EvidenceProf Blog

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

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Thursday, January 14, 2010

As I Lay Dying: Court Of Appeals Of Michigan Finds Dying Declarant Had Personal Knowledge Based Upon Details Of Shooting

Like its federal counterpartMichigan Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death  

This dying declaration exception also requires that the declarant be "unavailable" at trial, which usually isn't a problem because the declarant of a dying declaration almost always dies. There is, however, another requirement for the admission of a dying declaration, and it is a requirement that applies to almost all hearsay: The declarant must have personal knowledge under Rule 602

This is something that I find students often miss in Evidence class. I give them a fact pattern where an EMT comes upon Vince, who has been shot in the back of the head. The EMT tells Vince that he only has a few minutes left, and Vince tells the EMT, "Dan shot me!" The EMT asks Vince how he knows, and he responds, "I just know." The problem that many students fail to recognize is that a prosecutor trying to introduce Vince's statement as a dying declaration likely could not establish that Vince had personal knowledge of his shooter; instead, it looks as if he is making a guess about his shooter's identity. As the recent opinion of the Court of Appeals of Michigan in People v. Holbrook, 2010 WL 99010 (Mich.App. 2010), makes clear, however, the circumstances are quite different when the victim is shot seven times, mostly in the front of his body.

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January 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 13, 2010

Don't You Be Intimidated: Supreme Court Of New Hampshire Fails To Find Witness Intimidation Is Per Se A Crime Of Dishonesty Or False Statement Under Rule 609(a)(2)

Like its federal counterpartNew Hampshire Rule of Evidence 609(a)(2) provides that 

For the purpose of attacking the character for truthfulness of a witness...evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

A defendant is charged with four counts of the sale of a narcotic drug. Those drugs were sold to an individual cooperating with the government who later testified against the defendant at trial. The defendant thereafter sought to impeach the cooperating witness with evidence of his prior conviction for witness intimidation. Should the trial court have admitted this impeachment evidence under New Hampshire Rule of Evidence 609(a)(2)? That was the question faced by the Supreme Court of New Hampshire in its recent opinion in State v. Brown, 2009 WL 5150345 (N.H. 2009).

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January 13, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 12, 2010

Chicken Little Or Canary In The Coal Mine?, Take 4: Supreme Court Hears Oral Argument In Briscoe v. Virginia

Here is the transcript of yesterday's oral argument in Briscoe v. Virginia, the potentially landmark Confrontation Clause case that I have previously blogged about (here). I am in the process of finishing my exam grading for the fall semester, so I don't have time to address the oral argument now in much detail, but I should have some posts on the oral argument next week.

-CM

January 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Is It Your Recollection?: Court Of Appeals Of Texas Allows Officer To Establish Accuracy Of Recorded Recollection

Like its federal counterpartTexas Rule of Evidence 803(5) provides an exception to the rule againsy hearsay for

A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document's trustworthiness. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Rule 803(5) is a Rule 803 hearsay exception, meaning that such a "recorded recollection" can be admitted regardless of whether the declarant is available to testify at trial. When the declarant is available to testify at trial, he can establish that the recorded recollection reflected his knowledge correctly by providing testimony to that effect. But if the declarant is "unavailable" at trial, how can the proponent of a recorded recollection establish such accuracy? That was the question faced by the Court of Appeals of Texas, Waco, in its recent opinion in In re. J.W., 2009 WL 5155784 (Tex.App.-Waco 2009).

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January 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, January 11, 2010

Submission Guide for Online Law Review Supplements, Version 3.0 (1/11/2010), Now Available On SSRN

Today, I posted my Submission Guide for Online Law Review Supplements, Version 3.0 (1/11/2010) on SSRN. Version 3.0 has entries for two new journals: (1) Arguendo, the online supplement to The George Washington Law Review, and MISSing Sources, the online supplement to the Mississippi Law Journal. A few years ago, there were only a few of these supplements, and it was uncertain how much of an impact that they would have on legal scholarship. Now, however, by my count, 14 of the top 28 schools in the U.S. News law school rankings have online law review supplements.

-CM

January 11, 2010 | Permalink | Comments (1) | TrackBack (0)

Sunday, January 10, 2010

Better Evidence Or Best Evidence?: Supreme Court Of Rhode Island Engages In Detailed Analysis Of Best Evidence Rule

Like its federal counterpart, Rhode Island Rule of Evidence 1002, its Best Evidence Rule, provides that:

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

However, also like its federal counterpart, Rhode Island Rule of Evidence 1003 provides that:

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

So, under what circumstances would it be unfair to admit a duplicate in lieu of the original? And what is the proponent to do if he is trying to introduce a duplicate under such circumstances? The answer can be found in the recent opinion of the Supreme Court of Rhode Island in State v. Grullon, 2009 WL 4722264 (R.I. 2009).

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January 10, 2010 | Permalink | Comments (1) | TrackBack (0)

Saturday, January 9, 2010

F For Effort: Court Of Appeals Of Ohio Finds Opponent's Efforts Can't Be Imputed To Proponent For Rule 804(A)(5) Purposes

Like its federal counterpartOhio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true.

As under the Federal Rules of Evidence, however, a prerequisite for the admission of such a statement against interest is a finding of declarant unavailability, with Ohio Rule of Evidence 804(A)(5) providing that a declarant is unavailable if he

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's attendance or testimony) by process or other reasonable means.  

