EvidenceProf Blog

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

Saturday, September 18, 2010

Lie To Me: Court Of Appeals Of Arkansas Finds Trial Court Erred In Prior Inconsistent Statement Ruling

Like its federal counterpart, Arkansas Rule of Evidence 613 sets forth the procedure for admitting prior inconsistent statements for impeachment purposes. It provides that

(a)  Examining Witness Concerning Prior Statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.  

(b)  Extrinsic Evidence of Prior Inconsistent Statement of Witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2)

So, let's say that a witness makes a statement during trial and acknowledges that she made a prior inconsistent statement before trial. Can she thereafter be impeached via her prior inconsistent statement under Rule 613? According to the recent opinion of the Court of Appeals of Arkansas in White v. State, 2010 Ark. App. 588 (Ark.App. 2010), the answer is "no." I agree.

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September 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, September 17, 2010

Gasping At Straws: Fourth Circuit Finds Rule 606(b) Doesn't Cover Party's Observation Of Jury's Reaction To Evidence

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.

It is important to note, though, that the Rule only covers a juror's testimony and/or a juror's affidavit, a point not quite made clear by the recent opinion of the Fourth Circuit in Keeshan v. Eau Claire Cooperative Health Centers, Inc., 2010 WL 3556172 (4th Cir. 2010).

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September 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 16, 2010

Domestic Disturbance: Court Of Appeals Of Michigan Case Reveals DV Exception To Character Evidence Proscription In Michigan

Like its federal counterpart, Michigan Rule of Evidence 404(b) provides in relevant part 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....

That said, some states have a domestic violence exception under which the prosecution can present evidence of prior domestic violence to prove the defendant propensity to commit such acts and his likely conformity with that propensity at the time of the crime charged. And, as the recent opinion of the Court of Appeals of Michigan in People v. Branion, 2010 WL 3564746 (Mich.App. 2010), makes clear, Michigan has such an exception.

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September 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 15, 2010

The Marrying Man: Supreme Judicial Court Of Massachusetts Finds Defendant Marrying His Alleged Victim Triggered Forfeiture By Wrongdoing Doctrine

On Monday, I posted an entry about the strangest spousal testimonial privilege case that I have ever seen. In that case, the State filed an order to show cause seeking to enjoin a planned marriage between the defendant and the alleged victim's sister until after the defendant's trial so that the sister could not invoke the spousal testimonial privilege. It took me a mere two days to find a spousal testimonial privilege that topped that one. Here is the question raised by the recent opinion of the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Szerlong, 2010 WL 3530019 (Mass. 2010): Does the forfeiture by wrongdoing doctrine apply when the defendant marries his alleged victim so that she can exercise the spousal testimonial privilege? According to the court, the answer is "yes."

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September 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 14, 2010

Changing Minds: Eighth Circuit Opinion Reveals That Arkansas Courts Admit Insurance-Related Statements Under Rule 803(3)

Like its federal counterpart, Arkansas Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will

So, Rule 803(3) does not cover a declarant's statements related to his will, but does it cover a declarant's oral statements related to his insurance policy? According to many courts, the answer is "no." But, as the recent opinion of the Eighth Circuit in Conseco Life Ins. Co. v. Williams, 2010 WL 3447769 (8th Cir. 2010), makes clear, according to Arkansas courts, the answer is "yes."

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September 14, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, September 13, 2010

Real Housewife Of New Jersey: NJ Court Denies Motion To Enjoin Marriage To Prevent Application Of Spousal Testimonial Privilege

New Jersey Rule of Evidence 501(2) provides that

The spouse of the accused in a criminal action shall not testify in such action except to prove the fact of marriage unless (a) such spouse consents, or (b) the accused is charged with an offense against the spouse, a child of the accused or of the spouse, or a child to whom the accused or the spouse stands in the place of a parent, or (c) such spouse is complainant.

In Matter of Kozlov, 398 A.2d 882 (N.J. 1979), however, the Supreme Court of New Jersey found that a criminal defendant can "pierce" this spousal testimonial privilege if three conditions are satisfied:

(1) there must be a legitimate need for the evidence; (2) the evidence must be relevant and material to the issue before the court; and (3) "by a fair preponderance of the evidence," the party must show "that the information [cannot] be secured from any less intrusive source."

In its recent opinion in State v. Mauti, 2010 WL 3488654 (N.J.SuperA.D. 2010), the Superior Court of New Jersey, Appellate Division, reviewed a trial court opinion permitting the prosecution to pierce the spousal testimonial privilege. Understandably, the court reversed this ruling.

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September 13, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 12, 2010

You've Got Mail: Court Of Appeals Of North Carolina Implies E-Mail Was Properly Authenticated Under Rule 901(b)(4)

Like its federal counterpart, North Carolina Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

And, like its federal counterpart, North Carolina Rule of Evidence 901(b)(4) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(4)     Distinctive Characteristics and the Like. – Appearance, contents, substance, internal  patterns, or other distinctive characteristics, taken in conjunction with circumstances.

And, as the recent opinion of the Court of Appeals of North Carolina in State v. Westrom, 2010 WL 3465716 (N.C.App. 2010), implies, parties should be able to authenticate e-mails under Rule 901(b)(4).

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September 12, 2010 | Permalink | Comments (0) | TrackBack (0)