EvidenceProf Blog

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

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Saturday, October 30, 2010

Come Be My Conspiracy: Eleventh Circuit Finds Co-Conspirator Admission Rule Applies Against Late Arriving Co-Conspirators

Federal Rule of Evidence 801(d)(2)(E) 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...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

But is one co-conspirator's admission admissible against another co-conspirator who had not yet joined the conspiracy at the time that the admission was made? According to the recent opinion of the Eleventh Circuit in United States v. Makarenkov, 2010 WL 4204637 (11th Cir. 2010), the answer is "yes."

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October 30, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, October 29, 2010

"The Wharton Brand": Eastern District Of Pennsylvania Finds Subsequent Remedial Measures Rule Applies To Breach Of Contract Actions In Action Against Penn

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.

Back in September 2009, I posted an entry about the Court of Appeals of Wisconsin finding that Wisconsin's counterpart to Rule 407 did not apply to criminal cases. I disagreed with this conclusion, and I think that the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Reynolds v. University of Pennsylvania, 2010 WL 4187935 (E.D.Pa. 2010), which found that Rule 407 applies to breach of contract actions, exposed the flaw in the reasoning of the Court of Appeals of Wisconsin.

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October 29, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 28, 2010

Article of Interest: Josephine Ross' Blaming the Victim: 'Consent' Within the Fourth Amendment and Rape Law

It used to be that courts applied an objective definition of consent in rape prosecutions. This was because of traditional force and resistance requirements:  

First, courts interpreted the element of force to require that the man overpower the woman or threaten her with death or physical injury. If a woman submitted to subtle forms of coercion, the law would view her submission as consent. Second, common law courts required rape victims to resist unwelcome advances "to the utmost."

As a result, "[i]nstead of crediting the victim's perspective,...court[s] turned the question of consent into a normative question about the quantity and quality of force used by the aggressor." Feminists, however, have been largely successful in getting courts and legislatures to eliminate or relax force and resistance requirements, leading to an increased focus on the alleged victim's subjective state of mind and an increased recognition of individual autonomy as the primary purpose of prohibiting sexual assault.

The converse, however, has occurred with regard to consent in the Fourth Amendment context.

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October 28, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 27, 2010

That's Settled: Eastern District Of Missouri Finds Documents Compiled During Settlement Negotiations Not Covered by Rule 408

Federal Rule of Evidence 408 provides:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

Moreover, it is well established that Rule 408 covers not only statements made during settlement negotiations but also documents prepared for settlement negotiations. As the recent opinion of the United States District Court for the Eastern District of Missouri in Goodman Distribution, Inc. v. Haaf, 2010 WL 4117379 (E.D.Mo. 2010), makes clear, however, the Rule does not cover all documents prepared (or compiled or collected) during settlement negotiations.

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October 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 26, 2010

Avoiding A Confrontation?: Does The Bruton Doctrine Cover Nontestimonial Hearsay After Crawford?

In Bruton v. United States, 391 U.S. 123 (1968), the Supreme Court held that, at a joint trial, a defendant's Sixth Amendment right of confrontation is violated by admitting the confession of a non-testifying codefendant that implicates the defendant, regardless of any limiting instruction given to the jury. In other words, if Carl confesses to Police Officer Peters, "Dan and I robbed the bank," Carl's confession is inadmissible at the joint trial of Carl and Dan for bank robbery unless Carl takes the witness stand. According to the Court, this is not because the introduction of Carl's confession literally would violate Dan's right "to be confronted with the witnesses against him...." 

Instead, the Court correctly noted that a confession such as Carl's confession is technically only admissible against him, which is why a court arguably could admit Carl's confession along with a limiting instruction telling jurors to ignore the confession in determining Dan's guilt or innocence. See Bruton, 391 U.S. at 128 n.3 ("We emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence,...the problem arising only because the statement was...admissible against the declarant."). The Court concluded, though, that there was a substantial threat that the jury would ignore such a limiting instruction and use the codefendant's confession as evidence of the other defendant's guilt, which is why such confessions are inadmissible unless the codefendant testifies.

This point is driven home by the fact that a "myriad [of] Courts of Appeals...have recognized that the rule and rationale of Bruton do not apply to bench trials." Johnson v. Tennis, 549 F.3d 296, 300 (3rd Cir. 2008). If Carl's confession literally violated Dan's right to be confronted with the witnesses against him, it would violate this right at both a jury trial and a bench trial.  But as noted, Carl's confession is not really admitted against Dan, and courts presume that judges are able to use Carl's confession solely as evidence of his guilt and not as evidence of Dan's guilt, which is why they don't apply Bruton to bench trials. See id.

Based upon this analysis, I don't think that the Supreme Court's landmark decision in Crawford v. Washington, 541 U.S. 36 (2004), had any impact on the Bruton doctrine. Almost every court, however, seems to disagree.

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October 26, 2010 | Permalink | Comments (2) | TrackBack (0)

Monday, October 25, 2010

Your Friends & Neighbors: Court Of Appeals Of Michigan Finds Statements Of Abuse To Neighbors Are Not Testimonial

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." So, does is a statement by an alleged victim to her neighbor about an act of abuse committed against her "testimonial" and possibly violative of the Confrontation Clause? According to the recent opinion of the Court of Appeals of Michigan in People v. Stenberg, 2010 WL 3984639 (Mich.App. 2010), the answer is "no."

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

Sunday, October 24, 2010

Land Of Confusion: Massachusetts Court's Ruling On Prior Inconsistent Statement Reveals Problems With State's Lack Of Rules Of Evidence

With the Supreme Court of Illinois recently approving and promulgating Illinois Rules of Evidence, Massachusetts remains one of the few states without codified rules of evidence. In June 2006, the Supreme Judicial Court of Massachusetts did create the Advisory Committee on Massachusetts Evidence Law to prepare a Guide to the Massachusetts law of evidence. And while the Committee did create such a Guide listing Proposed Massachusetts Rules of Evidence, those Proposed Rules were never adopted, and they have been removed from the public eye at the request of the Committee. The result? Cases like Commonwealth v. Belmer, 1210 WL 2, in which the Appeals Court of Massachusetts revealed the tortured history of the rule regarding prior inconsistent statements in Massachusetts.

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