EvidenceProf Blog

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

Saturday, September 11, 2010

I'm Not There: Texas Court Excludes Former Testimony Based On Absence Of Evidence Of Witness Unavailability

Similar to its federal counterpart, Texas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, 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 had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, as with its federal counterpart (and all Rule 804(b) hearsay exceptions), Texas Rule of Evidence 804(b)(1) is only triggered if the witness is "unavailable" to testify as defined in Texas Rule of Evidence 804(a). And it was this latter requirement which presented a problem for the defendant in Williams v. State, 2010 WL 3503939 (Tex.App.-Waco 2010).

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

Friday, September 10, 2010

What's Up Doc?: Connecticut Court Finds Statement About Assault Weapon Admissible Under Hearsay Exception

Like Federal Rule of Evidence 803(4), Section 8-3(5) of the Connecticut Code of Evidence provides an exception to the rule against hearsay for

A statement made for purposes of obtaining a medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to the medical diagnosis or treatment.

So, is a statement by a victim to a plastic and reconstructive surgeon concerning the nature of the weapon used to injure him reasonably pertinent to medical diagnosis or treatment? According to the recent opinion of the Supreme Court of Connecticut Appellate Court of Connecticut in State v. Serrano, 2010 WL 3397460 (Conn.App. 2010), the answer is "yes."

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September 10, 2010 | Permalink | Comments (1) | TrackBack (0)

Thursday, September 9, 2010

Judge, Jury, And interrogator, Take 4: First Circuit Doesn't Reverse Despite Improper Judicial Interrogation

Federal 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.

Conversely, Federal Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party," and Federal Rule of Evidence 614(c) provides that

Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.

In other words, a party does not need to object to judicial testimony to preserve the point for appeal, but a party does need to object to judicial interrogation to preserve the point for appeal (although the party can object outside the presence of the jury). Does this make sense? Let's consider the recent opinion of the First Circuit in United States v. Santana-Perez, 2010 WL 3491143 (1st Cir. 2010).

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September 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 8, 2010

Make Me Whole, Take 6: Minnesota Judge Questions Validity Of Minnesota's "Whole Person" Impeachment Test

Similar to its federal counterpart, Minnesota Rule of Evidence 609(a) 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 only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

In other words, if a witness has a conviction for as crime involving dishonesty or false statement (e.g., perjury, larceny by trick), the conviction is automatically admissible to impeach the witness, i.e., to show that his testimony is not trustworthy. If a witness has a conviction for a crime not involving dishonesty or false statement, the conviction will only be admissible if its probative value for showing that the witness' testimony if not trustworthy outweighs the prejudicial effect of the conviction. Most courts hold that a prior conviction can only be admissible under Rule 609(a) if it is for a crime that has some bearing on witness honesty. As I have noted in several posts (here, herehere, here, and here), Minnesota courts are not among these courts. But, as the recent opinion of the Court of Appeals of Minnesota in State v. Coleman, 2010 WL 3463597 (Minn.App. 2010), some Minnesota judges are starting to challenge the conventional thinking.

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September 8, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 7, 2010

Essential Reading: Tenth Circuit Finds District Court Properly Excluded Character Evidence In Campaign Contributions Appeal

Federal Rule of Evidence 404(a)(1), the mercy rule, 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 - In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

That said, evidence admissible under Rule 404(a)(1) is still subject to Federal Rule of Evidence 405(a), which provides that

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

In other words, if a defendant is charged related to him accepting questionable campaign contributions, he could have a character witnesses testify that, in his opinion, the defendant is honest or that the defendant has a reputation for being honest. But as the recent opinion of the Tenth Circuit in United States v. McMahan, 2010 WL 3446852 (10th Cir. 2010), makes clear, the witness could not testify that the defendant refused to accept questionable campaign contributions in the past.

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September 7, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, September 6, 2010

The Wonder State: Eastern District Of Arkansas Finds Serious Flaw With Arkansas' Rape Shield Rule

This Court views the case as illustrating a serious flaw in Arkansas's criminal justice system, whereby Arkansas applies its rape shield statute in a broad and sweeping fashion without properly focusing on the constitutional rights of the accused. Jackson v. Hobbs, 2010 WL 3397370 (E.D.Ark. 2010).

This was a fairly bold statement by the United States District Court for the Eastern District of Arkansas. So, do the facts back it up?

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September 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 5, 2010

My New Article: Anchors Away: Why the Anchoring Effect Suggests that Judges Should Be Able to Participate in Plea Discussions

Today, I posted my new article, Anchors Away: Why the Anchoring Effect Suggests that Judges Should Be Able to Participate in Plea Discussions, on SSRN. Here is the abstract:

The “anchoring effect” is cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias.

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains. This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.

This completes a summer of plea bargaining research for me, with one of my other projects being my recent article, Deal or No Deal: Why Courts Should Allow Defendants to Present Evidence that They Rejected Favorable Plea Bargains.


September 5, 2010 | Permalink | Comments (2) | TrackBack (0)