EvidenceProf Blog

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

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Saturday, April 10, 2010

Invasion Of Privacy: Court Of Appeals Of Texas Finds Trial Court Properly Excluded Evidence Of Alleged Victim's Prior Nonconsensual Sexual Acts Under Rape Shield Rule

Texas Rule of Evidence 412(a) provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.

Meanwhile, Texas Rule of Evidence 412(b) provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless [an exception applies].

The most typical rationale for such rape shield rules is that they prevent evidence of an alleged victim's prior sexual acts to be admissible to prove that the alleged victim has a propensity to consent to sexual acts and thus likely consented to the sexual act at issue. If this were the only rationale, evidence of an alleged victim's prior nonconsensual sexual acts would not be precluded under such rules. While not explaining its reasoning, the Court of Appeals of Texas, Forth Worth, did not reach this conclusion in its recent opinion in Bryan v. State, 2010 WL 1137038 (Tex.App.-Fort Worth 2010). This post explains why I agree with the court's conclusion.

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April 10, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, April 9, 2010

Next Best Thing: Court Of Appeals Of Kentucky Finds 2007 Version Of Rental Folder Admissible Under Rule 1004(2)

Like its federal counterpart, Kentucky Rule of Evidence 1002, the Best Evidence Rule, provides that

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

Also like its federal counterpart, however, Kentucky Rule of Evidence 1004(1) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.

Because of this latter Rule, the Court of Appeals of Kentucky in its recent opinion in Fabian Leon v. Penske Trucking Leasing Co., 2010 WL 140676 (Ky.App. 2010), was able to affirm the circuit court's order.

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

Thursday, April 8, 2010

Expert Or Ex Parte?: Court Of Appeals Of Minnesota Finds Party Input Not Required Before Rule 706(a) Expert Appointments

Like its federal counterpart, Minnesota 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 text of this Rule and the recent opinion of the Court of Appeals of Minnesota in Duckwall v. Duckwall, 2010 WL 1286851 (Minn.App. 2010), make clear, while the Rule allows for input from the parties regarding appointment of experts, it does not require it.

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

Wednesday, April 7, 2010

Cellular: Court Of Special Appeals Of Maryland Finds Expert Testimony Required For Cellular Phone Tracking Testimony

Maryland Rule of Evidence 5-701 provides that

If the witness is not testifying as an expert, the witness's testimony in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Meanwhile, Maryland Rule of Evidence 5-702 provides that

Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.

So, is testimony about where a suspect (generally) was at the time of a crime based upon cellular telephone tracking covered by Rule 5-701 or 5-702? That was the question addressed by the Court of Special Appeals of Maryland in its recent opinion in Wilder v. State, 2010 WL 1077325 (Md.App. 2010).

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April 7, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 6, 2010

A Foolish Consistency, Take 3: Second Circuit Finds No Error With Admission Of Alleged Prior Consistent Statement

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.

Pursuant to the Supreme Court's opinion in Tome v. United States, 513 U.S. 150 (1995), it is well established that this Rule "permits the introduction of a declarant's consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive."  I don't see how the recent opinion of the Second Circuit in United States v. Burden, 2010 WL 1223186 (2nd Cir. 2010), is consistent with this construction of the Rule.

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

Monday, April 5, 2010

Applying The Scalpel To The Physician-Patient Privilege: Supreme Court Of Utah Finds Redacted Patient Records Admissible

Utah Rule of Evidence 506(b), Utah's physician-patient privilege, provides that

If the information is communicated in confidence and for the purpose of diagnosing or treating the patient, a patient has a privilege, during the patient's life, to refuse to disclose and to prevent any other person from disclosing (1) diagnoses made, treatment provided, or advice given, by a physician or mental health therapist, (2) information obtained by examination of the patient, and (3) information transmitted among a patient, a physician or mental health therapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or mental health therapist, including guardians or members of the patient's family who are present to further the interest of the patient because they are reasonably necessary for the transmission of the communications, or participation in the diagnosis and treatment under the direction of the physician or mental health therapist. 

In its recent opinion in Staley v. Jolles, 2010 WL 1133335 (Utah 2010), the Supreme Court of Utah had to address the issue of whether redacted patient records implicate this physician-patient privilege. And, as several other courts had previously found, the Utah Supremes concluded that the answer is "not usually."

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April 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 4, 2010

Play It Again, Sam: Eleventh Circuit Shows Reluctance To Reverse Under Second Sentence Of Rule 803(5)

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

If a trial court improperly allows for the admission of an important memo or record under this Rule, it is pretty clear that such a ruling can form the basis for a reversal on appeal. But what if the trial court properly allows for the admission of an important memo or record under this Rule but improperly allows the memo or record to be received as an exhibit? My reading of the recent opinion in United States v. Jones, 2010 WL 1254351 (11th Cir. 2010), is that the Eleventh Circuit would almost never reverse based upon such an error.

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