EvidenceProf Blog

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

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Saturday, October 23, 2010

Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Prosecution's Impeachment Of Own Witness Was Proper

Like its federal counterpartNorth Carolina Rule of Evidence 607 provides that "[t]he credibility of a witness may be attacked by any party, including the party calling him. Rules such as North Carolina Rule of Evidence 607 were designed to replace the common law voucher rule, which held that a party, in effect, vouched for the credibility of the witnesses it called, meaning that it could not impeach them. A party, however, cannot call a witness for the sole or primary purpose of impeaching a witness, such as when a party calls a witness who it knows will not provide helpful testimony at trial so that the party can impeach the witness with a prior inconsistent statement that it helpful to the party. But how is a court supposed to decide when a party legitimately impeaches its own witness and when a party is using Rule 607 as a subterfuge for putting otherwise inadmissible hearsay before the jury? This was the question addressed by the recent opinion of the Court of Appeals of North Carolina in State v. Gabriel, 2010 WL 4068684 (N.C.App. 2010).

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

Friday, October 22, 2010

Heightened Everything?: Why The Fifth Circuit's "Heightened" Abuse Of Discretion Standard In Criminal Cases Isn't Really Heightened

Templeton argues that the district court abused its discretion when it admitted evidence of his prior cocaine trafficking and his 2004 arrest for cocaine possession. We review the admission of evidence under Federal Rule of Evidence 404(b) under a "heightened" abuse of discretion standard. "Evidence in criminal trials must be strictly relevant to the particular offense charged." United States v. Templeton, 2010 WL 4026122 (5th Cir. 2010).

So, what exactly does this mean? Is this "heightened" abuse of discretion standard different than the (regular) abuse of discretion standard used in civil cases? After my review of case law, my conclusion is that the answer is "no." 

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October 22, 2010 | Permalink | Comments (1) | TrackBack (0)

Thursday, October 21, 2010

Proper Proffer?: Third Circuit Finds No Problem With Proffer Statement Waiving Defendant's Right To Kastigar Hearing

In Kastigar v. United States, 406 U.S. 441 (1972), the Supreme Court held that the Fifth Amendment does not require a grant of transactional immunity before a witness' testimony can be compelled; instead, a grant of use and derivative use testimony is coextensive with the privilege against self-incrimination. Conversely, the Court held that a mere grant of use immunity alone is not coextensive with the privilege. Thus, if the government decides to prosecute a witness who testified under an immunity agreement, the court will hold a Kastigar hearing to determine whether the prosecution is properly based upon independent evidence or whether it is improperly based upon evidence derived from the witness' testimony. 

Meanwhile, Federal Rule of Evidence 410(4) indicates that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

So, can the prosecutor force the defendant and his attorney to sign the following statement to get to the plea bargaining table?:

[T]he government may make derivative use of, and may pursue investigative leads suggested by, statements made or information provided by you or your client. That is:

[a] your client waves any right to challenge such derivative use and agrees that such use is proper; and

[b] your client agrees that Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410 do not govern such derivative use.

This provision eliminates the necessity of a Kastigar hearing at which the government would have to prove that its evidence at trial or other legal proceeding is untainted by statements made or information provided during the “off-the-record” proffer.

According to the recent opinion of the Third Circuit in United States v. Merz, 2010 WL 3965856 (3rd Cir. 2010), the answer is "yes."

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October 21, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 20, 2010

Arm Of The Judiciary: New Jersey Appellate Court Finds Judge's Clarification About Translations Didn't Violate Rule 605

A defendant is charged with armed robbery and related offenses. At trial, a Spanish speaking employee of the store that the defendant allegedly robbed testified through two interpreters that the defendant robbed the store. Thereafter, defense counsel impeaches the employee-witness through testimony that the witness gave during a pretrial hearing, during which he referred to the incident as an "asulto," which a different interpreter translated as an assault. During a lunch recess, the two trial interpreters approach the judge in his chambers and tell him that "asulto," has two meanings, assault and robbery. Over defense counsel's objection, the judge thereafter instructs the jury that the trial interpreters told him about the two meanings of "asulto." Has the judge committed error? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Baylor, 2010 WL 4028585 (N.J.Super.A.D. 2010), the answer is "no." I agree.

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

Tuesday, October 19, 2010

Discovery Channel: Eastern District Of California Notes That Rules Of Evidence Don't Govern Discovery

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, what happens if a party seeks information relating to the opposing party's subsequent remedial measure(s) during discovery? Does the opposing party have to respond to such a discovery request? Well, as the recent opinion of the United States District Court for the Eastern District of California in Bernat v. City of California, 2010 WL 4008361 (E.D. Cal. 2010), makes clear, the answer is likely "yes" because the Federal Rules of Evidence merely govern the admissibility of evidence and do not control pretrial discovery.

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October 19, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, October 18, 2010

This Can('t) Be My Testimony: Supreme Court Of Vermont Finds Judicial "Testimony" Automatically Requires New Trial

Like its federal counterpart, Vermont Rule of Evidence 605 provides that "[a] judge sitting at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Moreover, it is well established that Rule 605 applies not only to statements formally given from the witness stand but also, inter alia, to judges engaging in off-the-record fact gathering. So, when a trial judge violates Rule 605 by engaging in such fact gathering, can an appellate judge deem this violation harmless error? According to the recent opinion of the Supreme Court of Vermont in State v. Gokey, 2010 WL 3934332 (Vt. 2010), the answer is "no."

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

Sunday, October 17, 2010

Darlin' Don't Refrain: Sixth Circuit Finds No Problem With Improperly Timed Admission Of Prior Consistent Statements

Federal Rule of Evidence 801(d)(1)(B) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....

So, what happens if a party introduces a witness' alleged prior consistent statement before the opposing party charges the witness with recent fabrication or improper influence or motive, but the opposing party does later levy such a charge against the witness? That was the question addressed by the recent opinion of the Sixth Circuit in United States v. Wells, 2010 WL 3958647 (6th Cir. 2010).

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