EvidenceProf Blog

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

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Saturday, June 5, 2010

Travel Plans: Eleventh Circuit Precludes Jury Impeachment Regarding Foreman With Flight On 4th Day Of Delierations Pressuring Jury To Hurry

Federal 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 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.

So, let's say that a defendant is charged with money laundering and several drug crimes. Based upon the number of charges and the amount of evidence, the trial is fairly long: twenty days. These twenty days of trial are then followed by four days of deliberations, with the jury eventually finding the defendant guilty of all charges. After trial, however, an alternate juror contacts defense counsel and informs him that the jury foreman booked a flight to Las Vegas on what turned out to be the fourth day of deliberations and pressured the jury to hurry its deliberations. Should the defendant get a new trial, or should the court at least investigate these allegations of juror misconduct? According to the recent opinion of the Eleventh Circuit in United States v. Valencia-Trujillo, 2010 WL 2163105 (11th Cir. 2010), the answer is "no."

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June 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, June 4, 2010

Truth And Consequences: Fourth Circuit Rejects Confrontation Clause Appeal Based Upon Absence Of Hearsay

Pursuant to the Supreme Court's opinion in Crawford v. Washington,

the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.  The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial.

As noted above, though, the defendant only has a right to confront the maker of a statement when that statement is indeed hearsay. Thus, when the prosecution introduces a statement, but does not introduce it to prove the truth of the matter asserted in the statement, the Confrontation Clause does not apply, a fatal problem for the defendant in United States v. Hines, 2010 WL 2123695 (4th Cir. 2010).

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June 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 3, 2010

It's My Space, That's Why They Call It MySpace, Take 5: Maryland Court Applies Rule 901(b)(4) To Resolve MySpace Authentication Issue

A defendant is charged with second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. At the defendant's first trial, a witness testifies that he did not see the defendant pursue the victim into the bathroom (where he died) with a gun. The first trial ends in a mistrial, and, at a second trial, the witness changes his testimony and testifies that the defendant was the only person in the bathroom, other than the victim, when the fatal shots were fired. The witness claims that he fabricated his testimony at the first trial because the defendant's girlfriend threatened him. To corroborate this claim, the prosecution introduces into evidence a redacted printout obtained from a MySpace profile page allegedly belonging to the defendant's girlfriend, which said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant is thereafter convicted. Was that page properly admitted, and how can parties generally authenticate MySpace pages and comments as belonging to a particular person? Those were the questions addressed by the Court of Special Appeals of Maryland in its recent opinion in Griffin v. State, 2010 WL 2105801 (Md.App. 2010).

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June 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 2, 2010

Make It A Habit: Supreme Court Of Nevada Finds Evidence of Doctor's Routine Properly Admitted As Habit Evidence

Like Federal Rule of Evidence 406, NRS 48.059(1) provides that

Evidence of the habit of a person or 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.

Pursuant to Federal Rule of Evidence 406 and many state counterparts, courts in many jurisdictions have allowed evidence of a medical practitioner's routine practice as evidence relevant to what the practitioner did on a particular occasion. And that is exactly what the Supreme Court of Nevada did in Thomas v. Hardwick, 2010 WL 2145367 (Nev. 2010).

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June 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 1, 2010

Frustrated Incorporated: Court Of Criminal Appeals Of Alabama Reverses Robery Conviction Based On Improperly Admitted Coconspirator Admission

Like its federal counterpart, Alabama Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if....[t]he statement is offered against a party and is....(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

Because coconspirator admission rule only applies to statements made during the course and in furtherance of a conspiracy, it is well established that confessions made by one coconspirator after he has been apprehended are not admissible under the rule because they are in frustration of a conspiracy. This was an issue, however, that was not recognized by the trial court in the prosecution of Devane Hillard, which led to the opinion of the Court of Criminal Appeals of Alabama in Hillard v. State, 2010 WL 2148535 (Ala.Crim.App. 2010).

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

Monday, May 31, 2010

Leave It To The Experts: Supreme Court Of Kentucky Waffles Over Whether Nonexperts Can Authenticate Handwriting Based Upon Familiarity Acquired For Purposes Of Litigation

Like its federal counterpart, Kentucky 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

And, like its federal counterpart, Kentucky Rule of Evidence 901(b)(2) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:  

(2) Nonexpert testimony on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for the purposes of litigation. 

The way I see it, the language of Rule 901(b)(2) makes it clear that a party cannot authenticate a writing based upon nonexpert opinion testimony as to the genuineness of handwriting, based upon familiarity acquired for the purposes of litigation. According to the recent opinion of the Supreme Court of Kentucky in Roach v. Commonwealth, 2010 WL 2016851 (Ky. 2010), however, this is not so clear.

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May 31, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, May 30, 2010

Proper Proffer: Second Circuit Construes Scope Of Substantive Rebuttal Waiver Provision Under Rule 410

Federal Rule of Evidence 410(4) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

Since the Supreme Court's decision in United States v. Mezzanatto, 513 U.S. 196 (1995), however, it is well established that prosecutors can get criminal defendants to waive the protections of this Rule. But if a defendant signs a waiver allowing for the use of his statements made during plea discussions as substantive evidence to rebut evidence offered or elicited or factual assertions made by or on behalf of him at trial, what exactly has he waived? That was the question addressed by the Second Circuit in its recent opinion in United States v. Oluwanisola, 2010 WL 2011317 (2nd Cir. 2010).

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May 30, 2010 | Permalink | Comments (0) | TrackBack (0)