EvidenceProf Blog

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

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Saturday, April 24, 2010

Murphy's Law: New Jersey Court Finds Admission Of Defendant's 17 Year-Old Conviction Required Reversal

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten 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.

Moreover, the Advisory Committee's Note to the Rule indicates that "[a]lthough 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." Conversely, New Jersey Rule of Evidence 609 merely provides that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

Under this Rule, it is thus unclear how New Jersey courts should treat convictions that are more than ten years old, but it is clear that convictions more than sixteen years old will almost never) be admissible, at least according to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Murphy, 2010 WL 1609379 (N.J.Super.A.D. 2010).

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April 24, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, April 23, 2010

For Your Eyes Only: Court Of Appeals Of Ohio Finds Trial Court Erred By Allowing Witness To Read Rule 612 Writing Aloud

Like its federal counterpart, Ohio Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by Rules 16(B)(1)(g) and 16(C)(1)(d) of Ohio Rules of Criminal Procedure, if a witness uses a writing to refresh memory for the purpose of testifying, either: (1) while testifying; or (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing. The adverse party is also entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.  

In other words, if a witness once had personal knowledge of an event but now lacks memory of that event, an attorney can use a writing to refresh the witness' recollection and allow the witness to testify independent of the writing. Thus, the witness cannot read aloud from the writing under Rule 612; that can only be done if the writing also qualifies for admission as a recorded recollection under Ohio Rule of Evidence 803(5) (or is otherwise admissible). An Ohio trial court recently missed this point, leading to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in State v. Miller, 2010 WL 1534104 (Ohio App. 12 Dist. 2010).

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April 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 22, 2010

You Can Learn A Lot From A Dummy: Federal Circuit Reads "Qualified Witness" Language Out Of Rule 803(6) In Dicta In Crash Test Dummies Action

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

So, who constitutes a qualified witness? And does that witness need personal knowledge regarding the creation of the document offered, or personal participation in its creation, or knowledge of who actually recorded the information? In its recent opinion in Crash Test Dummy Movie, LLC v. Mattel, Inc., 2010 WL 1508203 (Fed. Cir. 2010), the Federal Circuit suggested that the answer to this latter question is "no." I disagree.

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April 22, 2010 | Permalink | Comments (2) | TrackBack (0)

Wednesday, April 21, 2010

Community Of Interest: Eleventh Circuit Fails To Reach "Predecessor In Interest" Ruling In Maritime Appeal

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

So, who qualifies as a predecessor in interest? Unfortunately, that was a question left unanswered by the Eleventh Circuit in its recent opinion in Hearn v. McKay, 2010 WL 1490344 (11th Cir. 2010).

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April 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 20, 2010

The Ultimate Driving Machine?: Third Circuit Seemingly Errs In Subsequent Remedial Measure Dicta In Action Against BMW

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

It is well established that this Rule only precludes the admission of evidence of subsequent remedial measures taken by parties, not evidence of subsequent remedial measures taken by non-parties; consequently, I can't understand the Third Circuit's contrary conclusion (in dicta) in Jacobson ex rel. Jacobson v. BMW of North America, LLC, 2010 WL 1499809 (3rd Cir. 2010).

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

Monday, April 19, 2010

Quantum Of Stealth: Court Of Appeals Of Minnesota Finds Gross-Misdemeanor Theft Qualified As Crime Of Dishonesty Or False Statement

Like Federal Rule of Evidence 609(a)(2), Minnesota Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime...involved dishonesty or false statement, regardless of the punishment.

As the Advisory Committee's Note to Federal Rule of Evidence 609(a)(2) notes, very few crimes qualify as crimes of dishonsety or false statement:

By that phrase, the committee means crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

In its recent opinion in State v. Gaiovnik, 2010 WL 1439156 (Minn.App. 2010), the Court of Appeals found that one of the defendant's prior convictions qualified for admission under Minnesota Rule of Evidence 609(a)(2). I'm not sure that I agree.

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

Sunday, April 18, 2010

Avoiding A Confrontation?: Eleventh Circuit Finds That Melendez-Diaz Did Not Do Away With Rule 703

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. Thus, if the forensic analysts (or similar experts) who prepared such certificates (or similar documents) do not testify at a criminal defendant's trial, the certificates are inadmissible. Does the prosecution, however, solve this problem by not admitting these certificates but having other experts offer their "own" conclusions based upon these certificates? That certainly seems to be the case based upon a recent opinion of the Court of Appeals of North Carolina and the recent opinion of the Eleventh Circuit in United States v, Winston, 2010 WL 1253809 (11th Cir. 2010).

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April 18, 2010 | Permalink | Comments (1) | TrackBack (0)