sure that I agree with the court's conclusion that this error was harmless.

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

Wednesday, December 23, 2009

Mistaken Identification: Supreme Court Of Utah Reverses Past Precedent, Allows Expert Testimony On Inaccuracy Of Eyewitness Identifications

I have done several posts on this blog (herehereherehere, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it. Now, based upon the recent opinion of the Supreme Court of Utah in State v. Clopten, 2009 WL 4877404 (Utah 2009), we can add Utah courts to the list of courts that allow such expert testimony.

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

Tuesday, December 22, 2009

The Best Of Everything, Take 3: Evidence Professors Submit Amicus Brief In Best Evidence Case

A few days ago, I posted an entry about the filing of a petition for a writ of certiorari with the Supreme Court in United States v. Smith2009 WL 1452045 (4th Cir. 2009), the case in which I think that the Fourth Circuit made an erroneous Best Evidence ruling. Thereafter, Matthew R. Segal, the Assistant Public Defender who filed the petition, forwarded me an amicus brief submitted in support of the petition by Georgetown University Law Center  Professor Paul Rothstein and University of California, Berkeley, School of Law Professor Eleanor Swift. I strongly agree with the points made in the brief and have provided a link below from which reader can download the brief.

Download Amicus Brief


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

Make Me Whole, Take 4: Court Of Appeals Of Minnesota Calls Out Supreme Court Of Minnesota Over "Whole Person" Approach To Impeachment

Wow! I have railed against Minnesota's "whole person" approach to the felony conviction impeachment rule on several occasions, with my my most recent post on the topic coming a few days ago. Well, it appears that someone agrees with me. That someone? The Court of Appeals of Minnesota in its recent opinion in State v. Peters, 2009 WL 4795971 (Minn.App. 2009).

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

Monday, December 21, 2009

Incomplete Ruling: Third Circuit Opinion Implies That Violations Of Rule 106 Can Never Lead To A Reversal On Appeal

Federal 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 the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

There is a split among courts as to whether this is merely a rule regarding timing or also a rule regarding admissibility. In other words, all courts agree that when a party introduce a writing or recorded statement or a part thereof, the Rule allows the opposing party to contemporaneously present any other part or any other writing or recorded statement, as long as the part or statement is otherwise admissible. Some courts claim, however, that the Rule also allows for the admission of any other part or any other writing or recorded statement, regardless of whether the part or statement is otherwise admissible. In other words, these courts find that the Rule can transform otherwise inadmissible evidence into admissible evidence. Other courts disagree with this conclusion, but, as noted, all courts agree that the Rule is a rule regarding timing. And yet, in its recent opinion in United States v. Evans, 2009 WL 4810545 (3rd Cir. 2009), the Third Circuit seemed to imply that an erroneous ruling precluding a party from contemporaneously presenting evidence can never form the basis for a reversal.

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

Sunday, December 20, 2009

Article Of Interest: No Strict Rules Of Evidence In Labor And Employment Arbitration, By Professor Michael Z. Green

I have written several previous posts on this blog about cases in which the Federal Rules of Evidence or state counterparts do not apply (see, e.g., herehereherehere, and here). What I have found in most of these cases, though, is that the judge will still look to the principles underlying the rules of evidence in making evidentiary rulings. For instance, in disability adjudications, many Administrative Law Judges make an inquiry similar to the Rule 702 inquiry in determining whether to admit vocational expert testimony (although there is a split on the issue). In a Board of Veterans' Appeals case from earlier this year, a court looked to Federal Rule of Evidence 803(7) for persuasive guidance on an evidentiary issue. And, under the residuum rule, many administrative judges will end up applying the hearsay rules to determine the propriety of administrative proceedings.

Before reading the recent terrific article, No Strict Rules of Evidence in Labor and Employment Arbitration, 15 Tex. Wesleyan L. Rev. 533 (2009), by Texas Wesleyan University School of Law Professor Michael Z. Green, I would have expected that the same held true in labor and employment arbitration proceedings. As the article makes clear, however, this has not been the case, and arbitrators need to change their ways.

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