EvidenceProf Blog

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

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Saturday, December 11, 2010

Maintaining Consistency: 3rd Circuit Allows For Impeachment Through Simple Assault Conviction

Federal Rule of Evidence 609(a) 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; and

(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.

In other words, evidence of a witness' prior conviction is only admissible to impeach him if the conviction is a felony conviction or a conviction for a crime of dishonesty or false statement. As the recent opinion of the Third Circuit in United States v. Castro, 2010 WL 4948946 (3rd Cir. 2010), makes clear, however, this limitation does not apply if the witness claims that he doesn't have a criminal past. 

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

Friday, December 10, 2010

Adopted Logic: D.C. Court Of Appeals Finds Adoptive Admissions Can't Violate Confrontation Clause

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 United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit found a co-conspirator admission admissible without regard for the Confrontation Clause because co-conspirator admissions are deemed nontestimonial, even if they are made to confidential informants. In its recent opinion in Wilson v. United States, 2010 WL 1790365 (D.C. 2010), the District of Columbia Court of Appeals found the same with regard to adoptive admissions, even if they are made by someone working with the government and wearing a wire.

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

Thursday, December 9, 2010

Lied And Prejudice: Eighth Circuit Finds Proposed Rule 608(b) Evidence Failed Rule 403 Balancing Test

Federal Rule of Evidence 608(b) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

As the recent opinion of the Eighth Circuit in United States v. Alston, 2010 WL 4923288 (8th Cir. 2010), makes clear, however, it is important to note that cross-examination under Rule 608(b) is still subject to the balancing test set forth in Federal Rule of Evidence 403, which 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.

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

Wednesday, December 8, 2010

Structural Wound: First Circuit Implies Improper Jury Instructions Can Form Proper Predicate For Jury Impeachment

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.

Based upon this language, I don't understand an important part of the recent opinion of the First Circuit in United States v. Jadlowe, 2010 WL 4910239 (1st Cir. 2010).

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December 8, 2010 | Permalink | Comments (1) | TrackBack (0)

Tuesday, December 7, 2010

Mississippi Confidential: Supreme Court Of Mississippi Discusses Two Marital Privileges In Manslaughter Appeal

Mississippi Rule of Evidence 504(b) provides that

In any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse.

Meanwhile, Mississippi Rule of Evidence 601(a) provides that

In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both, except as provided in Rule 601(a)(1) or Rule 601(a)(2)....

The Supreme Court of Mississippi's recent opinion in Newell v. State, 2010 WL 4882026 (Miss. 2010), provides an interesting, albeit somewhat flawed, discussion of these two marital privileges.

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

Monday, December 6, 2010

Under Pressure: Ninth Circuit Finds Negotiation Statements Admissible Despite Rule 408 To Prove Inappropriate Pressure

Federal Rule of Evidence 408 provides:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

As the language of Rule 408(b) makes clear, the three permitted uses listed are not exhaustive but instead only examples of permissible purposes. In its recent opinion in Costanich v. Department of Social and Health Services, 2010 WL 4910222 (9th Cir. 2010), the Ninth Circuit found that evidence of settlement negotiations was admissible for a purpose not enumerated under Rule 408(b). I'm not sure that I agree.

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

Sunday, December 5, 2010

The Shipping News: Eastern District Of Wisconsin Finds Data From Customs Records Admissible Under Rule 803(17)

Federal Rule of Evidence 803(17) 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.

As I have previously noted (see, e.g., here), this exception covers entries from the Kelley Blue Book. And, as the recent opinion of the United States District Court for the Eastern District of Wisconsin in Fond du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co. Ltd., 2010 WL 4867617 (E.D. Wis. 2010), makes clear, the exception also covers certain data compilations from Customs records.

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

Saturday, December 4, 2010

Designers Of The Arkansas: Court of Appeals Of Arkansas Finds Improper Bolstering Testimony Violated Rule 608(a)

Like its federal counterpart, Arkansas Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. 

