EvidenceProf Blog

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

Saturday, August 28, 2010

Let's (Not) Go To The Tape: First Circuit Notes That Rule Of Completeness Doesn't Apply To Unrecorded Oral Statements

Federal Rule of Evidence 106, the "rule of completeness," provides that

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

As the text of the Rule and the recent opinion of the First Circuit in United States v. Verdugo, 2010 WL 3260805 (1st Cir. 2010), make clear, the triggering event for application of Rule 106 is the admission of a writing or recorded statement (or part thereof); the Rule is not triggered by the introduction of testimony about unrecorded oral statements.

Continue reading

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

Friday, August 27, 2010

Crimes And Misdemeanors? Arizona Court Implies Drug Convictions Can Qualify For Rule 609 Impeachment Based On Statutory Amendment

Like its federal counterpart, Arizona Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted....

So, let's say that a defendant is convicted under a statute that mandates a sentence of probation, rather than imprisonment, for first-time convictions of personal possession or use of controlled substances or drug paraphernalia. But let's say that the statute also allows courts to impose additional probation conditions, including incarceration, for probation violations regarding court-ordered drug treatment, and courts can revoke probation for failure or refusal to participate in drug treatment. Could the conviction be admissible under Arizona Rule of Evidence 609(a)(1)? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Hatch, 2010 WL 3310267 (Ariz.App. Div. 1 2010), the answer seems to be "yes." I disagree.

Continue reading

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

Thursday, August 26, 2010

He Ain't Heavy, He's My Brother: Court Of Appeals Of Minnesota Concludes Jurors Would Have Ignored Brother's Character Testimony In Mercy Rule Appeal

Like its federal counterpart, Minnesota Rule of Evidence 404(a)(1) 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:

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same....

In its recent opinion in State v. Pak, 2010 WL 3304693 (Minn.App. 2010), the Court of Appeals of Minnesota correctly found that the trial court erred in failing to admit evidence under this so-called "mercy rule," but I feel like it went too far in finding this error to be harmless.

Continue reading

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

Wednesday, August 25, 2010

It Was(n't) A Privilege?: Eastern District Of Wisconsin Finds Rule 408 Didn't Create A Privilege

Federal Rule of Evidence 408 states:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

So, does Rule 408 merely deem evidence of settlement negotiations inadmissible at trial (when offered for certain purposes), or does it create an evidentiary privilege protecting such evidence? According to the recent opinion of the United States District Court for the Eastern District of Wisconsin in Thermal Design, Inc. v. Guardian Bldg. Products, Inc., 2010 3238921 (E.D. Wis. 2010), Rule 408 does not create a privilege, but you'd be hard pressed to explain why the court reached this conclusion.

Continue reading

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

Tuesday, August 24, 2010

And No Religion Too: Fourth Circuit Fails To Find Religious Impeachment Constitutes Plain Error

Federal Rule of Evidence 610 provides that

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

At the start of the government's cross-examination of a criminal defendant, the following exchange takes place:

The Government: Mr. Munir, you swore on the Bible. Are you a Christian?

Defendant: I'm Islam, but I speak a lot of the Bible too.

After the defendant is convicted, he appeals, claiming, inter alia, that this question violated Federal Rule of Evidence 610, and the government responds that the question was designed to ensure that the defendant took his oath seriously, not to impeach his credibility per se. How should the court rule? According to the recent opinion of the Fourth Circuit in United States v. Anwari, 2010 WL 3262224 (4th Cir. 2010), the court should rule in favor of the government, at least if the defendant did not object to the question.

Continue reading

August 24, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, August 23, 2010

There Will Be Blood: Ninth Circuit Case Raises Question Of Whether Biblical Passages Constitute Extraneous Prejudicial Information Under Rule 606(b)

Federal Rule of Evidence 606(b) provides that

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 to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

So, let's say that a defendant is on trial for murder and during the sentencing phase of trial a juror studies the Bible, finds Genesis 9:6, which states that "[w]ho so sheddeth man's blood by man shall his blood be shed," and reads that passage to other jurors. After the jury sentences the defendant to death, can a juror impeach the verdict based upon this (mis)conduct? According to the recent opinion of the Ninth Circuit in Crittenden v. Ayres, 2010 WL 3274506 (9th Cir. 2010), the answer is "maybe," but the sentence won't be overturned.

Continue reading

August 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, August 22, 2010

Instant Recall: Supreme Court Of California Finds Statement Made Three Months After Event Qualified As Recorded Recollection

Like Federal Rule of Evidence 803(5), California Evidence Code Section 1237 provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made

(i) by the witness himself or under his direction or

(ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

So, when is the fact recorded fresh in the witness' memory? Seconds later? Minutes later? Hours? Weeks? Months? Years? According to the recent opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010), even facts recorded years after they occurred can qualify as recorded recollections under California Evidence Code Section 1237. I disagree.

Continue reading

August 22, 2010 | Permalink | Comments (0) | TrackBack (0)