EvidenceProf Blog

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

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Saturday, May 29, 2010

Jurors Behaving Badly: Eastern District Of California Precludes Jury Impeachment Regarding Intrajury Threats Of Violence

Just last week, I posted an entry about a recent opinion out of Texas in which an appellate court refused to allow a juror to impeach her verdict based upon allegations of derogatory intimidation by other jurors until she changed her vote. The basis for the court's refusal was Texas' counterpart to Federal Rule of Evidence 606(b), which 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 course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying .

The recent opinion of the United States District Court for the Eastern District of California in Dickson v. Subia, 2010 WL 1992580 (E.D. Cal. 2010), in which a juror was allegedly subjected to both verbal harassment and physical threats, was resolved on similar grounds.

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

Friday, May 28, 2010

Prejudging: New Jersey Appellate Court Reverses Restraining Order Based On Trial Judge's Pror Knowledge

Like its federal counterpart, New Jersey Rule of Evidence 605 provides that

The judge presiding at the trial may not testify as a witness in that trial. No objection need be made to preserve the point.

As I noted in a recent post,

Normally, this Rule applies when a judge makes comments at trial that are the equivalent of testimony, but as the recent opinion of the Court of Appeals of Arkansas in Kinard v. Arkansas Dept. of Human Services, 2010 WL 1904515 (Ark.App. 2010), makes clear, the Rule also applies when a judge engages in off-the-record fact gathering.

In Kinard, the judge intentionally engaged in off-the-record fact gathering. But as the recent opinion of the Superior Court of New Jersey, Appellate Division in T.J. v. G.G., 2010 2089676 (N.J. Super.A.D. 2010), makes clear, the Rule also applies to a judge who unintentionally engages in off-the-record fact gathering.

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

Thursday, May 27, 2010

Your Expert('s) Advide: District Of Puerto Rico Finds No Expert Disclosure Problem In Bed Burning Case

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." As I noted in a recent post, "the sanction for noncompliance with this...rule is typically automatic and mandatory exclusion of the expert's testimony." But what requirements apply when a party wants to present the testimony of the opposing party's expert witness at trial? That was the question addressed by the United States District Court for the District of Puerto Rico in its recent opinion in Rosa-Melendez v. Invacare Corp., 2010 WL 1801789 (D.Puerto Rico 2010).

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

Wednesday, May 26, 2010

Did You Notice That? Court Of Appeals Of Ohio Avoids Internet Authentication Issue Through Judicial Notice

Like its federal counterpart, Ohio Rule of Evidence 901(A) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, can internet printouts be admitted without the testimony of an authenticating witness? This was a question presented to the Court of Appeals of Ohio, Twelfth District in State v. Howard, 2010 WL 2029056 (Ohio App. 12 Dist. 2010), but one which it did not need to answer based upon judicial notice.

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

Tuesday, May 25, 2010

Getting Distribution: Eighth Circuit Finds Testimony Concerning Intent To Distribute Fine Under Rule 704(b)

Federal Rule of Evidence 704(b) 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.

And, as the recent opinion of the Eighth Circuit in United States v. Parish, 2010 WL 2025365 (8th Cir. 2010), makes clear, testimony that a certain amount of drugs is consistent with possession with intent to distribute does not run afoul of this rule.

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

Monday, May 24, 2010

Bad Habit: Supreme Court Of Alaska Finds Eight Photographs Of Parking Lot Insufficient As Habit Evidence

Like its federal counterpart, Alaska Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

In order to present habit evidence, however, the proponent must be able to prove that a person or organization acted in a particular way with sufficient frequency and regularity. And, as the recent opinion of the Supreme Court of Alaska in Mueller v. Buscemi, 2010 WL 2011505 (Alaska 2010), makes clear, this is difficult to do.

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

Sunday, May 23, 2010

Getting (Un)Lucky In Kentucky: Court Of Appeals of Kentucky Finds Trial Court Used Incorrect Standard For Rule 609(b) Impeachment

Like its federal counterpartKentucky Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten (10) years has elapsed since the date of the conviction unless the court determines that the probative value of the conviction substantially outweighs its prejudicial effect

In Smith v. Commonwealth, 2010 WL 2010730 (Ky.App. 2010), the trial court had deemed the alleged victims' convictions that were more than ten years old inadmissible because they did not relate to the issues before the trial court. And as the Court of Appeals of Kentucky found, this was clearly erroneous.

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