EvidenceProf Blog

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

Saturday, June 12, 2010

Disinterested?: Court Of Appeals Of Texas Finds Statement Regarding "Burned Or Dirty" Gun Inadmissible As Statement Against Interest

Texas Rule of Evidence 803(24) provides an exception to the rule against hearsay for

A statement which 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, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

A defendant is charged with capital murder based upon the victim being shot to death. Part of his defense is that an alternate suspect committed the crime. To prove that the alternate suspect committed the crime, the defendant seeks to introduce testimony that, two weeks after the victim's death, the alternate suspect sought to sell a gun to another individual. When the other individual asked whether the gun was "burned or dirty," the alternate suspect responded, "Yeah, I just did something good." Should this statement qualify as a statement against interest? According to the recent opinion of the Court of Appeals of Texas, Houston, in its recent opinion in Ramirez v. State, 2010 WL 2306112 (Tex.App.-Hous. [1 Dist. 2010]), the answer is "no." I disagree.

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

Friday, June 11, 2010

You're Giving Me A Headache: Court Of Appeals Of Texas Deems Child's Statements To Therapist About Parents' Drug Use Admissible Under Rule 803(4)

Like its federal counterpart, Texas 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.

So, does a four-and-a-half year-old's statement to her therapist that her parents used drugs and that she saw white powder around her house qualify for admission as a statement for purposes of medical treatment or diagnosis under Texas Rule of Evidence 803(4)? According to the Court of Appeals of Texas, Austin, in its recent opinion in Jesse Calderon and Marixza Melendez v. Texas Department of Family and Protective Services, 2010 WL 2330372 (Tex.App.-Austin 2010), the answer is "yes."

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June 11, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 10, 2010

Intelligence Quotient: Supreme Court Of Wyoming Denies Plaintiff New Trial Despite Allegations Of Quotient Verdict

Similar to its federal counterpart, Wyoming 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

As I have noted before, jurors are not allowed to enter a "quotient verdict," which is

an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award.

That said, can jurors impeach their verdict through testimony that it was a quotient verdict? And can there be a quotient verdict if jurors do not agree beforehand to be bound by the result reached? These were the questions addressed by the Supreme Court of Wyoming in its recent opinion in Lake v. D & L Langley Trucking, Inc., 2010 WL 2292910 (Wyo. 2010).

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June 10, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 9, 2010

Rescue 911: Court Of Appeals Of Indiana Finds Caller's Testimony Sufficient To Authenticate 911 Recording

Like its federal counterpart, Indiana 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, let's say that a declarant calls 911 after witnessing an alleged battery. A defendant is now on trial facing charges of battery, and the prosecution wants to admit the 911 recording into evidence. Who must authenticate the recording? The declarant? Someone from 911 or the police department? Both? According to the recent opinion of the Court of Appeals of Indiana in Ulshafer v. State, 2010 WL 2224618 (Ind.App. 2010), just the testimony of the declarant is sufficient.

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June 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 8, 2010

No M.O.: Court Of Appeals Of Minnesota Finds Trial Court Properly Excluded Victim's Sexual History Under Rape Shield Rule

Minnesota Rule of Evidence 412(1)(A)(i) provides that

(1) In a prosecution for acts of criminal sexual conduct, including attempts or any act of criminal sexual predatory conduct, evidence of the victim's previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury, except by court order under the procedure provided in rule 412. Such evidence can be admissible only if the probative value of the evidence is not substantially outweighed by its inflammatory or prejudicial nature and only in the following circumstance[]:
(A) When consent of the victim is a defense in the case,
(i) evidence of the victim's previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue, relevant and material to the issue of consent

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Koloski, 2010 WL 2265583 (Minn.App. 2010), it is difficult to establish such a common plan or scheme through only a single incident of prior sexual conduct.

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June 8, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, June 7, 2010

Continuation Rule: Supreme Court Of Georgia Finds Admission Of Eyewitness ID Forms Doesn't Violate Continuing Witness Rule

Apparently, Georgia has an objection which is known as the continuing witness objection:

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once....The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations. Davis v. State, 676 S.E.2d 215, 219 (Ga. 2009).

According to the recent opinion of the Supreme Court of Georgia in Dockery v. State, 2010 WL 2243249 (Ga. 2010), however, eyewitness identification forms are not subject to the rule. Although I don't know much about the continuing witness objection, I find this odd.

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June 7, 2010 | Permalink | Comments (1) | TrackBack (0)

Sunday, June 6, 2010

In Bad Company: Western District Of Michigan Finds Employee Admissions Sufficient To Defeat Summary Judgment Motion In Age Discrimination Case

Federal Rule of Evidence 801(d)(2)(D) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

And, as the recent opinion of the United States District Court for the Western District of Michigan in Johnson v. United Rentals, Inc., 2010 WL 1981295 (W.D. Mich. 2010), makes clear, this Rule can be extremely useful to plaintiffs bringing discrimination actions against their employers.

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June 6, 2010 | Permalink | Comments (1) | TrackBack (0)