Saturday, March 13, 2010
Court Of Public Opinion: Supreme Court Of Washington Holds Judicial Findings Inadmissible Under Public Records Exception
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.
It is well established that
Rule 803(8) was not intended to allow the admission of findings of fact by courts. Rule 803(8) is limited to investigations: "A judge in a civil trial is not an investigator, rather a judge." Nipper v. Snipes, 7 F.3d 415, 417 (4th Cir. 1993).The advisory committee notes to Rule 803(8) also indicate that the intent of the rule's drafters was to allow for the admission of investigations by officials in the executive branch; there is no indication in those notes that the committee intended this exception to include findings of fact by judges. Herrick v. Garvey, 298 F.3d 1184, 1192 (10th Cir. 2002).
Washington doesn't have a state counterpart to Federal Rule of Evidence 803(8), but it has recognized a public records exception to the rule against hearsay in its case law. And, in its recent opinion in In re Detention of Pouncy, 2010 WL 817369 (Wash. 2010), the Supreme Court of Washington found that this exception does not apply to judicial opinions.
Friday, March 12, 2010
Judge, Jury, And Interrogator: Court Of Appeals Of Iowa Notes That Judicial Interrogation Of Witnesses Is Allowed But Not Encouraged
Like its federal counterpart, Iowa Rule of Evidence 5.614(b) provides that
When necessary in the interest of justice, the court may interrogate witnesses, whether called by the court or by a party.
Thursday, March 11, 2010
Let's Compromise, Take 2: DDC Correctly Finds Rule 408 Inapplicable In Absence Of A Claim In Armenian Genocide Museum Dispute
Federal Rule of Evidence 408(a) provides that
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.
Last week, I posted an entry about the United States Court of Appeals for the District of Columbia incorrectly reversing a defendant's convictions by finding that the United States District Court for the District of Columbia failed to apply Federal Rule of Evidence 408(a) to an alleged settlement offer. As I noted in the post, the problem with the appellate court's opinion was that there was no "claim" at the time of the alleged offer, i.e., there was no litigation or threatened litigation. In Armenian Genocide Museum and Memorial, Inc. v. Cafesjian Family Foundation, Inc., 2010 WL 770557 (D.D.C. 2010), the United States District Court for the District of Columbia failed to apply Federal Rule of Evidence 408(a) to alleged settlement negotiations because there was no "claim." Will the United States Court of Appeals for the District of Columbia again erroneously reverse?
Wednesday, March 10, 2010
Chicken Little Or Canary In the Coal Mine?, Take 5: Court Of Appeals Of North Carolina Strains To Find Confrontation Clause Wasn't Violated Despite Testimony Concerning Non-Testifying Chemist's Report
In Melendez-Diaz v. Massachusetts, the Supreme Court recently found that certificates of state laboratory analysts are "testimonial" and thus covered by the Confrontation Clause. As I noted in my post in response to the opinion, "[i]f you believe Justice Kennedy, the result of the decision will be the sky falling on many criminal prosecutions; if you believe Justice Scalia, Justice Kennedy is Chicken Little." Well, if courts take the lead of the Court of Appeals of North Carolina in its recent opinion in State v. Hough, 2010 WL 702458 (N.C.App. 2010), it looks like Justice Scalia will be proven right.
Tuesday, March 9, 2010
It's All Subjective: Missouri Opinion Explains That Dying Declaration Exception Merely Requires Subjective Belief That Death Is Imminent
Missouri doesn't have official rules of evidence, but it does recognize a state counterpart to Federal Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay
[i]n a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impeding death.
And, a sthe recent opinion of the Court of Appeals of Missouri, Western District, in State v. Minner, 2010 WL 769126 (Mo.App. W.D. 2010), makes, clear, all that matters under this dying declaration exception is the declarant's subjective belief that death is imminent, not the objective reasonableness of that belief.
Monday, March 8, 2010
Did You Notice That?: Eighth Circuit Notes That Rule 404(b)'s Notice Requirement Doesn't Apply To Intrinsic Evidence
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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 or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Sunday, March 7, 2010
Federal Rule of Evidence 901(b)(3) provides that authentication can be accomplished by "[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated." As I always tell my Evidence students, this means that a party can always, as a last resort, submit a handwriting exemplar and the subject writing to the jury to compare even if the party has no other way to authenticate the subject writing. This could have been an important point in the recent opinion of the Eighth Circuit in Rodela-Aguilar v. United States, 2010 WL 724654 (8th Cir. 2010).