Saturday, October 2, 2010
Liar, Liar: Supreme Court Of Delaware Finds Witness With Prior Convictions For Crimes Of Dishonesty Was Properly Allowed To Testify
A defendant is on trial for one count each of second degree assault and possession of a deadly weapon during the commission of a felony. A potential witness for the prosecution has several prior convictions for crimes of dishonesty or false statement. Should that witness be allowed to testify against the defendant. As the recent opinion of the Supreme Court of Delaware in Branch v. State, 2010 WL 3756812 (Del.Supr. 2010), makes clear, the answer is "yes." In days past, however, this wasn't always the case.
Friday, October 1, 2010
Superman Didn't Become Superman: Tennessee Court Finds Evidence That Defendant Bought And Wore Superman Shirt Admissible
A defendant is charged with facilitation of first degree murder and the defendant claims as part of his defense that he was "surprised" and "scared" after the subject shooting. If the defendant brags to his friends about the shooting, it is indisputable that the defendant's words could be used against him to rebut his defense and prove his intent. But what about if the defendant purchased and wore a Superman shirt after the shooting. Should such evidence be similarly admissible? I don't think so. In its recent opinion in State c. Garcia, 2010 WL 3766942 (Tenn.Crim.App. 2010), the Court of Criminal Appeals of Tennessee disagreed.
Thursday, September 30, 2010
You're Out Of Your Element: Eighth Circuit Finds Statement Concerning Matter Outside Scope Of Employment Not An Employee Admission
Federal Rule of Evidence 801(d)(2)(D) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship....
The problem for the plaintiffs in the recent opinion of the Eighth Circuit in E.E.O.C. v. Con-Way Freight, Inc., 2010 WL 3655999 (8th Cir. 2010), was that while they had a statement by an employee of the defendant which potentially helped their case, they could not prove that the statement concerned a matter within the scope of his employment.
Wednesday, September 29, 2010
Empty Formalism Is A Vacuum To Be Abhorred: Eighth Circuit Notes That Parties Don't Need To Renew Objections To Definitive In Limine Rulings
A party files a motion in limine seeking to have certain evidence deemed admissible at trial. The court makes a formal ruling deeming the evidence inadmissible at trial. The party objects to this ruling and makes an offer of proof. At trial, does the party need to renew its objection and again make an offer of proof? As the Eighth Circuit artfully put it in its recent opinion in Shelton v. Kennedy Funding, Inc., 2010 WL 3719065 (8th Cir. 2010), the answer used to be "yes" but now it is "no."
Tuesday, September 28, 2010
Tell Me Lies: Court Of Appeals Of Michigan Finds Misdemeanor False Pretenses Conviction Was Properly Admitted For Impeachment Purposes
Michigan 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 not be admitted unless the evidence has been elicited from the witness or established by public record during cross-examination, and(1) the crime contained an element of dishonesty or false statement, or(2) the crime contained an element of theft, and(A) the crime was punishable by imprisonment in excess of one year or death under the law under which the witness was convicted, and(B) the court determines that the evidence has significant probative value on the issue of credibility and, if the witness is the defendant in a criminal trial, the court further determines that the probative value of the evidence outweighs its prejudicial effect.
This Rule is thus actually quite different from Federal Rule of Evidence 609(a), which provides that
For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
As the recent opinion of the Court of Appeals of Michigan in People v. Rondo, 2010 WL 3565245 (Mich.App. 2010), makes clear, however, they are the same in at least one regard: They allow for witnesses to be impeached via misdemeanor convictions resulting from crimes of dishonesty or false statement.
Monday, September 27, 2010
The Giant(s) Of Illinois, Take 3: Supreme Court Of Illinois Approves And Promulgates Illinois Rules Of Evidence
Readers of this blog know about Illinois Supreme Court Chief Justice Thomas R. Fitzgerald and his intention to create Illinois Rules of Evidence. He announced this intention on September 6, 2008 and announced the creation of a Special Committee on Illinois Evidence on November 24, 2008. That Committee delegated to me the task of drafting a report comparing each Federal Rule of Evidence with the corresponding evidentiary principle that Illinois courts had developed in case law to assist the Committee in its creation of Illinois Rules of Evidence. In May 2009, with substantial assistance from John Marshall's Associate Dean for Academic Affairs and Professor Ralph Ruebner and law students Katie Anderson, Timothy Herman, and Jessica Kull, I submitted a 100 page report to the Committee. The Committee then created Proposed Illinois Rules of Evidence, and, in May 2010, there were public hearings regarding the Proposed Rules.
Today, I am happy to announce that the Supreme Court of Illinois has approved and promulgated Illinois Rules of Evidence, which will take effect on January 1, 2011. Here is the Press Release. And here are the Illinois Rules of Evidence along with a Committee Commentary.
(Hat tip to my colleague Mark Wojcik for the link).
As Seen on TV?: SDNY Finds Social Framework Testimony Wouldn’t Help Jurors Because Gender Stereotypes are Exposed on Sitcoms & News Reports
Moreover, the Court agrees with the Minnesota Court of Appeals' reasoning in Ray v. Miller Meester Advertising, Inc., 664 N.W.2d 355 (Minn.Ct.App.2003) wherein the court found that the trial court abused its discretion by admitting Dr. Borgida's testimony because the opinion was unhelpful to the jury. The court noted that “[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”...In addition, the court in Ray observed that “[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”...The Court agrees. E.E.O.C. v. Bloomberg L.P., 2010 WL 3466370 (S.D.N.Y. 2010).
that from approximately February 2002 through the present, Bloomberg engaged in a pattern or practice of unlawful employment practices, including discriminating against Claimants based on sex/pregnancy by: (1) paying them less total compensation after they announced their pregnancy and returned from maternity leave; (2) demoting them in title or in the number of employees directly reporting to them; (3) diminishing their responsibilities and/or replacing them with male employees junior to the Claimants; (4) excluding them from management meetings and otherwise isolating them once they announced their pregnancy and returned from maternity leave; and (5) subjecting them to stereotypes regarding female caregivers when they returned from maternity leave....EEOC further claim[ed] that Bloomberg engaged in unlawful employment practices by retaliating against the named Claimants and other similarly situated female employees who protested the alleged unlawful sex/pregnancy discrimination by reducing their compensation, criticizing their performance, reducing their job opportunities, and threatening to terminate them.
So, let's consider the proposed testimony of Dr. Borgida and the court's ruling and decide whether we agree with the conclusion of the court listed at the top of this post.
Sunday, September 26, 2010
Federal Rule of Evidence 609(a)(1) provides that
For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.
Most courts use a five factor analysis to determine whether convictions are admissible under this Rule. Sometimes, however, that analysis goes badly wrong as was the case with the recent opinion of the United States District Court for the Southern District of Illinois in United States v. Wooten, 2010 WL 3614922 (S.D. Ill. 2010).