EvidenceProf Blog

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

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Saturday, September 25, 2010

Youthful Indiscretions: Court Of Appeals Of Washington Finds Juvenile Adjudications Inadmissible To Impeach Prosecution Witness

Like its federal counterpart, Washington Rule of Evidence 609 provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a finding of guilt in a juvenile offense proceeding of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.

I thought that the Court of Appeals of Washington, Division One, addressed a case in which a juvenile adjudication should have been deemed admissible in its recent opinion in State v. Jones, 2010 WL 3490255 (Wash.App. Div. 1 2010). The court disagreed.

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

Friday, September 24, 2010

State Your Reasoning: Court Of Appeals Of North Carolina Finds Trial Court Failed To Conduct Proper Rule 609(b) Analysis

Like its federal counterpart, North Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 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.

Rule 609(b) flips the typical Rule 403 balancing test, which deems evidence admissible as long as its probative value is not substantially outweighed by its prejudicial effect. It also requires trial courts to state specifically the facts and circumstances which led it to conclude that a more-than-ten-year-old conviction should be admissible for impeachment purposes. And, according to the opinion of the Court of Appeals of North Carolina in State v. Denton, 2010 WL 3633457 (N.C.App. 2010), a North Carolina trial court recently erred in applying the second aspect of Rule 609(b) while the prosecution's argument on appeal misstated the first aspect of the Rule.

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

Thursday, September 23, 2010

The Profile Doesn't Fit The Profile: Fifth Circuit Addresses Admissibility Of Drug Courier Profile Evidence Under Rule 704(b)

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

So, is drug courier profile evidence admissible under Rule 704(b)? That was the question addressed by the Fifth Circuit in its recent opinion in United States v. Gonzalez-Rodriguez, 2010 WL 3636986 (5th Cir. 2010).

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

Wednesday, September 22, 2010

Opinion Of Interest: Eleventh Circuit Affirmed Statement Against Interest Ruling In Drug Deal Appeal

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

Of course, for a statement to be deemed a "statement against interest under Rule 804(b)(3), it must be clear that the statement was indeed against the declarant's interest, which was the problem for the appellant in the recent opinion of the Eleventh Circuit in United States v. Huerta, 2010 WL 3638789 (11th Cir. 2010).

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

Tuesday, September 21, 2010

The Informant!: Court Of Appeals Of Texas Opinion Lays Out Test For Exception To Informant Exception

Texas Rule of Evidence 508(a), Texas' informant privilege, provides that

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

That said, there is an exception to this privilege contained in Texas Rule of Evidence 508(c)(2), which provides that

If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.

So, how exactly does this exception apply in practice? The recent opinion of the Court of Appeals of Texas, San Antonio, in Morin v. State, 2010 WL 3582382 (Tex.App.-San Antonio 2010), provides a pretty good indication.

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September 21, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, September 20, 2010

Article Of Interest: Social Networking and Workers' Compensation Law at the Crossroads

The question of whether and to what extent social networking evidence should be admissible is relatively new and has led to some interesting initial cases addressed on this blog (see here, here, here, here, and here). Now, it has led to an interesting article as well: Social Networking and Workers' Compensation Law at the Crossroads (forthcoming, Pace Law Review) by Professor Gregory M. Duhl of the William Mitchell College of Law and Jaclyn S. Millner of Fitch, Johnson, Larson & Held

According to the abstract:

Over the past decade, social networking has increasingly influenced the practice of both civil and criminal law. One way to illustrate those influences is to examine a “system” of laws and the parties and lawyers in that system. In this article, we examine how social networking has influenced workers’ compensation law, looking at, in particular, the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems.

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September 20, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, September 19, 2010

Primary Motive: Court Of Appeals Of Arizona Finds Former Testimony Exception Applied To Bond Hearing Testimony

Arizona Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Former testimony in criminal actions or proceedings as provided in Rule 19.3(c), Rules of Criminal
Procedure.

In turn, Rule 19.3(c) provides that

(1) Admissibility. Statements made under oath by a party or witness during a previous judicial proceeding or a deposition under Rule 15.3 shall be admissible in evidence if:

(i) The party against whom the former testimony is offered was a party to the action or proceeding during which a statement was given and had the right and opportunity to cross-examine the declarant with an interest and motive similar to that which the party now has (no person who was unrepresented by counsel at the proceeding during which a statement was made shall be deemed to have had the right and opportunity to cross-examine the declarant, unless such representation was waived) and

(ii) The declarant is unavailable as a witness, or is present and subject to cross-examination.

So, does a criminal defendant have an interest and motive to cross-examine a witness at a hearing to hold him without bond that is similar to the interest and motive that he has to cross-examine the witness at his criminal trial? According to the recent opinion of the Arizona Court of Appeals, Division 1 in State v. Acuna, 2010 WL 3597233 (Ariz.App. Div. 1 2010), the answer is "yes."

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September 19, 2010 | Permalink | Comments (0) | TrackBack (0)