Thursday, November 11, 2010
Not My Intention: Sixth Circuit Finds Testimony About Intent To Distribute Drugs Didn't Violate Rule 704(b)
Federal Rule of Evidence 704(b) provides that
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.
So, can a DEA agent testify that the amount of drugs found on a defendant is consistent with intent to distribute them without violating Rule 704(b)? According to the recent opinion of the Sixth Circuit in United States v. McCreary-Redd, 2010 WL 4244124 (6th Cir. 2010), the answer is "yes."
Wednesday, November 10, 2010
Color Me Surprised: Court Of Appeals Of Idaho Finds No Problem With Color Biased Photos Under Best Evidence Rule
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.
An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
So, let's say that in a case determining whether children should be placed in protecting custody, the prosecution seeks to present several photographs of injuries to the children produced from data downloaded from a camera to a computer system and printed out at the police station. And let's say that the parents presented testimony from an expert witness who testified that the colors of the prints were not "neutrally balanced" and reflected color biases toward red and yellow hues. Are these photographs "originals," or do they fail the test laid out in Rule 1001(3) because they do not reflect the data accurately? According to the recent opinion of the Court of Appeals of Idaho in Idaho Dept. of Health and Welfare v. Doe, 2010 WL 4342147 (Idaho App. 2010), these photographs are "originals," but I question the way that the court reached its conclusion.
Tuesday, November 9, 2010
Shut The Door: Court Of Criminal Appeals Of Alabama Finds Door Not Opened For Impeachment Via Misdemeanor Conviction
Alabama Rule of Evidence 609(a) provides that
For the purpose of attacking the credibility of a witness,
(1)(A) 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
(1)(B) 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; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
Under this Rule, then, it is clear that a party cannot impeach a witness through evidence that the witness has a prior misdemeanor conviction for a crime not involving dishonesty or false statement. But does a witness open the door for such impeachment by testifying that he only completed the Eleventh grade if the reason that he did not complete his high school education was the conviction? According to the recent opinion of the Court of Criminal Appeals of Alabama in Beemon v. State, 2010 WL 4380238 (Ala.Crim.App. 2010), the answer is "no."
Monday, November 8, 2010
I'm Incomplete: Second Circuit Finds Exculpatory Statement To Police Inadmissible Under Rule Of Completeness
Federal Rule of Evidence 106, the rule of completeness, provides that
When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
So, if the prosecution introduces part of a defendant's post-arrest statement that incriminates him, does fairness require the court to admit another part of the statement that (arguably) exonerates him? According to the recent opinion of the Second Circuit in United States v. Gonzalez, 2010 WL 4342192 (2nd Cir. 2010), the answer is "no," at least when the exculpatory portion of the statement neither explains nor is relevant to the admitted portion.
Sunday, November 7, 2010
False Accounting: Supreme Court Of Virginia Finds Brady Violation Based Upon Nondisclosed Material Impeachment Evidence
Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. And, as is clear from the recent opinion of the Supreme Court of Virginia in Bly v. Commonwealth, 2010 WL 4347936 (Va. 2010), when the prosecution fails to disclose impeachment evidence about the key witness for the prosecution, the defendant will be entitled to a new trial.
Saturday, November 6, 2010
The Weight Of The Evidence: Court Of Appeals Of Texas Deemes Pretrial Hearing Testimony Admissible Under Rule 804(b)(1)
In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.
So, does a criminal defendant have a motive to develop the testimony of a witness for the prosecution at a pretrial hearing determining the admissibility of hearsay statements that is similar to his motive to develop the testimony of the witness at trial? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Sanchez v. State, 2010 WL 4336169 (Tex.App.-San Antonio 2010), the answer is "yes." I disagree.
Friday, November 5, 2010
Not Like The Other: Court Of Appeals Of North Carolina Stretches To Find Prior Rape Evidence Admissible Under Rule 404(b)
Federal Rule of Evidence 413(a) provides that
In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
So, can the prosecution in a rape case present evidence of prior similar rapes to prove that the defendant has a common plan or scheme for committing rape? According to the recent opinion of the Court of Appeals of North Carolina in State v. Davis, 2010 WL 4292081 (N.C.App. 2010), the answer is "yes," at least based upon the case before the court.
