EvidenceProf Blog

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

Saturday, March 20, 2010

Objectionable Objection?: Court Of Appeals Of North Carolina Affirms Impeachment Ruling Based Upon Lack Of Specific Objection

Like its federal counterpartNorth Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement 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 10 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.

As the Advisory Committee Note to Federal Rule of Evidence 609 makes clear, "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 other words, convictions more than 10 years old are almost never admissible for impeachment purposes. Of course, as the recent opinion of the Court of Appeals of North Carolina in State v. Graham, 2010 WL 916389 (N.C.App. 2010), makes clear, none of those matters unless opposing counsel raised a specific objection to the admission of such a remote conviction.

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March 20, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, March 19, 2010

The Giant(s) Of Illinois, Take 2: Special Committee On Illinois Evidence Issues Proposed Illinois Rules Of Evidence

Currently, Illinois is one of few states that does not have codified rules of evidence. In November 2008, I wrote that

the Illinois Supreme Court announced the formation of a Special Committee on Illinois Evidence with the aim of codifying existing evidentiary law so that it is available in a single source.   The Special Committee, appointed by the Supreme Court, is composed of a blue ribbon roster of judges, practitioners, law professors and state legislators.

I was honored to be asked by that Committee to draft a report comparing each Federal Rule of Evidence with the corresponding evidentiary principle that Illinois courts had developed in case law to assist the Committee in its creation of Illinois Rules of Evidence. The result of that endeavor was a 100 page report prepared with substantial assistance from John Marshall's Associate Dean for Academic Affairs and Professor Ralph Ruebner and law students Katie Anderson, Timothy Herman, and Jessica Kull. 

We submitted that report in May 2009, and the Committee set forth on the arduous task of drafting Proposed Illinois Rules of Evidence, which are now available here: Proposed Illinois Rules of Evidence. Here is the accompanying Notice of Public Hearings on the Proposed Rules, which will be held on May 18th and May 20th at 10:00 A.M. As the Notice notes, "Anyone wishing to be scheduled to testify at the public hearings should advise the Committee in writing...not later than Monday, May 10, 2010."

After my initial brief review of the rules, everything looks to be in place, but maybe I missed something. Do readers have any thoughts or suggestions on the rules? If so, please either submit a comment to this post or e-mail me at 7millerc@jmls.edu.

(Hat tip to my colleague Mark Wojcik for the link)


March 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 18, 2010

Judge, Jury, and Interrogator, Take 2: Court Of Appeals Of Virginia Finds Judicial Interrogation At Sentencing Hearing Was Proper

Federal Rule of Evidebce 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." Virginia does not have codified rules of evidence, but its courts also generally allow judges to interrogate witnesses. In a post last week about Iowa Rule of Evidence 5.614(b) last week, I noted that Iowa courts discourage judicial interrogation, "particularly where the jury is the fact finder." The recent opinion of the Court of Appeals of Virginia in Aispuro v. Commonwealth, 2010 WL 906636 (Va.App. 2010), a case where the judge was the fact finder. And, as the court's opinion makes clear, judicial interrogation in such a case is not similarly discouraged.

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March 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 17, 2010

Can You Corroborate That?: Ninth Circuit Denies Habeas Petition Because Of Uncorroborated Statement Against Interest

Like its federal counterpartIdaho Rule of Evidence 804(b)(3) provides 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 declarant to civil or criminal liability, or to render invalid a claim by declarant against another, that a reasonable man in declarant's position would not have made the statement unless declarant believed 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.

The main reason for the second sentence in this Rule is the fear that an accused will be able to introduce somebody else's confession to secure a "not guilty verdict," and then the prosecution will not be able to turn around and secure a conviction against the somebody else. A nice illustration of the type of situation that the second sentence seeks to avoid can be found in the recent opinion of the Ninth Circuit in Rhoades v. Henry, 2010 WL 761146 (9th Cir. 2010).

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March 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 16, 2010

High Risk Insurance: Court Of Appeals Of Iowa Finds Evidence Of Liability Insurance Admissible To Impeach Plaintiff

Like its federal counterpartIowa Rule of Evidence 5-411 provides that 

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

As the "such as" language from the Rule's second sentence makes clear, the listed permissible purposes are not exhaustive, just illustrative. This point is driven home by the recent opinion of the Court of Appeals of Iowa in Sweers v. Westfall, 2010 786036 (Iowa App. 2010), an opinion that also calls into question the efficacy of the Rule.

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March 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, March 15, 2010

Immigration Man: Third Circuit Finds That Results Of Asylum Investigation Were Properly Admitted

It is well established that "[t]he Federal Rules of Evidence do not apply in immigration proceedings." Liu v. Attorney General of the United States, 2010 WL 772166 (3rd Cir. 2010). That said, "evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process." Id. And in its recent opinion in Liu, the Third Circuit found that the results of an investigation of asylum documents satisfied these concerns.

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March 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 14, 2010

What's Your Damage?: Fifth Circuit Finds Lay Witness Can't Offer Opinion Testimony On Organic Brain Damage

Federal Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

As the Rule intimates, when testimony is based on scientific, technical, or other specialized knowledge, it can only be offered by an expert witness pursuant to Federal Rule of Evidence 702. And, under these Rules, the Fifth Circuit could make an easy ruling in its recent opinion in United States v. York, 2010 780166 (5th Cir. 2010): A lay witness cannot opine that his son suffers from organic brain damage.

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March 14, 2010 | Permalink | Comments (0) | TrackBack (0)