EvidenceProf Blog

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

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Saturday, June 26, 2010

Off The Record: Court Of Appeals Of Texas Notes That Rule 609(b) Balancing Doesn't Need To Be Recorded

Like its federal counterpart, Texas 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 of the release of the witness from the confinement imposed for that conviction, whichever is the later date, 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.

And, as the recent opinion of the Court of Appeals of Texas, Beaumont, in Walker v. State, 2010 WL 2533774 (Tex.App.-Beaumont 2010), makes clear, the trial court does not need to create a record indicating that it performed the above balancing test.

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

Friday, June 25, 2010

Just The Facts, Man: D.C. Case Reveals Broadness Of D.C.'s Prior Identification Rule

Federal Rule of Evidence 801(d)(1)(C) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person.

Washington D.C. does not have codified rules of evidence, but D.C. Code Section 14-102(b)(3) provides that

A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is...an identification of a person made after perceiving the person

In other words, as the District of Columbia Court of Appeals found in its recent opinion in Lewis v. United States, 2010 WL 2516135 (D.C. 2010), "FED.R.EVID....is essentially identical to D.C.Code § 14-102(b)." As the court's opinion reveals, though, the D.C. rule may go even farther.

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

Thursday, June 24, 2010

Drive@death?: Florida Appellate Court Finds Trial Court Improperly Applied Doctrine Of Substantial Similarity In Trial Against Mitsubishi

Generally, the doctrine of substantial similarity applies in a products liability claim when a party, most often a plaintiff, attempts to introduce evidence of prior accidents or recreates the accident involving the defendant's product, in order to show notice of defect, magnitude of the danger involved, the defendant's ability to correct a known defect, or the lack of safety for intended uses.

The personal representative of the estate of a decedent sues Mitsubishi, claiming that design defects in the seat belt, seatback, and side window glass of the decedent's Mitsubishi Native caused him to be partially ejected from the vehicle during an accident, causing his death. In response, Mitsubishi seeks to introduce evidence of “301 testing” to show that a variety of seats in different vehicles tested by NHTSA perform in a similar manner to the seat in the Nativa. Should the admissibility of the evidence of the 301 testing depend on the doctrine of substantial similarity? According to the trial court, the answer is "yes." According to the District Court of Appeal of Florida, Fourth District, in its recent opinion in Mitsubishi Motor Corp. v. Laliberte, 2010 WL 2382562 (Fla.App. 4 Dist. 2010), the answer is "no."

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June 24, 2010 | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 23, 2010

Bloody Well Right: Supreme Court Of Arizona Finds 6 Crime Scene Photos Were Properly Admitted

Like its federal counterpart, Arizona Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

The key phrase in this Rule is "substantially outweighed." In other words, even if the probative value of a piece of evidence is slightly or moderately outweighed by the danger of unfair prejudice that it creates, it will still be deemed admissible. This wording helps explains why American courts admit all sorts of gruesome evidence, such as the six crime scene photos deemed admissible by the Supreme Court of Arizona in its recent opinion in State v. Lynch, 2010 WL 2485248 (Ariz. 2010).

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

Tuesday, June 22, 2010

Maxitrial?: First Circuit Finds That Regular Rule 403 Analysis Applies to Rule 415 Rulings

Federal Rule of Evidence 415(a) provides that

(a) In a civil case in which a claim for damages or other relief is predicated on a party's alleged commission of conduct constituting an offense of sexual assault or child molestation, evidence of that party's commission of another offense or offenses of sexual assault or child molestation is admissible and may be considered as provided in Rule 413 and Rule 414 of these rules.

Meanwhile, Federal Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

In its recent opinion in Martínez v. Cui, 2010 WL 2404390 (1st Cir. 2010), the First Circuit addressed an issue that has split the courts: Does Rule 403 apply differently in Rule 415 cases than in other cases. According to many courts, the answer is "yes." According to the First Circuit, the answer is "no."

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

Monday, June 21, 2010

Expert Reliance: Court Of Appeals Of Kentucky Finds Expert Opinion Testimony On Damages Was Properly Based On Inadmissible Hearsay

Kentucky Rule of Evidence 703(a) provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

And, as the recent opinion of the Court of Appeals of Kentucky in Kessler Homes, Inc. v. Petzold, 2010 WL 2427415 (Ky.App. 2010), makes clear, estimates of damages based upon inadmissible hearsay are often admissible under Kentucky Rule of Evidence 703(a) and similar rules.

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

Sunday, June 20, 2010

Plenty Of Time: Tenth Circuit Finds Statement Made Almost 2 Hours After Sexual Assault Qualified As Excited Utterance

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

And, as the recent opinion of the Tenth Circuit in United States v. Smith, 2010 WL 2197524 (10th Cir. 2010), makes clear, even statements made several hours after a startling event or condition can qualify as excited utterances.

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