EvidenceProf Blog

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

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Saturday, January 9, 2010

F For Effort: Court Of Appeals Of Ohio Finds Opponent's Efforts Can't Be Imputed To Proponent For Rule 804(A)(5) Purposes

Like its federal counterpartOhio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that 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 the declarant believed it to be true.

As under the Federal Rules of Evidence, however, a prerequisite for the admission of such a statement against interest is a finding of declarant unavailability, with Ohio Rule of Evidence 804(A)(5) providing that a declarant is unavailable if he

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's attendance or testimony) by process or other reasonable means.  

As both the language of the rule and the recent opinion of the Court of Appeals of Ohio, Fourth District, in State v. Hiles, 2009 WL 4827654 (Ohio App. 4 Dist. 2009), make clear, it is the proponent's efforts to procure the declarant's attendance that must be reasonable; the proponent cannot have the opponent's attempts imputed to him.

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

Friday, January 8, 2010

Draggin' The Line: Court Of Appeals Of Maryland Strains To Find Sergeant's Testimony Did Not Cross Rule 704(b) Line

Like its federal counterpartMaryland Rule of Evidence 5-704(b) states that

An expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may not state an opinion or inference as to whether the defendant had a mental state or condition constituting an element of the crime charged. That issue is for the trier of fact alone. This exception does not apply to an ultimate issue of criminal responsibility.   

In its recent opinion in Gauvin v. State, 2009 WL 4877695 (Md. 2009), the Court of Appeals of Maryland found that it had to address the issue of whether an appellant is entitled to a new trial if the trial court erroneously overruled his objection to a question that called for an answer prohibited by Maryland Rule of Evidence 5-704(b) if the testimony presented after the erroneous ruling did not violate the Rule. I agree with the court that such an appellant is not entitled to a new trial but disagree with the court's conclusion that the answer at issue was consistent with the Rule.

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

Thursday, January 7, 2010

Girl From The Pawn Shop: Court Of Appeals Finds Pawn Shop Database Printout Admissible Under Rule 803(15)

Like its federal counterpart, Texas Rule of Evidence 803(15) provides an exception to the rule against hearsay for

A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

Federal Rule of Evidence 803(15) and state counterparts are rarely used. I did a Westlaw of 803(15) in ALLFEDS and ALLSTATES and came up with only 26 results in the former database and only 36 in the latter. Moreover, in some of the retrieved opinions, the rule was merely mentioned in passing and not actually applied. I haven't previously written about this rule on this blog, so when I came across an opinion applying it -- the recent opinion of the Court of Appeals of Texas, El Paso in Gomez v. State, 2009 WL 4831117 (Tex.App.-El Paso 2009).

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January 7, 2010 | Permalink | Comments (2) | TrackBack (0)

Wednesday, January 6, 2010

The Price Of Admission: Court Of Appeals Of Iowa's Best Evidence Ruling Depends Upon Rule 1007 But Doesn't Cite It

Like its federal counterpartIowa Rule of Evidence 5.1002, Iowa's Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, an original is required, except as otherwise provided in these rules or by statute.  

Also like its federal counterpartIowa Rule of Evidence 5.1007 provides that

Contents of writings, recordings, or photographs may be proved by the testimony or deposition of the party against whom offered or by that party‚Äôs written admission, without accounting for the nonproduction of the original.  

While the Court of Appeals of Iowa did not mention Rule 5-1007 in its recent opinion in Koncel v. State, 2009 WL 4842502 (Iowa App. 2009), I think that the Rule was essential to the court's decision.

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

Tuesday, January 5, 2010

Double Your Hearsay: Court Of Appeals Of Texas Uses Incorrect Reasoning To Reach Correct Conclusion That Police Report Was Properly Excluded

Texas 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;

(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or

(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;

unless the sources of information or other circumstances indicate lac of trustworthiness.

As the Rule makes clear, police reports are inadmissible if offered by the prosecution against criminal defendants, but they are admissible if offered by criminal defendants against the prosecution. Nonetheless, in its recent opinion in Weiss v. State, 2009 WL 4757379 (Tex.App.-Fort Worth 2009), the Court of Appeals of Texas found that the trial court did not err in precluding a defendant from admitting a police report against the prosecution. I agree with the court's conclusion but disagree with its reasoning.

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January 5, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, January 4, 2010

Bless Me Father: Court Of Appeals Of Mississippi Seemingly Errs In Finding Priest-Penitent Privilege Applied To Conversation In Church Hallway

Mississippi Rule of Evidence 505(b), Mississippi's priest-penitent privilege, indicates that

A person has a privilege to refuse to disclose and prevent another from disclosing a confidential communication by the person to a clergyman in his professional character as spiritual advisor.

As the language of the Rule makes clear, there are two requirements for invocation of the privilege: (1) the subject communication must have been confidential, and (2) the subject communication must have been made to a clergyperson in his professional character as spiritual advisor. In its recent opinion in Williams v. State, 2009 WL 4808181 (Miss.App. 2009), the Court of Appeals of Mississippi seemingly confused these two requirements.

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

Sunday, January 3, 2010

Family Doctor: Supreme Court Of North Dakota Finds That Rule 803(4) Covers 3rd Party Statements To Medical Services Providers

Like its federal counterpartNorth Dakota Rule of Evidence 803(4) provides an exception to the rule against hearsay for: 

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Courts generally have reached two important conclusions with regard to Rule 803(4). First, most courts have found that statements identifying the general source of an injury or illness are admissible (e.g., "I was pushed down.") but statements identifying the person causing the injury or illness are inadmissible (e.g., "I was pushed down by Dan."), with a few key exceptions. Second, most courts have found that a statement does not have to come from the (prospective) patient himself (or be made directly to a medical services provider) to be admissible under Rule 803(4). The recent opinion of the Supreme Court of North Dakota in State v. Grant, 2009 WL 4800552 (N.D. 2009), reveals that North Dakota courts are in line with the majority of courts on the first conclusion and brings North Dakota courts in line with the majority of courts on the second conclusion.

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January 3, 2010 | Permalink | Comments (1) | TrackBack (0)