EvidenceProf Blog

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

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Saturday, May 1, 2010

Is It Your Recollection?: California Appellate Court Deems Improper Admission Of Recorded Recollection Harmless Error

Like Federal Rule of Evidence 803(5)California Evidence Code Section 1237 provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made (i) by the witness himself or under his direction or (ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

As the above language makes, clear "recorded recollections" are only admissible if the "witness has insufficient present recollection to enable him to testify fully and accurately. But, as the recent opinion of the Court of Appeal, Second District, Division 1, California, in People v. Juarez, 2010 WL 1645814 (Cal.App. 2 Dist. 2010), makes clear, when a trial court allows for the admission of a recorded recollection despite the witness having sufficient present recollection, an appellate court will inevitably find harmless error.

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May 1, 2010 | Permalink | Comments (1) | TrackBack (0)

Friday, April 30, 2010

Impeachable Opinion?: Court Of Appeals Of Maryland Finds Trial Court Properly Deferred Impeachment Ruling Until After Defendant Testified

Similar to its federal counterpartMaryland Rule of Evidence 5-609(a) 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 if elicited from the witness or established by public record during examination of the witness, but only if (1) the crime was an infamous crime or other crime relevant to the witness's credibility and (2) the court determines that the probative value of admitting this evidence outweighs the danger of unfair prejudice to the witness or the objecting party

A criminal defendant, of course, can exercise his Fifth Amendment privilege against self-incrimination and not testify at trial. So, does the trial court have an obligation to rule on the issue of whether a defendant's prior convictions will be admissible to impeach him before he makes this decision, or can it defer that decision until after the defendant testifies? According to the recent opinion of the Court of Appeals of Maryland in Dallas v. State, 2010 WL 1643252 (Md. 2010), courts can at least sometimes defer that decision, and the trial court in the case before it was entitled to defer. I'm not sure how I feel about the court's general conclusion, but I disagree with its specific conclusion in the case before it.

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April 30, 2010 | Permalink | Comments (1) | TrackBack (0)

Thursday, April 29, 2010

Send More Paramedics: Court Of Appeals Of Indiana Finds Stranger's Statements Not Covered By Rule 803(4)

Like its federal counterpart, Indiana Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

Clearly, this rule covers statements made by the person needing medical treatment, but does it also cover statements made by third parties? As the recent opinion of the Supreme Court of Indiana in Jackson v. State, 2010 WL 1685974 (Ind. 2010), the answer is "maybe" when the statement is made by a close family member, but the answer is "no" when the statement is made by a stranger. 

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April 29, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 28, 2010

Can You Give Me A Summary?: Court Of Appeals Of Texas Finds Summary Of Defendant's Convictions Inadmissible At Sentencing

Article 37.07, section 3(a)(1) of the Texas Criminal Code provides that

Regardless of the plea and whether the punishment be assessed by the judge or the jury, evidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act. A court may consider as a factor in mitigating punishment the conduct of a defendant while participating in a program under Chapter 17 as a condition of release on bail. Additionally, notwithstanding Rule 609(d), Texas Rules of Evidence, and subject to Subsection (h), evidence may be offered by the state and the defendant of an adjudication of delinquency based on a violation by the defendant of a penal law of the grade of:

(A) a felony; or

(B) a misdemeanor punishable by confinement in jail.

Based upon this language, I don't quite understand the recent opinion of the Court of Appeals of Texas, Waco, in Melvin v. State, 2010 WL 1611072 (Tex.App.-Waco 2010).  

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April 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, April 27, 2010

Ace In The Hole: Seventh Circuit Deems Neurologist's Testimony Properly Excluded Based Upon Late Disclosure

Under Federal Rule of Civil Procedure 26(a)(1)(A)(i),

Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information — along with the subjects of that information — that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.

Moreover, Federal Rule of Civil Procedure 26(a)(2)requires the proponent of expert testimony to disclose the witness' identity, along with a written report that contains, among other things, a “complete statement of all opinions the witness will express and the basis and reasons for them." And, as the recent opinion of the Seventh Circuit in Happel v. Walmart Stores, Inc., 2010 WL 1529010 (7th Cir. 2010), makes clear, the sanction for noncompliance with this latter rule is typically automatic and mandatory exclusion of the expert's testimony.

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April 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, April 26, 2010

Pleading In: Court Of Appeals Of Ohio Finds Plea Allocution Qualified As A Statement Against Interest

Similar to its federal counterpartOhio Rule of Evidence 804(B)(3) provides an exception to the rule against hearsay for

A statement that was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless the declarant believed it to be true. A statement tending to expose the declarant to criminal liability, whether offered to exculpate or inculpate the accused, is not admissible unless corroborating circumstances clearly indicate the truthworthiness of the statement.  

I had never really thought about it before, but as the recent opinion of the Court of Appeals of Ohio, Sixth District, in State v. Jones, 2010 WL 1633340 (Ohio App. 6 Dist. 2010), makes clear, a plea allocution by an unavailable declarant should qualify as a statement against interest under this Rule.

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April 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 25, 2010

Ask The Doctor: Does Rule 803(4) Require Inquiries Into the Declarant's Motive?

Like its federal counterpartIowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. 

In its recent opinion in State v. Bentley, 2010 WL 1576832 (Iowa App. 2010), the Court of Appeals of Iowa claimed that the Tenth Circuit has found that the second prong of a test commonly used in connection with the federal counterpart "is unnecessary because it essentially duplicates the language of the rule of evidence." I disagree with this conclusion and also disagree with the Tenth Circuit opinion at issue.

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April 25, 2010 | Permalink | Comments (0) | TrackBack (0)