EvidenceProf Blog

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

Saturday, May 22, 2010

I Need A Remedy: Middle District Of Georgia Finds Subjective Intent Not Dispositive In Subsequent Remedial Measures Analysis

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.

The main ground for excluding evidence of subsequent remedial measures "rests on a social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety."  So, let's say that a company's product allegedly causes an injury. And let's say that after the injury, the company stops selling the product and begins selling a similar product that is safer. But let's say that the company's motivation for selling the new product rather than the old product has nothing to do with safety concerns. Is evidence of the change inadmissible even in the absence of a specific intent by the defendant to make a subsequent remedial measure? According to the United States District Court for the Middle District of Georgia in In re Mentor Corp. ObTape Transobturator Sling Products Liability Litigation, 2010 WL 2015146 (M.D.Ga. 2010), the answer is "yes."

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May 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, May 21, 2010

Grave Secrets: Bones Episode Begs Question: Can The Alleged Victim Of A Crime Testify As An Expert Witness?

I am a fan of the TV show "Bones." Back in 2008, I did a post about a real case in which Kathy Reichs, the forensic anthropologist who wrote the books which served as the inspiration for the TV show, testified as an expert witness and was subjected to scathing comments from the prosecutor. Well, I finally caught up to last week's episode of "Bones," and it dealt with an interesting evidentiary question: Can the alleged victim of a crime testify as an expert witness at the trial of the defendant for committing that crime? According to the show, the answer is "no." In courts across the United States, however, the answer is "yes."

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

Thursday, May 20, 2010

You Have My Letter: Supreme Court Of Indiana Finds Letter Written To Victim Improperly Admitted Against Defendant Under Rule 410

Somewhat similar to its federal counterpart, Indiana Rule of Evidence 410 provides in relevant part that

Evidence of a plea of guilty or admission of the charge which was later withdrawn, or a plea of nolo contendere, or of an offer so to plead to the crime charged or any other crime, or of statements made in connection with any of the foregoing withdrawn pleas or offers, is not admissible in any civil or criminal action, case or proceeding against the person who made the plea or offer.

So, is a letter of apology written by the defendant to the victim inadmissible under this Rule? According to the recent opinion of the Supreme Court of Indiana in Gonzalez v. State, 2010 WL 1988134 (Ind. 2010), the answer is "yes" if the letter was written as part of the plea bargaining process.

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

Wednesday, May 19, 2010

We The Jury: Court Of Appeals Of Texas Finds Allegations Of Derogatory Intimidation Insufficient To Allow Jury Impeachment

Somewhat similar to its federal counterpart, Texas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

In other words, jurors cannot impeach verdicts based upon allegations of threatened or actual physical violence or intimidation by other jurors (except in Minnesota). So, does this rule make sense? Well let's look at the recent opinion of the Court of Appeals of Texas, Tyler, in Lee v. State, 2010 WL 1899675 (Tex.App.-Tyler 2010).

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

Tuesday, May 18, 2010

Benefit Of The Bargain: New Jersey Appellate Court Finds Improper Admission Of Plea Bargaining Statements Was Not Harmless Error

Like its federal counterpart, New Jersey Rule of Evidence 410 provides that

Except as otherwise provided in this rule, evidence of a plea of guilty which was later withdrawn, of any statement made in the course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations. However, such a statement is admissible (1) in any proceeding in which another statement made in the course of the same plea or plea discussions has been introduced and the statement should in fairness be considered contemporaneously with it, or (2) in a criminal proceeding for perjury, false statement, or other similar offense, if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

And, as the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Brabham, 2010 WL 1929560 (N.J.Super.A.D. 2010), makes clear, if a defendant's confessions made during plea discussions are admitted in violation of this Rule, it is going to be difficult for the court to find harmless error.

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May 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, May 17, 2010

Tender Mercies: Why Evidence of Ununsual Maturity Shouldn't Be Enough To Rebut Preumption That Children Under 12 Are Of Tender Years

Like the vast majority of states, Mississippi has a "tender years" exception to the rule against hearsay. Specifically, Mississippi Rule of Evidence 803(25) provides an exception to the rule against hearsay for

A statement made by a child of tender years describing any act of sexual contact performed with or on the child by another is admissible in evidence if: (a) the court finds, in a hearing conducted outside the presence of the jury, that the time, content, and circumstances of the statement provide substantial indicia of reliability; and (b) the child either (1) testifies at the proceedings; or (2) is unavailable as a witness: provided, that when the child is unavailable as a witness, such statement may be admitted only if there is corroborative evidence of the act.

In its recent opinion in McCrory v. State, 2010 WL 1855853 (Miss.App. 2010), the Court of Appeals of Mississippi noted that "[t]here is a rebuttable presumption that a child under the age of twelve is of tender years." So, when can this presumption be rebutted? As far as I can tell, no Mississippi court has conclusively answered that question, but I don't like what at least one Mississippi court has intimated.

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May 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 16, 2010

Just The Facts: Supreme Court Of North Dakota Finds NDRCP 56(e) Trumps NDRE 705 In Uninsured Motorist Appeal

Like its federal counterpart, North Dakota Rule of Evidence 705 provides that

The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

Also, like its federal counterpart, North Dakota Rule of Civil Procedure 56(e) provides in relevant part that, with regard to motions for summary judgment,

Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit must be attached thereto or served therewith.

So, do affidavits containing expert opinions submitted in connection with motions for summary judgment need to set forth specific facts showing there is a genuine issue for trial? In its recent opinion in Perius v. Nodak Mut. Ins. Co., 2010 WL 1875738 (N.D. 2010), the Supreme Court of North Dakota, like many courts before it, answered this question in the affirmative.

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May 16, 2010 | Permalink | Comments (0) | TrackBack (0)