EvidenceProf Blog

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

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Tuesday, May 11, 2010

Empty Threats?: Court Of Appeals of Minnesota Finds No Error In Admission Of Threats By Defendant Against Informant

Like its federal counterpart, Minnesota Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

So, if a defendant threatens a prospective witness against him but does not actually attack the witness, are his threats against the prospective witness sufficiently probative to pass this Rule 403 balancing test? According to the recent opinion of the Court of Appeals of Minnesota in State v. Anderson, 2010 WL 1850206 (Minn.App. 2010), the answer is "yes" because it is evidence of consciousness of guilt.

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May 11, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, May 10, 2010

Broken Record: Supreme Court Of Tennessee Finds Statement Improperly Admitted As Exhibit Under Recorded Recollection Rule

Like its federal counterpart, Tennessee Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had 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's memory and to reflect that knowledge correctly. 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.

In its recent opinion in State v. Hatcher, 2010 WL 1780049 (Tenn. 2010), the Supreme Court of Tennessee found that the trial court erred in allowing the prosecution to admit an alleged recorded recollection as an exhibit under Tennessee Rule of Evidence 803(5). It should have simply found that the statement did not qualify as a recorded recollection.

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May 10, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 9, 2010

Forfeited Opportunity: Supreme Court Of Minnesota Fails To Rule On Sole Intent Theory Of Forfeiture By Wrongdoing

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.

This Rule, however, is merely a recent evidentiary creation, and there was a separate founding-era forfeiture by wrongdoing doctrine. In Giles v. California, the Supreme Court of California had held that this founding-era version of the doctrine applied when a party procured the unavailability of a witness, regardless of whether the party intended such a result, but the Supreme Court of United States reversed, finding that such a specific intent is required. Thus, both the federal rule (and states counterparts) and the founding-era exception now require specific intent to render a witness unavailable at trial.

But must that be the sole intent? For instance, assume that Defendant robs a bank, and Prospective Witness goes to the cops and turns Defendant in, resulting in Defendant being charged with robbery. Defendant then kills Prospective Witness. Obviously, it can be inferred that Defendant killed Prospective Witness in part to prevent him from testifying at trial, but it can also be inferred that Defendant killed Prospective Witness in part as revenge for his betrayal. It seems obvious to me that sole intent is not required for application of the forfeiture by wrongdoing doctrine, but the Supreme Court of Minnesota was not yet ready to take that leap in its recent opinion in State v. Her, 2010 WL 1791154 (Minn. 2010).

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

Saturday, May 8, 2010

Conspiracy Theory: Eleventh Circuit Finds No Confrontation Clause Problem With Co-Conspirator Admission Made To Confidential Informant

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause. Thus, in its recent opinion in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit was able to find a statement admissible without regard for the Confrontation Clause because co-conspirator admissions are nontestimonial, even if they are made to confidential informants.

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

Friday, May 7, 2010

D.C. Follies?: D.C. Court Of Appeals Seems To Find That D.C. Courts Don't Apply Federal Rule Of Evidence 704(b)

Federal Rule of Evidence 704 indicates that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone

While D.C. doesn't has codified rules of evidence, D.C. courts clearly apply Federal Rule of Evidence 704(a) in their opinions. Before the recent opinion of the District of Columbia Court of Appeals in Gaines v. United States, 2010 WL 1806662 (D.C. 2010), it appeared that the same held for Federal Rule of Evidence 704(b), but now I'm not so sure.

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May 7, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 6, 2010

Safety In Numbers: Eighth Circuit Finds Best Evidence Rule Not Triggered By Inscription On Safe

Federal Rule of Evidence 1002, the 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 Act of Congress.

In United States v. Buchanan, 2010 WL 1753346 (8th Cir. 2010), law enforcement officers testified regarding an inscription inside a safe but did not produce the safe at trial. According to the defendant, the admission of their testimony violated the Best Evidence Rule; however, the Eighth Circuit responded that courts do not have to apply the rule to chattels. I'm not sure that I agree with the court's reasoning.

