EvidenceProf Blog

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

Monday, October 11, 2010

The Long Lead: Court Of Appeals Of Ohio Finds No Problem With Judge Asking Leading Questions To Prosecution's Expert Witness

Federal Rule of Evidence 614(b) provides that "The court may interrogate witnesses, whether called by itself or by a party." Meanwhile, Ohio Rule of Evidence 614(B) makes explicit what is implicit in its federal counterpart. It provides that "The court may interrogate witnesses, in an impartial manner, whether called by itself or by a party." (emphasis added). So, when does the court interrogate witnesses in a partial manner? Apparently not by asking leading questions to the prosecution's expert witness after her testimony has been attacked by defense counsel, at least according to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in its recent opinion in State v. Stout, 2010 WL 3836158 (Ohio App. 12 Dist. 2010).

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

Sunday, October 10, 2010

Little Bribes: Fifth Circuit Finds Bribery Is Per Se A Crime Of Dishonesty Or False Statement For Rule 609(a)(2) Purposes

Federal Rule of Evidence 609(a)(2) provides that

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

(2) 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.

Moreover, the Advisory Committee's Note to Rule 609 provides that crimes of dishonesty or false statement include

crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

So, what about a conviction for bribery? According to the Fifth Circuit's opinion in United States v. Jefferson, 2010 WL 895040 (5th Cir. 2010), such a conviction also qualifies for admission under Rule 609(a)(2). I'm not sure that I agree. 

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

Saturday, October 9, 2010

Ten Years Have Got Behind You: Court Of Appeals Of Ohio Admits 14 Year-Old Assault Conviction Under Rule 609(B)

Like its federal counterpart, Ohio Rule of Evidence 609(B) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Moreover, the Advisory Committee's Note to Federal Rule of Evidence 609 provides that

Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.

In its recent opinion in State v. Jones, 2010 WL 3839437 (Ohio App. 3 Dist. 2010), The Court of Appeals of Ohio, Third District, found that the prosecution properly impeached the defendant with his prior conviction that was more than ten years old. I disagree.

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

Friday, October 8, 2010

Striking Out: Minnesota Court Permits Jury Impeachment Regarding Whether Jurors Considered Stricken Testimony

Like its federal counterpart, Minnesota 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, except that a juror may testify on the question 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, or as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

A witness testifies at trial, and the trial court later strikes that testimony. Defense counsel then moves for a mistrial, and the trial court denies the motion but issues a curative instruction instructing the jury to disregard the stricken testimony. The defendant thereafter moves for a mistrial. Should the State be able to introduce an affidavit by the jury foreperson stating that the jury honored the curative instruction? According to the recent opinion of the Court of Appeals of Minnesota in State v. Paquin, 2010 WL 3853342 (Minn.App. 2010), the answer is "yes," despite Rule 606(b). I disagree. 

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

Thursday, October 7, 2010

In Conclusion: Ninth Circuit Finds Public Records Exception Doesn't Cover Legal Conclusions

Federal Rule of Evidence 803(8)(C) 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...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

In its opinion in Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), the Supreme Court found that Rule 803(8)(C) covers not only factual findings but also factually based conclusions and opinions contained in public reports. But does the Rule also cover legal opinions in such reports? That was the question addressed by the recent opinion of the Ninth Circuit in Sullivan v. Dollar Tree Stores, Inc., 2010 WL 3733576 (9th Cir. 2010).

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

Wednesday, October 6, 2010

Oh, God!: Court Of Appeals Of Texas Precludes Jury Impeachment Regarding Juror Saying God Sent Jury To Make A Decision

A defendant is on trial for three counts of aggravated sexual assault of a child and one count of indecency with a child by sexual contact. After deliberating for less than a day, the jury sends the judge a note stating that the jury is "hung." Without objection from either side, the judge instructs the jury to "please continue with your deliberations." And the jury does indeed continue to deliberate...for a few minutes, before coming back with a verdict. In those few minutes, a female juror tells the foreperson that God sent the jury to make a decision and that it was the jury's duty to do so; thereafter, the jury compromises, finding the defendant guilty on two counts and not guilty on two counts. After he is convicted, should the defendant be able to present evidence of what transpired in those few minutes? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Orozco v. State, 2010 WL 3782198 (Tex.App.-San Antonio 2010), the answer is "no."

