EvidenceProf Blog

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

Saturday, January 16, 2010

Call The Police: Seventh Circuit Explains Rationale(s) For Excluding Police Reports In Criminal Cases Under Rule 803(8)(B)

Federal Rule of Evidence 803(8)(B) provides that

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel.

In other words, police reports are not admissible in criminal cases. But why? That was the question addressed by Judge Posner in his recent opinion in United States v. Hatfield, 2010 WL 114930 (7th Cir. 2010), although his analysis was irrelevant to his conclusion.

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January 16, 2010 | Permalink | Comments (1) | TrackBack (0)

Friday, January 15, 2010

Q & A: Ninth Circuit Finds DEA Agent's Testimony Didn't Cross Rule 704(b) Line In Drug Trafficking Appeal

A week ago, I posted an entry about a Maryland case in which the Court of Appeals of Maryland strained to find that a sergeant's testimony did not violate Maryland's counterpart to Federal Rule of Evidence 704(b), which 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.

The court's conclusion in that case was that even though the prosecutor's question crossed the Rule 704(b) line, the sergeant's answer did not. I agreed with this conclusion in theory, stating, "I have no doubt that a question that crosses the Rule 704(b) line can prompt a response that does not."  I just didn't think that this conclusion applied to that Maryland case. Conversely, I think that the Ninth Circuit correctly applied this conclusion in its recent opinion in United States v. Anchrum, 2009 WL 5125788 (9th Cir. 2009), even though it claimed otherwise.

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January 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 14, 2010

As I Lay Dying: Court Of Appeals Of Michigan Finds Dying Declarant Had Personal Knowledge Based Upon Details Of Shooting

Like its federal counterpartMichigan Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death  

This dying declaration exception also requires that the declarant be "unavailable" at trial, which usually isn't a problem because the declarant of a dying declaration almost always dies. There is, however, another requirement for the admission of a dying declaration, and it is a requirement that applies to almost all hearsay: The declarant must have personal knowledge under Rule 602

This is something that I find students often miss in Evidence class. I give them a fact pattern where an EMT comes upon Vince, who has been shot in the back of the head. The EMT tells Vince that he only has a few minutes left, and Vince tells the EMT, "Dan shot me!" The EMT asks Vince how he knows, and he responds, "I just know." The problem that many students fail to recognize is that a prosecutor trying to introduce Vince's statement as a dying declaration likely could not establish that Vince had personal knowledge of his shooter; instead, it looks as if he is making a guess about his shooter's identity. As the recent opinion of the Court of Appeals of Michigan in People v. Holbrook, 2010 WL 99010 (Mich.App. 2010), makes clear, however, the circumstances are quite different when the victim is shot seven times, mostly in the front of his body.

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January 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 13, 2010

Don't You Be Intimidated: Supreme Court Of New Hampshire Fails To Find Witness Intimidation Is Per Se A Crime Of Dishonesty Or False Statement Under Rule 609(a)(2)

Like its federal counterpartNew Hampshire Rule of Evidence 609(a)(2) provides that 

For the purpose of attacking the character for truthfulness of a witness...evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

A defendant is charged with four counts of the sale of a narcotic drug. Those drugs were sold to an individual cooperating with the government who later testified against the defendant at trial. The defendant thereafter sought to impeach the cooperating witness with evidence of his prior conviction for witness intimidation. Should the trial court have admitted this impeachment evidence under New Hampshire Rule of Evidence 609(a)(2)? That was the question faced by the Supreme Court of New Hampshire in its recent opinion in State v. Brown, 2009 WL 5150345 (N.H. 2009).

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January 13, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 12, 2010

Chicken Little Or Canary In The Coal Mine?, Take 4: Supreme Court Hears Oral Argument In Briscoe v. Virginia

Here is the transcript of yesterday's oral argument in Briscoe v. Virginia, the potentially landmark Confrontation Clause case that I have previously blogged about (here). I am in the process of finishing my exam grading for the fall semester, so I don't have time to address the oral argument now in much detail, but I should have some posts on the oral argument next week.


January 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Is It Your Recollection?: Court Of Appeals Of Texas Allows Officer To Establish Accuracy Of Recorded Recollection

Like its federal counterpartTexas Rule of Evidence 803(5) provides an exception to the rule againsy hearsay for

A memorandum or record concerning a matter about which a witness once had personal 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, unless the circumstances of preparation cast doubt on the document's trustworthiness. 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.

Rule 803(5) is a Rule 803 hearsay exception, meaning that such a "recorded recollection" can be admitted regardless of whether the declarant is available to testify at trial. When the declarant is available to testify at trial, he can establish that the recorded recollection reflected his knowledge correctly by providing testimony to that effect. But if the declarant is "unavailable" at trial, how can the proponent of a recorded recollection establish such accuracy? That was the question faced by the Court of Appeals of Texas, Waco, in its recent opinion in In re. J.W., 2009 WL 5155784 (Tex.App.-Waco 2009).

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January 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, January 11, 2010

Submission Guide for Online Law Review Supplements, Version 3.0 (1/11/2010), Now Available On SSRN

Today, I posted my Submission Guide for Online Law Review Supplements, Version 3.0 (1/11/2010) on SSRN. Version 3.0 has entries for two new journals: (1) Arguendo, the online supplement to The George Washington Law Review, and MISSing Sources, the online supplement to the Mississippi Law Journal. A few years ago, there were only a few of these supplements, and it was uncertain how much of an impact that they would have on legal scholarship. Now, however, by my count, 14 of the top 28 schools in the U.S. News law school rankings have online law review supplements.


January 11, 2010 | Permalink | Comments (1) | TrackBack (0)

Sunday, January 10, 2010

Better Evidence Or Best Evidence?: Supreme Court Of Rhode Island Engages In Detailed Analysis Of Best Evidence Rule

Like its federal counterpart, Rhode Island Rule of Evidence 1002, its 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 or by statute.

However, also like its federal counterpart, Rhode Island Rule of Evidence 1003 provides that:

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

So, under what circumstances would it be unfair to admit a duplicate in lieu of the original? And what is the proponent to do if he is trying to introduce a duplicate under such circumstances? The answer can be found in the recent opinion of the Supreme Court of Rhode Island in State v. Grullon, 2009 WL 4722264 (R.I. 2009).

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January 10, 2010 | Permalink | Comments (1) | TrackBack (0)