EvidenceProf Blog

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

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Saturday, July 17, 2010

Is It Your Recollection?: Florida Court Varies From Prior Florida Precedent In Recorded Recollection Ruling

Like Federal Rule of Evidence 803(5), Section 90.803(5) of the Florida Statutes 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 enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

So, for a recorded recollection to be admissible under this rule, does the declarant need to lay a foundation for its admission by testifying at trial that he or she recorded the statement when the described events were fresh in his or her mind and attesting to the accuracy of the statement?  According to the recent opinion of the District Court of Appeal of Florida, Fifth District, in its recent opinion in Polite v. State, 2010 WL 2787457 (Fla.App. 5 Dist. 2010), the answer is "no," despite prior Florida precedent.

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

Friday, July 16, 2010

Divide And Prejudice?: Arizona Court Finds No Prejudicial Joinder In Sex Abuse Case Based On Rule 413(a)

If a defendant is charged with several unrelated crimes, he has a good chance of having several counts severed based upon prejudicial joinder. In such a case, joinder would be prejudicial because if the defendant were given separate trials for each count, evidence of each alleged crime would likely be inadmissible in every other trial under Federal Rule of Evidence 404. Federal Rule of Evidence 413(a), however, provides that

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

Thus, if a defendant is charged with several unrelated crimes of sexual assault, he will have a tough time proving prejudicial joinder because evidence of each alleged crime would likely be admissible in every other trial under Federal Rule of Evidence 413(a), as was the case with the recent opinion of the United States District Court for the District of Arizona in United States v. Brown, 2010 WL 2771882 (D. Ariz. 2010).

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

Thursday, July 15, 2010

Drunk Dialing: Eighth Circuit Assumes 911 Call Was Improperly Admitted As Excited Utterance Based On Lack Of Personal Knowledge

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.

Meanwhile, Federal Rule of Evidence 602 provides that

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

And, as the recent opinion of the Eighth Circuit in United States v. Erickson, 2010 WL 2721026 (8th Cir. 2010), makes clear, a party cannot introduce an excited utterance unless it establishes that the declarant had personal knowledge of the startling event or condition.

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

Wednesday, July 14, 2010

Northern District Of California Permits Defendants To Interrogate Title IX Plaintiff About Whether She Consented to Teacher’s Sexual Behavior When She Was 15

A plaintiff claims that she was 15 years-old when she was subjected to sexual molestation by her then 38 year-old teacher at a charter school.  Accordingly, she brings a Section 1983 action (1) against the school and its director/principal for failure to train and supervise, and (2) against the teacher for denial of equal protection. She also files a Title IX sex discrimination claim against all three defendants, a state law claim for negligent hiring and supervision against the school, and a state law invasion of privacy claim against the director/principal, who allegedly made a public announcement to the student body, disclosing details of the sexual conduct between the teacher and the plaintiff. During a deposition of the plaintiff, the parties disagree about the proper scope of questioning.  Among other things, defense counsel wants to interrogate the plaintiff about whether she "consented" to the sexual encounters with her teacher and whether the teacher's sexual behavior was "unwelcome" by her. The parties thereafter make their arguments to the court on the issue. How should the court rule? In its recent opinion in Doe v. Willits Unified School Dist., 2010 WL 2524587 (N.D. Cal. 2010), the United States District Court for the Northern District of California permitted such questioning. I strongly disagree.

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

Tuesday, July 13, 2010

Killing Me Softly: Court Of Appeals Of Ohio Case Reveals That Dying Declaration And Excited Utterance Exceptions Are Often Intertwined

Like its federal counterpart, Ohio Rule of Evidence 804(B)(2) provides an exception to the rule against hearsay "[i]n a prosecution for homicide or in a civil action or proceeding" for

a statement made by a declarant, while believing that his or her death was imminent, concerning the cause of what the declarant believed to be his or her impeding death.

And, like its federal counterpart, Ohio 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 Court of Appeals of Ohio, First District, in State v. Washington, 2010 WL 2697078 (Ohio App. 1 Dist. 2010), makes clear, statements covered by the former hearsay exception will almost always also be covered by the latter hearsay exception.

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

Monday, July 12, 2010

Updated Submission Guide for Online Law Review Supplements Posted On SSRN

The fall submission season is almost upon us, and today, I updated my Submission Guide for Online Law Review Supplements. I did not add any new online supplements to my guide, but this version of the guide contains some important changes that some journals made to their submissions guidelines. You can download a copy of the updated guide from SSRN by clicking here.

July 12, 2010 | Permalink | Comments (1) | TrackBack (0)

Georgia (Im)peach(ment): Supreme Court Of Georgia Rejects Due Process Challenge To Felony Impeachment Rule

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under 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 (emphasis added).

Meanwhile, OGCA Section 24-9--84.1(a)(2) provides that

For the purpose of attacking the credibility of a witness, or of the defendant, if the defendant testifies:

(2) Evidence that the defendant has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the defendant was convicted if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant (emphasis added).

And, as the recent opinion of the Supreme Court of Georgia in Childs v. State, 2010 WL 2680587 (Ga. 2010), makes clear, courts have found that both of these rules do not violate defendants' due process rights.

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

Sunday, July 11, 2010

It's Settled: Court Of Appeals Of Minnesota Finds Affidavit Seeking To Vacate Settlement Not Covered By Rule 408

Similar to its federal counterpart, Minnesota Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

And, as the recent opinion of the Court of Appeals of Minnesota in Engle v. Engle, 2010 WL 2650433 (Minn.App. 2010), makes clear, an affidavit seeking to vacate a settlement is not covered by Rule 408.

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