EvidenceProf Blog

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

Saturday, January 2, 2010

Objection, Your Honor!: Supreme Court Of Rhode Island Opinion Demonstrates Importance Of Stating Correct Grounds For Objections

You've seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, "Objection, your Honor," and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, "Objection," in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.

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January 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, January 1, 2010

The (Un)Truth of the Matter: Court Of Appeals Of Texas Ostensibly Broadly Defines "Untruthful" Under Rule 608

Like its federal counterpartTexas Rule of Evidence 608(a) provides that:

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:

(1) the evidence may refer only to character for truthfulness or untruthfulness; and

(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

My question is: How broadly do we construe the words truthfulness and untruthfulness? Obviously, if defense counsel calls a witness to testify that, in his opinion, a witness for the prosecution is a liar, defense counsel has labeled the witness untruthful, opening the door for the prosecution to present evidence that the witness is truthful. But let's say that you have a child witness for the prosecution. And let's say that defense counsel tells the jury during opening statements that children generally have bad memories. Let's say that he tells them that children are subject to being coached. Let's say that he tells them that children fantasize about things that didn't happen. In that case, has defense counsel labeled the child witness untruthful, opening the door for he prosecution to present evidence that the witness is truthful? That was the issue facing the Court of Appeals of Texas, Texarkana, in its recent opinion in Alberts v. State, 2009 WL 4724362 (Tex.App.-Texarkana 2009).

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January 1, 2010 | Permalink | Comments (1) | TrackBack (0)

Thursday, December 31, 2009

What Are Your Intentions?: Seventh Circuit Finds Prior Drug Crimes Admissible To Prove Intent Under Rule 404(b) In New Year's Eve Related Case

Federal Rule of Evidence 404(b) provides that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

So, can the prosecution present evidence of a defendant's prior drug conviction(s) in a subsequent drug prosecution where intent is an element? That was the question faced by the Seventh Circuit in its recent opinion in United States v. Harris, 587 F.3d 861 (7th Cir. 2009). The court's answer? There is tension in its case law on the issue in general, but evidence of a defendant's prior drug conviction is always admissible in cases in which the defendant, while admitting possession of a drug, denies the intent to distribute it.

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December 31, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 30, 2009

Rejecting The Twinkie Defense: Court Of Appeals Of Utah Finds Expert Testimony On Intoxication Inadmissible To Establish Diminished Capacity

Probably the most famous trial where a defendant raised the defense of diminished capacity was the trial of Dan White for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. This defense is much maligned because most people think that White was able to convince the jury that he was merely guilty of voluntary manslaughter and not murder in the first degree by using the "Twinkie defense" to prove diminished capacity, i.e., that he should not have been held fully responsible for the killings because he was "suffering" from the sugar rush of eating a lot of Twinkies. But that's not actually what happened. Instead, as Michael R. Dreeben notes in The Right to Present a Twinkie Defense, 9 Green Bag 2d 347, 348 n.5 (2006),

The "Twinkie defense" owes its name to the 1979 trial of Dan White in San Francisco for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. In fact, White did not use a “junk food” defense, but instead argued diminished capacity because of his episodes of depression. White's allegedly poor diet played only a small part in his lawyers' attempt to explain his plunge into a depressed state that led him to snap. Nevertheless, the phrase "Twinkie defense" has entered the lexicon to describe a seemingly absurd defense strategy that somehow works. 

In its recent opinion in State v. Argumendo-Rodriguez, 2009 WL 4681285 (Utah. App. 2009), the Court of Appeals of Utah was presented with a quasi-Twinkie defense, but the court found the defense to be without merit.

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

Tuesday, December 29, 2009

As I Lay (Not Quite) Dying: Ohio Opinion Reveals Why Excited Utterance Exception Is Useful Backup To Dying Declaration Exception

Like its federal counterpartOhio Rule of Evidence 803(2) provides an exception to the rule against hearsay for:

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.  

Also like its federal counterpartOhio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay, in a prosecution for homicide of in a civil action or proceeding, for:

a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impeding death.  

The recent opinion of the Court of Appeals of Ohio, Seventh District, in State v. McGee, 2009 WL 4547716 (Ohio App. 7 Dist. 2009), underscores the fact that if you can't quite get a statement admitted as a dying declaration, you likely can get it admitted as an excited utterance.

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

Monday, December 28, 2009

Expert In Lay Witness Clothing: Louisiana Opinion Reveals Rule 704 Problem With Police Officers Testifying As Lay Witnesses

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As the Advisory Committee Note to the amendment to Rule 701 makes clear, Rule 701(c) was added in the wake of the Supreme Court's opinion in Daubert v. Merrdll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." I am equally worried now, however, that prosecutors are evading the requirements set forth in Federal Rule of Evidence 704 and state counterparts through the simple expedient of proffering an expert in lay witness clothing. A good example of this can be found in the recent opinion of the Court of Appeal of Louisiana, Fifth Circuit, in State v. Collins, 2009 WL 4640646 (La. App. 5 Cir. 2009).

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

Sunday, December 27, 2009

Unlimited: Court Of Appeals Of Texas Opinion Reveals That Most Hearsay Admitted Under An Exception Is Not Subject To A Limiting Instruction

Texas Rule of Evidence 105(a) provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.

As the recent opinion of the Court of Appeals of Texas, Houston, in Green v. State, 2009 WL 4575146 (Tex.App.-Houston [14 Dist.] 2009), makes clear, however, statements offered under an exception to the rule against hearsay are usually admissible for all purposes, meaning that they are not subject to limiting instructions.

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