EvidenceProf Blog

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

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Thursday, June 10, 2010

Intelligence Quotient: Supreme Court Of Wyoming Denies Plaintiff New Trial Despite Allegations Of Quotient Verdict

Similar to its federal counterpart, Wyoming Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

As I have noted before, jurors are not allowed to enter a "quotient verdict," which is

an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award.

That said, can jurors impeach their verdict through testimony that it was a quotient verdict? And can there be a quotient verdict if jurors do not agree beforehand to be bound by the result reached? These were the questions addressed by the Supreme Court of Wyoming in its recent opinion in Lake v. D & L Langley Trucking, Inc., 2010 WL 2292910 (Wyo. 2010).

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

Wednesday, June 9, 2010

Rescue 911: Court Of Appeals Of Indiana Finds Caller's Testimony Sufficient To Authenticate 911 Recording

Like its federal counterpart, Indiana Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, let's say that a declarant calls 911 after witnessing an alleged battery. A defendant is now on trial facing charges of battery, and the prosecution wants to admit the 911 recording into evidence. Who must authenticate the recording? The declarant? Someone from 911 or the police department? Both? According to the recent opinion of the Court of Appeals of Indiana in Ulshafer v. State, 2010 WL 2224618 (Ind.App. 2010), just the testimony of the declarant is sufficient.

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

Tuesday, June 8, 2010

No M.O.: Court Of Appeals Of Minnesota Finds Trial Court Properly Excluded Victim's Sexual History Under Rape Shield Rule

Minnesota Rule of Evidence 412(1)(A)(i) provides that

(1) In a prosecution for acts of criminal sexual conduct, including attempts or any act of criminal sexual predatory conduct, evidence of the victim's previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury, except by court order under the procedure provided in rule 412. Such evidence can be admissible only if the probative value of the evidence is not substantially outweighed by its inflammatory or prejudicial nature and only in the following circumstance[]:
(A) When consent of the victim is a defense in the case,
(i) evidence of the victim's previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue, relevant and material to the issue of consent

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Koloski, 2010 WL 2265583 (Minn.App. 2010), it is difficult to establish such a common plan or scheme through only a single incident of prior sexual conduct.

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

Monday, June 7, 2010

Continuation Rule: Supreme Court Of Georgia Finds Admission Of Eyewitness ID Forms Doesn't Violate Continuing Witness Rule

Apparently, Georgia has an objection which is known as the continuing witness objection:

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once....The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations. Davis v. State, 676 S.E.2d 215, 219 (Ga. 2009).

According to the recent opinion of the Supreme Court of Georgia in Dockery v. State, 2010 WL 2243249 (Ga. 2010), however, eyewitness identification forms are not subject to the rule. Although I don't know much about the continuing witness objection, I find this odd.

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

Sunday, June 6, 2010

In Bad Company: Western District Of Michigan Finds Employee Admissions Sufficient To Defeat Summary Judgment Motion In Age Discrimination Case

Federal Rule of Evidence 801(d)(2)(D) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

And, as the recent opinion of the United States District Court for the Western District of Michigan in Johnson v. United Rentals, Inc., 2010 WL 1981295 (W.D. Mich. 2010), makes clear, this Rule can be extremely useful to plaintiffs bringing discrimination actions against their employers.

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June 6, 2010 | Permalink | Comments (1) | TrackBack (0)

Saturday, June 5, 2010

Travel Plans: Eleventh Circuit Precludes Jury Impeachment Regarding Foreman With Flight On 4th Day Of Delierations Pressuring Jury To Hurry

Federal Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

So, let's say that a defendant is charged with money laundering and several drug crimes. Based upon the number of charges and the amount of evidence, the trial is fairly long: twenty days. These twenty days of trial are then followed by four days of deliberations, with the jury eventually finding the defendant guilty of all charges. After trial, however, an alternate juror contacts defense counsel and informs him that the jury foreman booked a flight to Las Vegas on what turned out to be the fourth day of deliberations and pressured the jury to hurry its deliberations. Should the defendant get a new trial, or should the court at least investigate these allegations of juror misconduct? According to the recent opinion of the Eleventh Circuit in United States v. Valencia-Trujillo, 2010 WL 2163105 (11th Cir. 2010), the answer is "no."

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

Friday, June 4, 2010

Truth And Consequences: Fourth Circuit Rejects Confrontation Clause Appeal Based Upon Absence Of Hearsay

Pursuant to the Supreme Court's opinion in Crawford v. Washington,

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.  The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.

As noted above, though, the defendant only has a right to confront the maker of a statement when that statement is indeed hearsay. Thus, when the prosecution introduces a statement, but does not introduce it to prove the truth of the matter asserted in the statement, the Confrontation Clause does not apply, a fatal problem for the defendant in United States v. Hines, 2010 WL 2123695 (4th Cir. 2010).

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

Thursday, June 3, 2010

It's My Space, That's Why They Call It MySpace, Take 5: Maryland Court Applies Rule 901(b)(4) To Resolve MySpace Authentication Issue

A defendant is charged with second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. At the defendant's first trial, a witness testifies that he did not see the defendant pursue the victim into the bathroom (where he died) with a gun. The first trial ends in a mistrial, and, at a second trial, the witness changes his testimony and testifies that the defendant was the only person in the bathroom, other than the victim, when the fatal shots were fired. The witness claims that he fabricated his testimony at the first trial because the defendant's girlfriend threatened him. To corroborate this claim, the prosecution introduces into evidence a redacted printout obtained from a MySpace profile page allegedly belonging to the defendant's girlfriend, which said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant is thereafter convicted. Was that page properly admitted, and how can parties generally authenticate MySpace pages and comments as belonging to a particular person? Those were the questions addressed by the Court of Special Appeals of Maryland in its recent opinion in Griffin v. State, 2010 WL 2105801 (Md.App. 2010).

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

Wednesday, June 2, 2010

Make It A Habit: Supreme Court Of Nevada Finds Evidence of Doctor's Routine Properly Admitted As Habit Evidence

Like Federal Rule of Evidence 406, NRS 48.059(1) provides that

Evidence of the habit of a person or the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Pursuant to Federal Rule of Evidence 406 and many state counterparts, courts in many jurisdictions have allowed evidence of a medical practitioner's routine practice as evidence relevant to what the practitioner did on a particular occasion. And that is exactly what the Supreme Court of Nevada did in Thomas v. Hardwick, 2010 WL 2145367 (Nev. 2010).

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

Tuesday, June 1, 2010

Frustrated Incorporated: Court Of Criminal Appeals Of Alabama Reverses Robery Conviction Based On Improperly Admitted Coconspirator Admission

Like its federal counterpart, Alabama 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....(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Because coconspirator admission rule only applies to statements made during the course and in furtherance of a conspiracy, it is well established that confessions made by one coconspirator after he has been apprehended are not admissible under the rule because they are in frustration of a conspiracy. This was an issue, however, that was not recognized by the trial court in the prosecution of Devane Hillard, which led to the opinion of the Court of Criminal Appeals of Alabama in Hillard v. State, 2010 WL 2148535 (Ala.Crim.App. 2010).

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