Thursday, November 4, 2010
It's History: DDC Deems "Gangland" TV Episode From History Channel Inadmissible In Murder Prosecution On Rule 403 Grounds
A defendant is on trial for murder. That murder is the subject of an episode of the television show "Gangland" on the History Channel. The show intermingles photographs of the victim with footage of professional actors engaged in a purported reenactment of his death. The prosecution moves to introduce the videotape, and the defendant moves to exclude it on three grounds: (1) the videotaped reenactment is unfairly prejudicial and confusing and thus inadmissible under Federal Rule of Evidence 403; (2) the videotape consists of inadmissible hearsay offered to prove the truth of the matter asserted under Federal Rule of Evidence 801(c); and (3) admitting the videotape would deprive him of his rights under the Confrontation Clause because the actors in the videotape are in effect "witnesses" whom he will not be able to confront. How should the court rule? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Williams, 2010 WL 4071388 (D.D.C. 2010), the defendant's first argument has merit, meaning that it didn't have to address the other two arguments. I agree but would also add that the other two arguments appear meritorious as well.
Wednesday, November 3, 2010
Changing Its Colors: Court Of Appeals Of Mississippi Deems Carpet Color Change Inadmissible Under Rule 407
Federal Rule of Evidence 407 provides that
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. 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.
Thus, evidence of a subsequent remedial measure is inadmissible for some purposes but admissible for other purposes. It is important to keep in mind, though, that, as the rule indicates, a party can only use evidence of such a measure to prove feasibility of the measure (or ownership or control) if the other party has controverted feasibility (or ownership or control) as is made clear by the recent opinion of the Court of Appeals of Mississippi in Manning v. Gruich, 2010 WL 4188278 (Miss.App. 2010).
Tuesday, November 2, 2010
I Voted: Court Of Appeals Of Arkansas Finds Vote By Legislative Body Doesn't Constitute Settlement Negotiation Under Rule 408
Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, 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, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if 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.
Basically, Rule 408 deems inadmissible statements made during settlement negotiations. So, does the Rule apply to the vote of a legislative body to resolve a dispute? According to the recent opinion of the Court of Appeals of Arkansas in Weaver v. Collins, 2010 WL 4231468 (Ark.App. 2010), the answer is "no."
Monday, November 1, 2010
Legally Blind, Take 2: Court Of Appeals Of Maryland Agrees With Me, Reverses Murder Conviction In Legally Blind Witness Case
Back in January 2009, I posted an entry about the retrial of Tony Williams for murder. Williams was convicted after a first trial based in large part on the testimony of eyewitness for the prosecution Brenda O'Carroll, the victim's neighbor. That conviction, however, was reversed after it was determined that the prosecution failed to disclose material impeachment evidence in violation of Brady v. Maryland, such as evidence that O'Carroll was legally blind. O'Carroll died before Williams' retrial, and, at that retrial, the prosecution successfully introduced O'Carroll's testimony from the first trial under Maryland Rule of Evidence 5-804(b)(1), which provides an exception to the rule against hearsay for
Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
On appeal, Williams claimed that the admission of this former testimony was erroneous because the prosecution's failure to disclose that O'Carroll was legally blind meant that he was not given a full and fair opportunity to probe and expose the infirmities of O'Carroll's testimony as is required under Rule 5-804(b)(1). The Court of Special Appeals of Maryland disagreed, concluding that
another witness testified that it was "pitch dark" at the time of the murder, and O'Connell testified, inter alia, that she was taking "medicine," receiving radiation, and had had eleven operations. According to the court, this gave defense counsel a motive to question O'Carroll about her eyesight at the first trial, which he did not do.
In disagreeing with this conclusion, I posted:
So, I ask readers: Do you think that Williams had a full and fair opportunity to challenge O'Carroll's testimony based upon her eyesight at the first trial? Or did the prosecution's failure to disclose evidence of her legal blindness render that opportunity something less than full and fair? I would argue the latter, and, I think that the Court of Appeals of Maryland might agree with me upon appeal.
In its recent opinion in Williams v. State, 2010 WL 4231296 (Md. 2010), the Court of Appeals of Maryland did just that.