EvidenceProf Blog

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

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Monday, July 12, 2010

Georgia (Im)peach(ment): Supreme Court Of Georgia Rejects Due Process Challenge To Felony Impeachment Rule

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused (emphasis added).

Meanwhile, OGCA Section 24-9--84.1(a)(2) provides that

For the purpose of attacking the credibility of a witness, or of the defendant, if the defendant testifies:

(2) Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant (emphasis added).

And, as the recent opinion of the Supreme Court of Georgia in Childs v. State, 2010 WL 2680587 (Ga. 2010), makes clear, courts have found that both of these rules do not violate defendants' due process rights.

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

Sunday, July 11, 2010

It's Settled: Court Of Appeals Of Minnesota Finds Affidavit Seeking To Vacate Settlement Not Covered By Rule 408

Similar to its federal counterpart, Minnesota Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

And, as the recent opinion of the Court of Appeals of Minnesota in Engle v. Engle, 2010 WL 2650433 (Minn.App. 2010), makes clear, an affidavit seeking to vacate a settlement is not covered by Rule 408.

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

Saturday, July 10, 2010

No Prior Knowledge: Supreme Court Of Arizona Finds Rule 407 Applies Even If Party Lacks Knowledge Of Prior Event

Like its federal counterpart, Arizona Rule of Evidence 407 provides that

When, after an event, measures are taken, which if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But does the Rule apply even if the party took such measures without knowledge of, or for reasons unrelated to, a prior event? That was the question addressed by the recent opinion of the Supreme Court of Arizona in its recent opinion in Johnson v. State, Dept. of Transp., 2010 WL 2680379 (Ariz. 2010).

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

Friday, July 9, 2010

Grand Theft Auto: Court Of Appeals Of North Carolina Finds Car Pricing Guide Evidence Admissible Under Rule 803(17)

Back in 2008, I posted an entry about the United States Bankruptcy Court for the District of Maine finding that evidence from the Kelley Blue Book is admissible under Federal Rule of Evidence 803(17), which provides an exception to the rule against hearsay for

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

The recent opinion of the Court of Appeals of North Carolina in State v. Dallas, 2010 WL 2650394 (N.C.App. 2010), reveals that courts have reached the same conclusion with regard to evidence from the NADA pricing guide.

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

Thursday, July 8, 2010

Essential Reading: Supreme Court Of Iowa Implies That Victim's Violent Character Is Essential To Self-Defense Claim

Like its federal counterpart, Iowa Rule of Evidence 5.405(a) provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

That said, like its federal counterpartIowa Rule of Evidence 5.405(b) provides that

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct.

And under both Federal Rule of Evidence 404(a)(2) and Iowa Rule of Evidence 5.404(a)(2), a criminal defendant can present evidence of a pertinent character trait of the alleged victim. So, assume that a defendant is charged with domestic abuse assault and willful injury. And assume that the defendant claims self-defense. Is the alleged victim's character for violence an essential element of the defendant's defense, permitting him to prove the alleged victim's violence through specific instance evidence? According to the vast majority of courts, the answer is "no."  The recent opinion of the Supreme Court of Iowa in State v. Cashen, 2010 WL 2629827 (Iowa 2010), however, strongly implies that the answer is "yes."

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

Wednesday, July 7, 2010

This Is A Recording: Supreme Court Of Minnesota Answers Several Questions Regarding Admissibility Of Audio Recordings Under Rule 803(5)

Like its federal counterpart, Minnesota 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 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. 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. Stone, 2010 WL 2609430 (Minn. 2010), the Supreme Court of Minnesota answered two important questions regarding this recorded recollection rule and didn't have to answer a third.

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July 7, 2010 | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 6, 2010

Designated Hitter: Supreme Court Of North Dakota Deems Pre-Sequestration Designation The "Better Practice" Under Rule 615

Similar to its federal counterpart, North Dakota Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party's caused.

It is well established under both Federal Rule of Evidence 615 and state counterparts that the government's case agent can qualify as "an officer or employee of a party that is not a natural person designated as its representative by its attorney." But what if the government doesn't designate its case agent as its representative at the time that the defendant moves for sequestration? That was the question kind of answered by the Supreme Court of North Dakota in its recent opinion in State v. Wanner, 2010 WL 2598296 (N.D. 2010).

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

Monday, July 5, 2010

Real Life "Community": Judge Denies Mistrial After Juror's Abortionist Comment, Orders Defendant-Doc To Obtain GED

A doctor is charged with the murder of his ex-wife. His first trial ends when the jury deadlocked, with eleven members voting for acquittal and one for conviction. During voir dire of prospective jurors for the doctor's second murder trial, panel members are asked whether they could reach a decision based solely on the evidence. One juror responds, "Every man is entitled to a fair trial, but when [the doctor] left here he became an abortionist." Defense counsel moves for a mistrial, but the trial court denies the motion. The jury finds the doctor guilty of manslaughter, and the trial court sentences him to 20 years in prison and orders him to pay a $10,000 fine and obtain a GED. Did the trial court act correctly? This was the question faced by the Supreme Court of Mississippi in its recent opinion in DeHenre v. State, 2010 WL 2609458 (Miss. 2010), possibly the weirdest case I've ever seen.

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

Sunday, July 4, 2010

Balancing Act: Court Of Appeals Of Iowa Uses Incorrect Reasoning In Upholding Trial Court's Impeachment Ruling

Like its federal counterpart, Iowa Rule of Evidence 5.609(a)(1) provides that

For the purpose of attacking the credibility of a witness:

(1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

Meanwhile, like its federal counterpart, Iowa Rule of Evidence 5.403 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.

Based upon the interplay between these two rules, it is clear that the Court of Appeals of Iowa erred in its reasoning in its recent opinion in State v. Rose, 2010 WL 2598370 (Iowa.App. 2010), even though it might have reached the correct conclusion.

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

Saturday, July 3, 2010

Faith No More: Court Of Appeals Of Ohio Affirms Best Evidence Ruling Based On Lack Of Bad Faith By Police

Like its federal counterpart, Ohio Rule of Evidence 1002 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 enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.

But also like its federal counterpart, Ohio Rule of Evidence 1004(1), Ohio's Best Evidence Rule, provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.

And, as the recent opinion of the Court of Appeals of Ohio, Ninth District, in State v. Moultry, 2010 WL 2622449 (Ohio App. 9 Dist. 2010), makes clear, this latter rule explains why evidence is almost never excluded under the Best Evidence Rule.

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

Friday, July 2, 2010

Is There A Doctor In The Courtroom? D.C. Court Of Appeals Opinion Reveals That D.C. Courts Have Adopted Federal Rule Of Evidence 703

Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

While the District of Columbia does not have codified rules of evidence, the recent opinion in In re A.B., 2010 WL 2604668 (D.C. 2010), makes clear that the District of Columbia Court of Appeals has adopted this Rule in case law and that it permits a physician expert to rely on reports and opinions from nurses, technicians and other doctors in formulating her opinion.

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July 2, 2010 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 1, 2010

Book 'Em Danno!: Court Of Appeals Of Indiana Notes That Police Records Created In Connection With Routine Booking Procedures Are Admissible Under Rule 803(8)

Federal 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, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

Indiana Rule of Evidence 803(8) is somewhat different. It provides that

Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law [are admissible as an exception to the rule against hearsay. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

As the recent opinion of the Court of Appeals of Indiana in Fowler v. State, 2010 WL 2605034 (Ind.App. 2010), makes clear, however, Indiana courts look to federal case law and the law of other states concerning the meaning of 803(8), and the public records exception permits admission of police records created in connection with routine booking procedures.

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