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

Tuesday, October 5, 2010

Return To Sender: Ninth Circuit Finds Western Union Check Payable To Defendant Qualified As Co-Conspirator Admission

Federal 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...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Sometimes a co-conspirator admission under this Rule looks like a classic co-conspirator admission. For example, if Carl tells Fred, "Dan and I are going to rob a bank tomorrow, will you drive the getaway car?" the statement looks like a classic co-conspirator admission. Other times, a co-conspirator admission doesn't look like a classic co-conspirator admission but is still admissible under the Rule. For example, in its recent opinion in United States v. Webster, 2010 WL 3784829 (9th Cir. 2010), the Ninth Circuit found that a Western Union check payable to the defendant qualified as a co-conspirator admission.

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

Monday, October 4, 2010

Sympathy For The Devil?: Court Of Criminal Appeals Of Texas Finds Evidence Of Defendant's Conversion To Satanism Admissible To Prove Future Dangerousness

A defendant has been convicted of murdering a victim in the course of committing or attempting to commit aggravated sexual assault. The prosecution is now trying to get the jury to sentence the defendant to death, and, in an attempt to prove his future dangerousness, it seeks to present evidence that the defendant is a Satanist. How should the court rule? According to the recent opinion of the Court of Criminal Appeals of Texas in Davis v. State, 2010 WL 3782212 (Tex.Crim.App. 2010), such evidence is admissible. I disagree.

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

Sunday, October 3, 2010

Sequestered In Memphis: Court Of Criminal Appeals Of Tennessee Sets Forth Rules For Expert/Designated Representative Sequestration

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

At the request of a party the court shall order witnesses, including rebuttal witnesses, excluded at trial or other adjudicatory hearing. In the court's discretion, the requested sequestration may be effective before voir dire, but in any event shall be effective before opening statements. The court shall order all persons not to disclose by any means to excluded witnesses any live trial testimony or exhibits created in the courtroom by a witness. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) a person designated by counsel for a party that is not a natural person, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause. This rule does not forbid testimony of a witness called at the rebuttal stage of a hearing if, in the court's discretion, counsel is genuinely surprised and demonstrates a need for rebuttal testimony from an unsequestered witness. 

In its recent opinion in State v. Fowler, 2010 WL 3774413 (Tenn.Crim.App. 2010), the Court of Criminal Appeals of Tennessee noted that one set of rules applies to expert witnesses, another set of rules applies to designated representatives, and still another set of rules applies to witnesses who are both expert witnesses and designated representatives.

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

Saturday, October 2, 2010

Liar, Liar: Supreme Court Of Delaware Finds Witness With Prior Convictions For Crimes Of Dishonesty Was Properly Allowed To Testify

A defendant is on trial for one count each of second degree assault and possession of a deadly weapon during the commission of a felony. A potential witness for the prosecution has several prior convictions for crimes of dishonesty or false statement. Should that witness be allowed to testify against the defendant. As the recent opinion of the Supreme Court of Delaware in Branch v. State, 2010 WL 3756812 (Del.Supr. 2010), makes clear, the answer is "yes." In days past, however, this wasn't always the case.

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

Friday, October 1, 2010

Superman Didn't Become Superman: Tennessee Court Finds Evidence That Defendant Bought And Wore Superman Shirt Admissible

A defendant is charged with facilitation of first degree murder and the defendant claims as part of his defense that he was "surprised" and "scared" after the subject shooting. If the defendant brags to his friends about the shooting, it is indisputable that the defendant's words could be used against him to rebut his defense and prove his intent. But what about if the defendant purchased and wore a Superman shirt after the shooting. Should such evidence be similarly admissible? I don't think so. In its recent opinion in State c. Garcia, 2010 WL 3766942 (Tenn.Crim.App. 2010), the Court of Criminal Appeals of Tennessee disagreed.

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