Saturday, March 27, 2010
Take Out Some Insurance: Court Of Appeals Of Kentucky Notes Exceptions To Rule 411 But Finds Them Inapplicable In Car Crash Appeal
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person 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 recent opinion of the Court of Appeals of Kentucky in Akers v. Cross, 2010 WL 1133083 (Ky.App. 2010), makes clear, there are exceptions to this rule although the court ultimately found that they did not apply in the case before it.
Friday, March 26, 2010
Ten Years Have Got Behind You: Supreme Court of Mississippi Affirms Conviction Because Defense Counsel Fails To Cite Rule 609(b)
Like its federal counterpart, Mississippi Rule of Evidence 609 provides, inter alia, that a criminal defendant can be impeached through his prior felony convictions not involving dishonesty or false statement if their probative value outweighs their prejudicial effect. Moreover, it is well established that a criminal defendant cannot appeal a trial court's ruling deeming his prior convictions admissible to impeach him unless he actually takes the witness stand and subjects himself to impeachment (or at least proffers his proposed testimony). Defense counsel in these cases thus faces a difficult decision. Does he have his client take the witness stand, knowing that his prior convictions could lead to his present conviction, but also knowing that he will be able to appeal the present conviction? Or does he have his client avoid taking the witness stand, hoping that this will lead to his client winning at trial but knowing that if he loses, no appeal can follow? It is tough to fault defense counsel for making either of these choices, but it is apparently easier to fault defense counsel for Ivan McClellan based upon the recent opinion of the Supreme Court of Mississippi in McClellan v. State, 2010 WL 1077322 (Miss. 2010).
Thursday, March 25, 2010
The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.
So, what happens when a judge makes a statement of common knowledge during a trial? Is this simply the judge taking judicial notice of a matter of common knowledge in accordance with Federal Rule of Evidence 201(c) or is the judge improperly testifying in violation of Federal Rule of Evidence 605? According to the recent opinion of the Second Circuit in United States v. Bari, such a statement is simply the judge taking judicial notice.
Wednesday, March 24, 2010
A Foolish Consistency: Fifth Circuit Case Reveals Odd Aspect Of Louisiana's "Prior" Consistent Statement Rule
Federal Rule of Evidence 801(d)(1)(B) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is... consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.
Seemingly similarly, Louisiana Code of Evidence article 801(d)(1)(B) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...[c]onsistent with his testimony and is offered to rebut an express or implied charge against him of recent fabrication or improper influence or motive.
As the recent opinion of the Fifth Circuit in Jones v. Cain, 2010 WL 909084 (5th Cir. 2010), makes clear, however, there is a clear (and bizarre) difference between the two rules.
Tuesday, March 23, 2010
Federal Rule of Evidence 611(c) provides that
Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.
It is up to the judge to determine whether a witness is in fact a hostile witness, but, as the recent opinion of the Third Circuit in Government of the Virgin Islands v. Williams, 2010 WL 939916 (3rd Cir. 2010), makes clear, the judge shouldn't share (all of) his reasoning with jurors.
Monday, March 22, 2010
What Are Your Intentions?: Seventh Circuit Finds Expert Testimony Was Properly Precluded Under Rule 704(b) In Sexting Appeal
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.
This Rule was originally "enacted to limit psychiatric testimony when a criminal defendant relies upon the defense of insanity," and it was passed in the wake of the shootings of Ronald Reagan and John Lennon. As the recent opinion of the Ninth Circuit in United States v. Hofus, 2010 WL 986799 (9th Cir. 2010), makes clear, however, this Rule also applies to testimony that a defendant engaged in "sexting" with a minor would never act on the intentions expressed in his texts.
Sunday, March 21, 2010
Expert Advice: Seventh Circuit Notes That Judges Might Want To Appoint Experts In Fair Debt Collection Practices Cases
Federal Rule of Evidence 706(a) provides that
The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
As the Seventh Circuit noted in its recent opinion in DeKoven v. Plaza Associates, 2010 WL 938025 (7th Cir. 2010), judges "rarely exercise" their powers under this Rule and appoint their own experts, but they might want to consider doing so in Fair Debt Collection Practices Act cases.