EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, September 4, 2010

Avoiding A Confrontation: Supreme Court Of Minnesota Notes That Co-Conspirator Admissions Aren't Testimonial

Similar to federal counterpart, Minnesota Rule of Evidence 801(d)(2)(E) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of the party. In order to have a coconspirator's declaration admitted, there must be a showing, by a preponderance of the evidence, (i) that there was a conspiracy involving both the declarant and the party against whom the statement is offered, and (ii) that the statement was made in the course of and in furtherance of the conspiracy.

Meanwhile, 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. In State v. Larson, 2010 WL 3430866 (Minn. 2010), the defendant appealed from his murder conviction, claiming, inter alia, that the trial court erred in allowing the prosecutor to admit co-conspirator admissions made by available declarants who did not testify at his trial. The Supreme Court of Minnesota correctly disagreed.

Continue reading

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

Friday, September 3, 2010

Undisputed: Court Of Appeals Of Tennessee Finds Statements Made During Court-Ordered ADR Covered By Rule 408

Like its federal counterpart, Tennessee Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering to furnish or (2) accepting or offering to accept a valuable consideration in compromising or attempting to compromise a claim, whether in the present litigation or related litigation, which claim was disputed or was reasonably expected to be disputed as to either validity or amount, is not admissible to prove liability for or invalidity of a civil claim or its amount or a criminal charge or its punishment. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence actually obtained during discovery 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; however, a party may not be impeached by a prior inconsistent statement made in compromise negotiations.

So, does Rule 408 cover statements made during court-ordered ADR? According to the recent opinion of the Court of Appeals of Tennessee in Andrews v. Andrews, 2010 WL 3398826 (Tenn.Ct.App. 2010), the answer is "yes."

Continue reading

September 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 2, 2010

What's My Purpose?: Opinion Reveals Criteria Washington Courts Use In Determining Whether Statements Are Testimonial

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. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that 

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

The Supreme Court, however, still has not clarified exactly what factors courts should consider in determining whether a statement is "testimonial." That has left lower courts to their own devices, and the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Cason, 2010 WL 3398522 (Wash.App. Div. 1 2010), reveals the criteria that Washington courts use to determine whether a statement is "testimonial."

Continue reading

September 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 1, 2010

Where There's A Will(iam's): Florida Opinion Reveals Florida Counterpart To Federal Rule Of Evidence 414

Federal Rule of Evidence 414(a) provides that

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

This Rule was created by the Violent Crime Control and Law Enforcement Act of 1994. Florida's counterpart to Rule 414(a) is section 90.404(2)(b)1, Florida Statutes, which provides that

In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant's commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.  

And, as the recent opinion of the District Court of Appeal of Florida, Fifth District, in Arrascue v. State, 2010 WL 3359371 (Fla.App. 5 Dist. 2010), makes clear, Florida's rule was in place well before its federal counterpart.

Continue reading

September 1, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 31, 2010

Keystone Case: Eastern District Of Pennsylvania Engages in Confusing Conviction Impeachment Analysis

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless 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. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Now, take a look at the recent opinion of the United States District Court for the Eastern District of Pennsylvania in United States v. Bellinger, 2010 WL 3364335 (E.D. Pa. 2010), and see if you think that the court made the right ruling under Rule 609(b).

Continue reading

August 31, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, August 30, 2010

Modern Hatfield & McCoy: Court Of Appeals Of Kentucky Notes Differences Between Rules 803(6) & (8) In Boundary Dispute

Like its federal counterpart, Kentucky Rule of Evidence 803(8) provides an exception to rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

And, like its federal counterpart, Kentucky Rule of Evidence 803(6) provides an exception to rule against hearsay for

Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or other data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule:

(A) Investigative reports by police and other law enforcement personnel;

(B) Investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; and

(C) Factual findings offered by the government in criminal cases.

And, as the recent opinion of the Court of Appeals of Kentucky in Owens v. Davies, 2010 WL 3360453 (Ky.App. 2010), makes clear, the foundation requirements under Rule 803(8) are substantially more relaxed than the foundation requirement contained in the business records exception contained in Rule 803(6).

Continue reading

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

Sunday, August 29, 2010

That Was a Long Time Ago: Ohio Appellate Court Reverses Verdict Based Upon Improper Rule 609(B) Ruling

Like its federal counterpart, Ohio Rule of Evidence 609(B) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of community control sanctions, post-release control, or probation, shock probation, parole, or shock parole imposed for that conviction, whichever is the later date, unless 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. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

And, as the recent opinion in Keaton v. Abbruzzese Bros., Inc., 2010 WL 3314342 (Ohio App. 10 Dist. 2010), makes clear, this is a difficult balancing test for parties to pass.

Continue reading

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