As both the language of the rule and the recent opinion of the Court of Appeals of Ohio, Fourth District, in State v. Hiles, 2009 WL 4827654 (Ohio App. 4 Dist. 2009), make clear, it is the proponent's efforts to procure the declarant's attendance that must be reasonable; the proponent cannot have the opponent's attempts imputed to him.

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January 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, January 8, 2010

Draggin' The Line: Court Of Appeals Of Maryland Strains To Find Sergeant's Testimony Did Not Cross Rule 704(b) Line

Like its federal counterpartMaryland Rule of Evidence 5-704(b) states that

An expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may not state an opinion or inference as to whether the defendant had a mental state or condition constituting an element of the crime charged. That issue is for the trier of fact alone. This exception does not apply to an ultimate issue of criminal responsibility.   

In its recent opinion in Gauvin v. State, 2009 WL 4877695 (Md. 2009), the Court of Appeals of Maryland found that it had to address the issue of whether an appellant is entitled to a new trial if the trial court erroneously overruled his objection to a question that called for an answer prohibited by Maryland Rule of Evidence 5-704(b) if the testimony presented after the erroneous ruling did not violate the Rule. I agree with the court that such an appellant is not entitled to a new trial but disagree with the court's conclusion that the answer at issue was consistent with the Rule.

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January 8, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 7, 2010

Girl From The Pawn Shop: Court Of Appeals Finds Pawn Shop Database Printout Admissible Under Rule 803(15)

Like its federal counterpart, Texas Rule of Evidence 803(15) provides an exception to the rule against hearsay for

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

Federal Rule of Evidence 803(15) and state counterparts are rarely used. I did a Westlaw of 803(15) in ALLFEDS and ALLSTATES and came up with only 26 results in the former database and only 36 in the latter. Moreover, in some of the retrieved opinions, the rule was merely mentioned in passing and not actually applied. I haven't previously written about this rule on this blog, so when I came across an opinion applying it -- the recent opinion of the Court of Appeals of Texas, El Paso in Gomez v. State, 2009 WL 4831117 (Tex.App.-El Paso 2009).

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January 7, 2010 | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 6, 2010

The Price Of Admission: Court Of Appeals Of Iowa's Best Evidence Ruling Depends Upon Rule 1007 But Doesn't Cite It

Like its federal counterpartIowa Rule of Evidence 5.1002, Iowa's Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, an original is required, except as otherwise provided in these rules or by statute.  

Also like its federal counterpartIowa Rule of Evidence 5.1007 provides that

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party‚Äôs written admission, without accounting for the nonproduction of the original.  

While the Court of Appeals of Iowa did not mention Rule 5-1007 in its recent opinion in Koncel v. State, 2009 WL 4842502 (Iowa App. 2009), I think that the Rule was essential to the court's decision.

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January 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 5, 2010

Double Your Hearsay: Court Of Appeals Of Texas Uses Incorrect Reasoning To Reach Correct Conclusion That Police Report Was Properly Excluded

Texas Rule of Evidence 803(8) provides an exception to the rule against hearsay for 

Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:

(A) the activities of the office or agency;

(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or

(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;

unless the sources of information or other circumstances indicate lac of trustworthiness.

As the Rule makes clear, police reports are inadmissible if offered by the prosecution against criminal defendants, but they are admissible if offered by criminal defendants against the prosecution. Nonetheless, in its recent opinion in Weiss v. State, 2009 WL 4757379 (Tex.App.-Fort Worth 2009), the Court of Appeals of Texas found that the trial court did not err in precluding a defendant from admitting a police report against the prosecution. I agree with the court's conclusion but disagree with its reasoning.

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January 5, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, January 4, 2010

Bless Me Father: Court Of Appeals Of Mississippi Seemingly Errs In Finding Priest-Penitent Privilege Applied To Conversation In Church Hallway

Mississippi Rule of Evidence 505(b), Mississippi's priest-penitent privilege, indicates that

A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor.

As the language of the Rule makes clear, there are two requirements for invocation of the privilege: (1) the subject communication must have been confidential, and (2) the subject communication must have been made to a clergyperson in his professional character as spiritual advisor. In its recent opinion in Williams v. State, 2009 WL 4808181 (Miss.App. 2009), the Court of Appeals of Mississippi seemingly confused these two requirements.

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January 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 3, 2010

Family Doctor: Supreme Court Of North Dakota Finds That Rule 803(4) Covers 3rd Party Statements To Medical Services Providers

Like its federal counterpartNorth Dakota Rule of Evidence 803(4) provides an exception to the rule against hearsay for: 

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Courts generally have reached two important conclusions with regard to Rule 803(4). First, most courts have found that statements identifying the general source of an injury or illness are admissible (e.g., "I was pushed down.") but statements identifying the person causing the injury or illness are inadmissible (e.g., "I was pushed down by Dan."), with a few key exceptions. Second, most courts have found that a statement does not have to come from the (prospective) patient himself (or be made directly to a medical services provider) to be admissible under Rule 803(4). The recent opinion of the Supreme Court of North Dakota in State v. Grant, 2009 WL 4800552 (N.D. 2009), reveals that North Dakota courts are in line with the majority of courts on the first conclusion and brings North Dakota courts in line with the majority of courts on the second conclusion.

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January 3, 2010 | Permalink | Comments (1) | TrackBack (0)

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)