EvidenceProf Blog

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

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Saturday, October 16, 2010

I'll Be The Judge Of That: New Jersey Court Finds No Problem With Lengthy Judicial Interrogation Of Pro Se Defendant

Under New Jersey Rule of Evidence 614, "The judge, in accordance with law and subject to the right of a party to make timely objection, may call a witness and may interrogate any witness." In exercising this authority to interrogate witnesses, however, the judge must be sure to maintain his judicial neutrality and not assume the role of an advocate for either party. In its recent opinion in K.C. v. J.K., 2010 WL 4007554 (N.J.Super.A.D. 2010), the New Jersey Superior Court, Appellate Division, found that a trial judge properly exercised his authority under Rule 614 during his interrogation of a pro se defendant. If the defendant's allegations are true, I disagree.

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

Friday, October 15, 2010

The Accident Experiment: Court Refuses To Grant New Trial Despite Juror Performing Accident Scene "Experiment" In Car Crash Case

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.

So, let's say that that there is a civil action and a trial based upon a car accident at a certain intersection. And let's say that a juror goes to the scene of the car accident and conducts an "experiment" related to the accident. The jury, however, does not discuss the experiment during deliberations. After the verdict is granted, if this experiment is exposed, should a new trial be granted? According to the recent opinion of the United States District Court for the Eastern District of Texas in Swanson v. Roehl Transport, Inc., 2010 WL 3702589 (E.D. Tex. 2010), the answer is "no." I disagree. 

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

Thursday, October 14, 2010

Not Accounting For Externalities: Court Of Appeals Of North Carolina Finds Dictionary Definitions Are Not External Information Under Rule 606(b)

Like its federal counterpart, North Carolina 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

And, as I have previously noted,

Some courts have held that jurors' use of a dictionary to define the elements of a crime or words in jury instruction does not constitute the use of extraneous prejudicial information because their use of the dictionary is for the purpose of defining a legal term rather and does not relate to "facts under deliberation." See, e.g., United States v. Cheyenne, 855 F.2d 566, 568 (8th Cir. 1988).  Other courts have held that jurors' use of a dictionary is not inherently prejudicial but have noted that in rare cases such use can require a new trial.  See, e.g., United States v. Henley, 28 F.3d 1111, 1115-16 (9th Cir. 2001).  Finally, some courts have found that it's quite possible that jurors' use of a dictionary can require a new trial, especially when jurors use the dictionary to define legal terms. See, e.g., Sharrief v. Gerlach, 798 So.2d 646, 652 (Ala. 2001).

As the recent opinion of the Court of Appeals of North Carolina in State v. Patino, 2010 WL 3860847 (N.C.App. 2010), makes clear, North Carolina courts (kind of) fall under the first category of courts.

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

Wednesday, October 13, 2010

My Memory Is Failing Me: California Court Finds Right To Confrontation Preserved Despite "Forgetful" Witness

California Evidence Code Section 240(a)(3) states that

Except as otherwise provided in subdivision (b), "unavailable as a witness" means that the declarant is any of the following:

(3) Dead or unable to attend or to testify at the hearing because of then existing physical or mental illness or infirmity.

And the consequence of a declarant being unavailable as a witness is that certain hearsay statements are admissible under certain exceptions to the rule against hearsay. So, let's say that a declarant takes the witness stand at a criminal defendant's trial and testifies to memory loss. That declarant will be deemed "unavailable" under Section 240(a)(3), potentially allowing for the admission of some of his prior hearsay statements. But does the admission of such statements violate the defendant's rights under the Confrontation Clause? According to the recent opinion of the Court of Appeal, First District, Division 1, California, in In re T.G., 2010 WL 3898052 (Cal.App. 1 Dist. 2010), the answer is "no." As a general proposition, I agree, but I disagree with the court's conclusion in the case before it. 

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

Tuesday, October 12, 2010

Double Take: "The Good Wife" Gets Military Double Jeopardy Issue Right Based On "Dual Sovereignty" Doctrine

Last week's episode of "The Good Wife" was pretty interesting. At the start of the episode, Alicia and Will secure a "not guilty" verdict in Illinois state court for an Army reservist charged with murdering his wife. The reservist is then charged with the same crime in military court, with viewers given the explanation that double jeopardy does not apply. So, did the show get it right? It turns out that the answer is "yes" based upon the "dual sovereignty" doctrine. If you want a full explanation of the doctrine (and a fascinating theory of how it should apply in the international legal context), you should check out the excellent article by SMU Dedman School of Law Professor Anthony J. Colangelo, Double Jeopardy and Multiple Sovereigns: A Jurisdictional Theory, 86 Wash. U. L. Rev. 769 (2009). Here, however, are the basics:

The doctrine "is founded on the...conception of crime as an offense against the sovereignty of the government." It holds that "[w]hen a defendant in a single act violates the (peace and dignity) of two sovereigns by breaking the laws of each, he has committed two distinct 'offences.'" No violation of the prohibition on double jeopardy results from successive prosecutions by different sovereigns, according to the Court, because "by one act [the defendant] has committed two offences, for each of which he is justly punishable." The defendant, in other words, is not being prosecuted twice for the same "offence" if another sovereign successively prosecutes for the same act--even if the second sovereign prosecutes using a law identical to that used in the first prosecution.

So, what does this all mean with regard to the situation in "The Good Wife,"  and why did the show get it right? 

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October 12, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, October 11, 2010

The Long Lead: Court Of Appeals Of Ohio Finds No Problem With Judge Asking Leading Questions To Prosecution's Expert Witness

Federal Rule of Evidence 614(b) provides that "The court may interrogate witnesses, whether called by itself or by a party." Meanwhile, Ohio Rule of Evidence 614(B) makes explicit what is implicit in its federal counterpart. It provides that "The court may interrogate witnesses, in an impartial manner, whether called by itself or by a party." (emphasis added). So, when does the court interrogate witnesses in a partial manner? Apparently not by asking leading questions to the prosecution's expert witness after her testimony has been attacked by defense counsel, at least according to the recent opinion of the Court of Appeals of Ohio, Twelfth District, in its recent opinion in State v. Stout, 2010 WL 3836158 (Ohio App. 12 Dist. 2010).

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

Sunday, October 10, 2010

Little Bribes: Fifth Circuit Finds Bribery Is Per Se A Crime Of Dishonesty Or False Statement For Rule 609(a)(2) Purposes

Federal Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the character for truthfulness of a witness,

(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.

Moreover, the Advisory Committee's Note to Rule 609 provides that crimes of dishonesty or false statement include

crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.

So, what about a conviction for bribery? According to the Fifth Circuit's opinion in United States v. Jefferson, 2010 WL 895040 (5th Cir. 2010), such a conviction also qualifies for admission under Rule 609(a)(2). I'm not sure that I agree. 

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October 10, 2010 | Permalink | Comments (0) | TrackBack (0)