As the language and the recent opinion of the Court of Appeals of Arkansas in Stalter v. Gibson, 2010 Ark. App.801 (Ark.App. 2010), make clear, a witness' credibility can only be bolstered after it has been attacked.

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

Friday, December 3, 2010

Bad Reputation?: Sixth Circuit Finds No Error With District Court's Prevention Of Character Evidence Question

A husband and wife are charged with conspiracy to commit money laundering, six counts of money laundering or aiding and abetting money laundering, and one count of harboring or concealing a fugitive. The husband has his attorney call a character witness to ask him whether he had an opinion as to the husband's reputation for "integrity, honesty and fair dealing" among his friends and associates. The prosecution objects, and the court sustains the prosecution's objection, prompting defense counsel to modify his question and ask whether the husband's reputation for "truth and veracity" was "good." The character witness answers that the husband's reputation for "truth and veracity" was "good." Is such an answer to this second question the functional equivalent of a positive answer to the first question? According to the recent opinion of the Sixth Circuit in United States v. Reid, 2010 WL 4829852 (6th Cir. 2010), the answer is "yes." I disagree.

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

Thursday, December 2, 2010

Taxing Time: Middle District Of Florida Precludes Jury Impeachment In Wesley Snipes Tax Case

After actor Wesley Snipes was convicted of three counts of misdemeanor offenses involving willful failure to file his income tax returns and sentenced to consecutive terms aggregating three years imprisonment, he, inter alia, moved for permission to interview jurors and for a new trial. Part of the basis for this motion was, inter alia, an e-mail that defense counsel received the evening after the United States Court of Appeals for the Eleventh Circuit rejected Snipes' appeal of his conviction. This e-mail, which came from one of the jurors who heard Snipes' case stated,

I served on the jury in Ocala that found him guilty on 3 counts of failing to file taxes. It was a deal that had to be made because of certain jurors that had already presumed he was guilty before the trail [sic] started and we only found this out in the last few days of deliberation. We thought we were making the right deal because we did not think he would go to jail for not filing taxes. There were 3 on the jury that felt this way and told us he was guilty before they even heard the first piece of evidence going against what the judge had said. If I can be of any help feel free to call me at

In rejecting Snipes' motion, the United States District Court for the Middle District of Florida found in United States v. Snipes, 2010 WL 4674368 (M.D.Fla. 2010), that "further pursuit of the issue is clearly foreclosed by Federal Rule of Evidence 606(b)," which 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.

I disagree. 

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

Wednesday, December 1, 2010

Of Interest: Amendment To Federal Rule Of Evidence 804(b)(3) Becomes Law

Today, the recent amendment to Federal Rule of Evidence 804(b)(3) finally took effect. Previously, Rule 804(b)(3) provided an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

After the amendment, Federal Rule of Evidence 804(b)(3) now provides an exception to the rule against hearsay for 

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

In other words, previously only criminal defendants had to prove sufficient corroborating circumstances to introduce statements exposing declarants to criminal liability (usually confessions by alternate suspects). Now, the same burden also falls on prosecutors if, for instance, they are trying to introduce statements exposing declarants to criminal liability (e.g., statements by people who allegedly helped defendants commit the crime charged).

-CM 

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

Unspecified Error: Court Of Appeals Of Minnesota Notes Problems With Unspecified Conviction Impeachment

Like its federal counterpart, Minnesota Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect....

And, one of the factors that courts use to determine whether a conviction's probative value outweighs its prejucial effect is to look at how similar the prior conviction is to the crime charged (the greater the similarity, the greater the reason for not permitting use of the crime to impeach). But what if a court tries to reduce the prejudice of a similar prior conviction by ordering the prosecution to refer to the conviction only as a "felony" conviction, without identifying the underlying offense? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in State v. Hutchinson, 2010 WL 4825035 (Minn.App. 2010).

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