Saturday, July 24, 2010
Conspiracy Theory: First Circuit Finds Co-Conspirator Admissions Present No Problems Under Crawford & Bruton
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. And, in Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that when there is a joint trial of a defendant and a co-defendant, the admission into evidence of the non-testifying co-defendant's out-of-court confession violates the Confrontation Clause of the Sixth Amendment if the confession incriminates the other defendant. As the recent opinion of the First Circuit in United States v. De La Paz-Rentas, 2010 WL 2813810 (1st Cir. 2010), makes clear, however, if a statement qualifies as a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), it does not present any problems under either Crawford or Bruton.
Friday, July 23, 2010
A Foolish Consistency?: Minnesota Opinion Reveals Three Factor Test Minnesota Courts Use To Determine Admissibility Of Prior Consistent Statements
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...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness....
And, as the recent opinion of the Court of Appeals of Minnesota in State v. Morris, 2010 WL 2813345 (Minn.App. 2010), makes clear, courts in Minnesota apply a three factor test for determining whether a statement qualifies as a prior consistent statement under this Rule.
Thursday, July 22, 2010
Ten Years Have Got Behind You: Tennessee Case Is Rare Case In Which Defendant's Remote Conviction Is Admissible Under Rule 609(b)
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and 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.
Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.
In other words, convictions that are more than ten years old should rarely be admitted as impeachment evidence, and they should almost never be admitted against criminal defendants. The recent opinion of the Court of Criminal Appeals of Tennessee in State v. Byington, 2010 WL 2812664 (Tenn.Crim.App. 2010), however, presents one of the rare cases in which such evidence is admissible against a criminal defendant: when the subject conviction is a perjury conviction that is only slightly more than ten years old and that bears no resemblance to the crime charged.
Wednesday, July 21, 2010
You'll Shoot Your Eye Out: Texas Case Involving BB Gun Stickup Reveals Basics Of Texas Rule Of Evidence 705(b)
Federal Rule of Evidence 705 provides that
The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.
Texas Rule of Evidence 705(a) is similar. It provides that
The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
Texas also, however, has Texas Rule of Evidence 705(b), which provides that
Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.
And, as the recent opinion of the Court of Appeals of Texas, Amarillo, in Blackburn v. State, 2010 WL 2802186 (Tex.App.-Amarillo 2010), makes clear, Rule 705(b) is mandatory.
Tuesday, July 20, 2010
Hired Gun: Court Of Appeals Of Utah Finds Evidence That Expert Was Hired By Insurance Company Inadmissible
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Of course, even when evidence of liability insurance is offered for a permissible purpose under Rule 411, it is still subject to the balancing test prescribed by Federal Rule of Evidence 403 and Utah Rule of Evidence 403, which indicates 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.
So, is evidence that an expert was hired by the defendant's insurance company admissible under Rule 411 and 403? According to the recent opinion of the Court of Appeals of Utah in Kearl v. Okelberry, 2010 WL 2784593 (Utah App. 2010), the answer is "no."
Monday, July 19, 2010
What Can Brown Do For You?: First Circuit Upholds Hearsay Ruling Based Upon Defendant's Failure To Prove Declarant Unavailability
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true.
In order for a party to be able to introduce such a statement against interest, however, the party must be able to prove that the declarant is "unavailable" to testify at trial as defined in Federal Rule of Evidence 804(a). This latter requirement was the problem for the defendant in the recent opinion of the First Circuit in United States v. Weekes, 2010 WL 2704610 (1st Cir. 2010).
Sunday, July 18, 2010
A Bit Preliminary: Court Of Appeals Of Michigan Deals Preliminary Examination Testimony Admissible Under Former Testimony Exception
Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.
A defendant is charged with murder. At the preliminary examination, he cross-examines an alleged eyewitness to that murder. At trial, the eyewitness invokes her Fifth Amendment privilege against self-incrimination and refuses to testify. Should her testimony at the preliminary examination be admissible under Michigan Rule of Evidence 804(b)(1)? According to the recent opinion of the Court of Appeals of Michigan in People v. Hadley, 2010 WL 2757143 (Mich.App. 2010), the answer is "yes." I disagree.