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

Wednesday, May 5, 2010

Looking For A Confrontation: Tenth Circuit Reverses District Court's Outdated Confrontation Clause Ruling

A criminal defendant has the right to be confronted with the witnesses against him under the Confrontation Clause of the Sixth Amendment. Thus, even if a hearsay statement made by an unavailable declarant qualifies for admission under an exception to the rule against hearsay, it still must be excluded if its admission would violate the defendant's right to confrontation. For years, the Supreme Court's opinion in Ohio v. Roberts, 448 U.S. 56 (1980), ruled the Confrontation Clause roost. Under Roberts, one of the key questions was whether the applicable hearsay exception was "firmly rooted." In essence, if it was, there was no Confrontation Clause problem; if it was not, there was a Confrontation Clause problem. That all changed, however, with the Supreme Court's 2004 opinion in Crawford v. Washington, 541 U.S. 36 (2004). In its recent opinion in United States v. Smalls, 2010 WL 1745123 (10th Cir. 2010), the Tenth Circuit finally took notice.

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May 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 4, 2010

The Character Of The Matter: Supreme Court Of Iowa Finds Sexual Abuse Character Evidence Rule Violates Due Process

Similar to Federal Rule of Evidence 413, Iowa Code Section 701.11 provides in relevant part that

In a criminal prosecution in which a defendant has been charged with sexual abuse, evidence of the defendant's commission of another sexual abuse is admissible and may be considered for its bearing on any matter for which the evidence is relevant. This evidence, though relevant, may be excluded if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. This evidence is not admissible unless the state presents clear proof of the commission of the prior act of sexual abuse.

The vast majority of courts that have considered Due Process challenges to Federal Rule of Evidence 413 and state counterparts have found that these rules withstand constitutional scrutiny. After its recent opinion in State v. Cox, 2010 WL 1727654 (Iowa 2010), we can now place the Supreme Court of Iowa in the minority column.

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

Monday, May 3, 2010

Article Of Interest: Susan Haack's Irreconcilable Differences? The Troubled Marriage of Science and the Law

One of the biggest problems that filmmakers face is the problem of exposition. How does the filmmaker convey the necessary backstory to the audience organically and seamlessly? Regrettably, the filmmaker usually relies upon a clunky conversation between a few of the principals or the classic storytelling crutch of someone new to a situation being told all of the details by a veteran. In Charles Shyer's 1984 movie, "Irreconcilable Differences," i.e., the movie where Drew Barrymore divorces her parents, the filmmakers avoid this problem with a neat trick: The backstory unfurls as the characters testify during the divorce trial. If only there were such a quick fix for the problems between science and the law.

Those problems are the subject of an excellent recent article of the same name by Susan Haack of the University of Miami School of Law: Irreconcilable Differences? The Troubled Marriage of Science and the Law

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May 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 2, 2010

Forfeit Loss: Supreme Court Of Utah Adopts Preponderance Of The Evidence Standard For Forfeiture By Wrongdoing Doctrine

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) 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.

Utah does not have a codified state counterpart to this federal rule, but it does similarly recognize the doctrine of forfeiture by wrongdoing. Before its recent opinion in State v. Poole, 2010 WL 1727819 (Utah 2010), however, the Supreme Court of Utah had not yet resolved the issue of what burden of proof the state must meet to show that a defendant has forfeited the right to confrontation through misconduct. Now, it has.

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

Saturday, May 1, 2010

Is It Your Recollection?: California Appellate Court Deems Improper Admission Of Recorded Recollection Harmless Error

Like Federal Rule of Evidence 803(5)California Evidence Code Section 1237 provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

As the above language makes, clear "recorded recollections" are only admissible if the "witness has insufficient present recollection to enable him to testify fully and accurately. But, as the recent opinion of the Court of Appeal, Second District, Division 1, California, in People v. Juarez, 2010 WL 1645814 (Cal.App. 2 Dist. 2010), makes clear, when a trial court allows for the admission of a recorded recollection despite the witness having sufficient present recollection, an appellate court will inevitably find harmless error.

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