Saturday, April 3, 2010
Friday, April 2, 2010
Thursday, April 1, 2010
The Crime And The Cover-Up, Take 2: Third Circuit Finds Phone Conversations Constituted Co-Conspirator Admissions In Drug Appeal
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
Because this Rule only covers statements made during the course and in furtherance of conspiracies, it usually does not cover statements made by a co-conspirator after he is apprehended by police. The recent opinion of the Third Circuit in United States v. Jones, 2010 WL 1220960 (3rd Cir. 2010, provides an exception to this general rule.
Wednesday, March 31, 2010
Dead Man's Chest, Take 3: Court Of Appeals Of Minnesota Opinion Makes Clear That Elimination Of Dead Man's Statute Does Not Eliminate Hearsay Concerns
As I have previously noted on this blog,
Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate....The theory behind these statutes is that the interested person has reason to fabricate his testimony, and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims. Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.
As I have also previously noted on this blog, most states have repealed their Dead Man's Statutes. As the recent opinion of the Court of Appeals of Minnesota in Bronczyk v. Bronczyk, 2010 WL 1029738 (Minn.App. 2010), makes clear, however, the repeal of a Dead Man's Statute merely means that the person who talked to the now deceased or incapacitated person is no longer incompetent to testify; it does not mean that the rule against hearsay is satisfied.
Tuesday, March 30, 2010
Judge, Jury, And interrogator, Take 3: Seventh Circuit Doesn't Reverse Despite Improper Judicial Interrogation
Federal Rule of Evidence 605 provides that
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.
Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.
In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let's consider the recent opinion of the Seventh Circuit in United States v. Barnhart, 2010 WL 1136522 (7th Cir. 2010).
Monday, March 29, 2010
A Foolish Consistency, Take 2: New Jersey Court Finds No Error With Admission Of Prior Consistent Statement Before Charge Of Recent Fabrication
A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement...is consistent with the witness' testimony and is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive.
In other words, an attorney is allowed to admit a witness' prior consistent statement after opposing counsel has charged the witness with recent fabrication or improper influence or motive to rebut that charge. According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Hay, 2010 WL 1028048 (N.J.Super.A.D. 2010), however, there is no unfair prejudice if an attorney is allowed to admit a witness' prior consistent statement before opposing counsel has made such a charge. I disagree.
Sunday, March 28, 2010
Simply The Best: Court Of Appeals Of Georgia Notes That Satisfying Best Evidence Rule Doesn't Satisfy Rule Against Hearsay
Similar to Federal Rule of Evidence 1002, OGCA Section 24-5-4(a), Georgia's Best Evidence Rule, provides that "[t]he best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for." As the recent opinion of the Court of Appeals of Georgia in McKinley v. State, 2010 WL 1136202 (Ga.App. 2010), makes clear, however, just because a party satisfies the Best Evidence Rule does not mean that it satisfies the rule against hearsay.