Saturday, July 3, 2010
Faith No More: Court Of Appeals Of Ohio Affirms Best Evidence Ruling Based On Lack Of Bad Faith By Police
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.
And, as the recent opinion of the Court of Appeals of Ohio, Ninth District, in State v. Moultry, 2010 WL 2622449 (Ohio App. 9 Dist. 2010), makes clear, this latter rule explains why evidence is almost never excluded under the Best Evidence Rule.
Friday, July 2, 2010
Is There A Doctor In The Courtroom? D.C. Court Of Appeals Opinion Reveals That D.C. Courts Have Adopted Federal Rule Of Evidence 703
Federal Rule of Evidence 703 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 in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
While the District of Columbia does not have codified rules of evidence, the recent opinion in In re A.B., 2010 WL 2604668 (D.C. 2010), makes clear that the District of Columbia Court of Appeals has adopted this Rule in case law and that it permits a physician expert to rely on reports and opinions from nurses, technicians and other doctors in formulating her opinion.
Thursday, July 1, 2010
Book 'Em Danno!: Court Of Appeals Of Indiana Notes That Police Records Created In Connection With Routine Booking Procedures Are Admissible Under Rule 803(8)
Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Indiana Rule of Evidence 803(8) is somewhat different. It provides that
Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law [are admissible as an exception to the rule against hearsay. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.
As the recent opinion of the Court of Appeals of Indiana in Fowler v. State, 2010 WL 2605034 (Ind.App. 2010), makes clear, however, Indiana courts look to federal case law and the law of other states concerning the meaning of 803(8), and the public records exception permits admission of police records created in connection with routine booking procedures.
Wednesday, June 30, 2010
Demonstrably Durable: Indiana Case Reveals Indiana Courts Still Recognize Demonstrably False Accusation Exception To Rape Shield Rule
"Under common law, evidence of prior false allegations of sexual misconduct is admissible if the allegation was demonstrably false and similar to that with which the defendant was charged, or if the complaining witness has admitted that the prior accusation was false." Jack Kenney, Prior False Allegations of Sexual Misconduct, Other Holdings 41-JUN Res Gestae 30, 30 (1998).
The recent opinion of the Court of Appeals of Indiana in Wells v. State, 2010 WL 2396283 (Ind.App. 2010), reveals that Indiana courts still recognize this common law rule as an exception to Indiana's rape shield rule and the unlikelihood that defendants will be able to use it to their advantage.
Tuesday, June 29, 2010
Without Prejudice: Supreme Court Of Montana Allows Jury Impeachment Regarding Internet Research, Upholds Verdict
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 or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
However, as an exception to this subdivision, a juror may testify and an affidavit or evidence of any kind be received as to any matter or statement concerning only the following questions, whether occurring during the course of the jury's deliberations or not: (1) whether extraneous prejudicial information was improperly brought to the jury's attention; or (2) whether any outside influence was brought to bear upon any juror; or (3) whether any juror has been induced to assent to any general or special verdict, or finding on any question submitted to them by the court, by a resort to the determination of chance.
As I have noted previously, information does not need to appear overtly prejudicial to be considered extraneous prejudicial information for Rule 606(b) purposes, meaning that a dictionary definition of a legal term can be extraneous prejudicial information. Of course, when that (internet) dictionary definition is the same as the legal definition, a juror's use of a dictionary is unlikely to result in a new trial as the recent opinion of the Supreme Court of Montana in Stebner v. Associated Materials, Inc., 2010 WL 2509626 (Mont. 2010), makes clear.
Monday, June 28, 2010
Tanner '87: Court Of Criminal Appeals Of Tennessee Precludes Jury Impeachment Regarding Allegations Of Juror Intoxication
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 any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.
In its landmark opinion in Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court found that juror intoxication does not constitute an improper outside influence, with Justice O'Connor famously concluding, "However severe their effect and improper their use, drugs or alcohol voluntarily ingested by a juror seems no more an 'outside influence' than a virus, poorly prepared food, or a lack of sleep." Based upon this ruling, the defendant in State v. Haynes, 2010 WL 2473298 (Tenn.Crim.App. 2010), had no chance of success.
Sunday, June 27, 2010
By Invitation Only: Court Of Appeals Of Tennessee Affirmes Terimination Of Parental Rights Based On Invited Error Doctrine
Under the invited error doctrine, a party is not permitted to take advantage of an error which he himself invited or induced the trial court to make. Although the Court of Appeals of Tennessee did not mention this doctrine by name, it clearly applied it in its recent opinion in In re Corey N.A., 2010 WL 2490758 (Tenn.Ct.App. 2010).