EvidenceProf Blog

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

Saturday, June 19, 2010

Brief Inquiry: Court Of Appeals Of Indiana Affirms Child Molesting Conviction Despite Possibly Erroneous Impeachment

Like its federal counterpart, Indiana Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or, if the conviction resulted in confinement of the witness then the date of the release of the witness from the confinement unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, let's say that the prosecution impeaches the defendant with a conviction that is more than ten year old, and the defendant does not object to the admission of his conviction for impeachment purposes. After the defendant is convicted, however, he appeals, claiming that evidence of this conviction was improperly admitted. Clearly, the defendant has to prove plain error. But can he do so if the prosecution's impeachment of him was fairly brief? According to the recent opinion of the Court of Appeals of Indiana in its recent opinion in Boyd v. State, 2010 WL 2396260 (Ind.App. 2010), the answer is "no."

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

Friday, June 18, 2010

Rapier, Not Blunderbuss: Court Of Criminal Appeals Of Texas Clarifies Scope Of Davis v. Alaska

Texas Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is not admissible, except for proceedings conducted pursuant to Title III, Family Code, in which the witness is a party, under this rule unless required to be admitted by the Constitution of the United States or Texas.

So, when does the Constitution require the admission of evidence of juvenile adjudications? According to the appellant in Irby v. State, 2010 WL 2382594 (Tex.Crim.App. 2010), any witness, including a juvenile, who is on probation may be cross-examined about that status to show a potential bias or motive to testify for the State. The Court of Criminal Appeals of Texas disagreed.

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

Thursday, June 17, 2010

Same Claim?: Northern District Of Florida Fails To Answer Whether Rule 408 Only Covers Settlement Documents Regarding Same Claim As Lawsuit

Federal Rule of Evidence 408(a) states:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

But does this Rule apply only when the claim involved in a lawsuit is the same as the claim involved in the settlement negotiations? The United States District Court for the Northern District of Florida didn't really answer that question in its recent opinion in Fluor Intercontinental, Inc. v. IAP Worldwide Services, Inc., 2010 WL 2366482 (N.D. Fla. 2010), but I think that the answer is a clear "no."

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

Wednesday, June 16, 2010

Standard Deduction: Court Of Appeals Of North Carolina Precludes Jury Impeachment Regarding Incorrect Damages Being Awarded

North Carolina 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, except that a juror may testify on the question 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. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

So, let's say that a plaintiff seeks $50,000 in damages, and the defendant counterclaims. And let's say that the jury's verdict form appears to award the plaintiff $20,000 in damages and the defendant $30,000 in damages. And let's say that after the verdict is entered, jurors come forward and claim that the $20,000 in damages listed for the plaintiff was the net amount that they intended to award it, with the $30,000 allegedly awarded to the defendant was intended to be the amount deducted from the $50,000 sought by the plaintiff to reach the total final billing of $20,000. Will the jurors' testimony be admissible? According to the recent opinion of the Court of Appeals of North Carolina in Carolina Homes by Design, Inc. v. Lyons, 2010 WL 2367110 (N.C. App. 2010), the answer is "no."

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

Tuesday, June 15, 2010

You're Not Authentic: Court Of Appeals Of Texas Finds Tape Recording Properly Excluded Based On Lack Of Authentication

Like its federal counterpart, Texas 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.

In other words, before an alleged confession note written by the defendant can be admitted, the proponent of the note must present some evidence establishing that the note was indeed written by the defendant. And if the defendant wants to introduce what he claims is a tape recording of the alleged victim's mother yelling at her, he must present some evidence establishing that it is indeed the mother's voice on the tape. In Sosa v. State, 2010 WL 2330304 (Tex.App.-Austin 2010), this was something that the defendant was unable to do.

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

Monday, June 14, 2010

A Foolish Consistency?: Court Of Appeals Of Ohio Deems Improper Admission Of Victim's Prior Consistent Statement Harmless Error

Like its federal counterpart, Ohio Rule of Evidence 801(D)(1)(b) provides that

A statement is not hearsay if...[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive.

Because such a prior consistent statement is not hearsay, it is admissible both to bolster the credibility of the declarant after her credibility has been attacked and as substantive evidence, i.e., to prove the truth of the matter asserted in the statement. Therefore, it is difficult for an appellate court to find plain error when the trial court erroneously finds that an alleged victim's statement qualified as a prior consistent statement. And yet, that is exactly what the Court of Appeals of Ohio, Eighth District, found in its recent opinion in State v. Rosa, 2010 WL 2007199 (Ohio App. 8 Dist. 2010).

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

Sunday, June 13, 2010

Refreshment Refresher: Air Force Court Of Criminal Appeals Finds Proper Procedure Followed In Rule 612 Refreshment Of Recollection

Like its federal counterpart, Military Rule of Evidence 612 permits an attorney to refresh a witness' recollection with a "writing," with courts liberally construing the word "writing" to include basically anything (e.g., a photograph, food, or a piece of music). But what if opposing counsel's strategy is to attack a witness' ability to recall details? Can the attorney still refresh that witness' recollection? And what is the generally accepted manner by which counsel may refresh a witness' recollection? Those were the questions answered by the United States Air Force Court of Criminal Appeals in its recent opinion in United States v. Berry, 2010 WL 2265612 (A.F.Ct.Crim.App. 2010).

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