EvidenceProf Blog

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

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Saturday, July 10, 2010

No Prior Knowledge: Supreme Court Of Arizona Finds Rule 407 Applies Even If Party Lacks Knowledge Of Prior Event

Like its federal counterpart, Arizona Rule of Evidence 407 provides that

When, after an event, measures are taken, which if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But does the Rule apply even if the party took such measures without knowledge of, or for reasons unrelated to, a prior event? That was the question addressed by the recent opinion of the Supreme Court of Arizona in its recent opinion in Johnson v. State, Dept. of Transp., 2010 WL 2680379 (Ariz. 2010).

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

Friday, July 9, 2010

Grand Theft Auto: Court Of Appeals Of North Carolina Finds Car Pricing Guide Evidence Admissible Under Rule 803(17)

Back in 2008, I posted an entry about the United States Bankruptcy Court for the District of Maine finding that evidence from the Kelley Blue Book is admissible under Federal Rule of Evidence 803(17), which provides an exception to the rule against hearsay for

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

The recent opinion of the Court of Appeals of North Carolina in State v. Dallas, 2010 WL 2650394 (N.C.App. 2010), reveals that courts have reached the same conclusion with regard to evidence from the NADA pricing guide.

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

Thursday, July 8, 2010

Essential Reading: Supreme Court Of Iowa Implies That Victim's Violent Character Is Essential To Self-Defense Claim

Like its federal counterpart, Iowa Rule of Evidence 5.405(a) provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

That said, like its federal counterpartIowa Rule of Evidence 5.405(b) provides that

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of the person's conduct.

And under both Federal Rule of Evidence 404(a)(2) and Iowa Rule of Evidence 5.404(a)(2), a criminal defendant can present evidence of a pertinent character trait of the alleged victim. So, assume that a defendant is charged with domestic abuse assault and willful injury. And assume that the defendant claims self-defense. Is the alleged victim's character for violence an essential element of the defendant's defense, permitting him to prove the alleged victim's violence through specific instance evidence? According to the vast majority of courts, the answer is "no."  The recent opinion of the Supreme Court of Iowa in State v. Cashen, 2010 WL 2629827 (Iowa 2010), however, strongly implies that the answer is "yes."

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

Wednesday, July 7, 2010

This Is A Recording: Supreme Court Of Minnesota Answers Several Questions Regarding Admissibility Of Audio Recordings Under Rule 803(5)

Like its federal counterpart, Minnesota Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

In its recent opinion in State v. Stone, 2010 WL 2609430 (Minn. 2010), the Supreme Court of Minnesota answered two important questions regarding this recorded recollection rule and didn't have to answer a third.

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

Tuesday, July 6, 2010

Designated Hitter: Supreme Court Of North Dakota Deems Pre-Sequestration Designation The "Better Practice" Under Rule 615

Similar to its federal counterpart, North Dakota Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order on its own motion. This rule does not authorize exclusion of (i) a party who is a natural person, or (ii) an officer or employee of a party that is not a natural person designated as its representative by its attorney, or (iii) a person whose presence is shown by a party to be essential to the presentation of the party's caused.

It is well established under both Federal Rule of Evidence 615 and state counterparts that the government's case agent can qualify as "an officer or employee of a party that is not a natural person designated as its representative by its attorney." But what if the government doesn't designate its case agent as its representative at the time that the defendant moves for sequestration? That was the question kind of answered by the Supreme Court of North Dakota in its recent opinion in State v. Wanner, 2010 WL 2598296 (N.D. 2010).

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July 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, July 5, 2010

Real Life "Community": Judge Denies Mistrial After Juror's Abortionist Comment, Orders Defendant-Doc To Obtain GED

A doctor is charged with the murder of his ex-wife. His first trial ends when the jury deadlocked, with eleven members voting for acquittal and one for conviction. During voir dire of prospective jurors for the doctor's second murder trial, panel members are asked whether they could reach a decision based solely on the evidence. One juror responds, "Every man is entitled to a fair trial, but when [the doctor] left here he became an abortionist." Defense counsel moves for a mistrial, but the trial court denies the motion. The jury finds the doctor guilty of manslaughter, and the trial court sentences him to 20 years in prison and orders him to pay a $10,000 fine and obtain a GED. Did the trial court act correctly? This was the question faced by the Supreme Court of Mississippi in its recent opinion in DeHenre v. State, 2010 WL 2609458 (Miss. 2010), possibly the weirdest case I've ever seen.

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

Sunday, July 4, 2010

Balancing Act: Court Of Appeals Of Iowa Uses Incorrect Reasoning In Upholding Trial Court's Impeachment Ruling

Like its federal counterpart, Iowa Rule of Evidence 5.609(a)(1) provides that

For the purpose of attacking the credibility of a witness:

(1) Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

Meanwhile, like its federal counterpart, Iowa Rule of Evidence 5.403 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.

Based upon the interplay between these two rules, it is clear that the Court of Appeals of Iowa erred in its reasoning in its recent opinion in State v. Rose, 2010 WL 2598370 (Iowa.App. 2010), even though it might have reached the correct conclusion.

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