EvidenceProf Blog

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

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Saturday, July 31, 2010

Going Into Withdrawl: Eleventh Circuit Finds Rule 410(1) Inapplicable In Immigration Appeal

Federal Rule of Evidence 410(1) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn

As the recent opinion of the Eleventh Circuit in Garces v. U.S. Attorney General, 2010 WL 2899024 (11th Cir. 2010), makes clear, however, this Rule only holds that a withdrawn guilty plea is inadmissible in a later criminal trial for the same offense, and the Rule, like all Federal Rules of Evidence, does not apply to administrative proceedings.

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July 31, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, July 30, 2010

Complete Reversal: Military Court Sets Aside Sexual Assault Conviction Based On Confessions Rule Of Completeness

Like its federal counterpart, Military Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require that party at that time to introduce any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Unlike the Federal Rules of Evidence, however, the Military Rules of Evidence also have a "rule of completeness," Military Rule of Evidence 304(h)(2), dealing specifically with confessions, which provides that

If only part of an alleged admission or confession is introduced against the accused, the defense, by cross-examination or otherwise, may introduce the remaining portions of the statement.

The recent opinion of the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Foisy, 2010 WL 2824964 (N.M.Ct.Crim.App. 2010), does a good job of laying out how military courts apply this latter Rule.

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July 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 29, 2010

A History Of Violence: Court Of Appeals Of Tennessee Makes Odd Comment About Violent Felonies In Rule 609 Ruling

Like its federal counterpart, Tennessee Rule of Evidence 609 permits a prosecutor to impeach a defendant through evidence of the defendant's prior conviction if the prosecutor can prove that the probative value of the conviction outweighs its prejudicial effect. What the Court of Criminal Appeals of Tennessee seems to have missed in its recent opinion in State v. Parham, 2010 WL 2898785 (Tenn.Crim.App. 2010), is the relevant question is how probative the prior conviction is on the issue of the defendant's credibility as a witness.

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July 29, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 28, 2010

Make Me Whole, Take 5: Court Of Appeals Of Minnesota Issues Another Ridiculous Opinion Under "Whole Person" Impeachment Theory

I have done a couple of previous posts (herehere, here, and here) about Minnesota's wrongheaded "whole person" approach to felony conviction impeachment, and I am going to continue posting about it until Minnesota courts abandon this horribly misguided approach. The latest example of Minnesota's miscarriage of justice is the opinion of the Court of Appeals of Minnesota in State v. James, 2010 WL 2899115 (Minn.App. 2010).

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July 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 27, 2010

Judge, Jury, And Witness: Court Of Appeals Of Texas Notes That Rule 605 Covers The Functional Equivalent Of Witness Testimony

Like its federal counterpart, Texas Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

And, as the recent opinion of the Court of Appeals of Texas, Waco, in Marriott v. State, 2010 WL 2869781 (Tex.App.-Waco 2010), makes clear, Rule 605 precludes not only judicial testimony but also judicial statements of fact that are the "functional equivalent of witness testimony."

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July 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, July 26, 2010

Bad Reputation: Alaska Case Reveals Differences Between Federal And Alaska Rules Of Evidence On Character/Reputation Evidence

Federal Rule of Evidence 404(a)(2) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:....

In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor.

Meanwhile, Alaska Rule of Evidence 404(a)(2) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except:

Evidence of a relevant trait of character of a victim of crime offered by an accused, or by the prosecution to rebut the same, or evidence of a relevant character trait of an accused or of a character trait for peacefulness of the victim offered by the prosecution in a case to rebut evidence that the victim was the first aggressor....

The recent opinion of the Court of Appeals of Alaska in Proctor v. State, 2010 WL 2870106 (Alaska App. 2010), reveals the important difference between these rules and a possible difference between Federal Rule of Evidence 405(a) and Alaska Rule of Evidence 405(a) regarding the admissibility of reputation evidence.

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

Sunday, July 25, 2010

Plain Justice: Court Of Appeals Of Minnesota Finds No Plain Error In Trial Court's Failure To Admit Statement Under Residual Exception

Like its federal counterpart, Minnesota Rule of Evidence 807 provides an exception to the rule against hearsay for

A statement not specifically covered by rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party, sufficiently in advance of the trial or hearing, to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name, address and present whereabouts of the declarant.

And it is well established under Federal Rule of Evidence 103(d) and Minnesota Rule of Evidence 103(d) that if a party does not raise an issue at trial but does raise it on appeal, the appellate court can reverse if the trial court committed plain error affecting substantial rights. In its recent opinion in State v. Martin, 2010 WL 2813485 (Minn.App. 2010), the Court of Appeals of Minnesota found that the trial court did not commit plain error in failing to admit a statement that the defendant claimed was admissible under Minnesota Rule of Evidence 807 for the first time on appeal. My question is whether a court could ever find plain error under such circumstances.

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