EvidenceProf Blog

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

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Saturday, November 6, 2010

The Weight Of The Evidence: Court Of Appeals Of Texas Deemes Pretrial Hearing Testimony Admissible Under Rule 804(b)(1)

Similar to its federal counterpart, Texas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for,

In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.

So, does a criminal defendant have a motive to develop the testimony of a witness for the prosecution at a pretrial hearing determining the admissibility of hearsay statements that is similar to his motive to develop the testimony of the witness at trial? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Sanchez v. State, 2010 WL 4336169 (Tex.App.-San Antonio 2010), the answer is "yes." I disagree.

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November 6, 2010 | Permalink | Comments (1) | TrackBack (0)

Friday, November 5, 2010

Not Like The Other: Court Of Appeals Of North Carolina Stretches To Find Prior Rape Evidence Admissible Under Rule 404(b)

Federal Rule of Evidence 413(a) provides that

In a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.

North Carolina does not have a counterpart to Federal Rule of Evidence 413(a), but it does have North Carolina Rule of Evidence 404(b), which provides in relevant part that

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.

So, can the prosecution in a rape case present evidence of prior similar rapes to prove that the defendant has a common plan or scheme for committing rape? According to the recent opinion of the Court of Appeals of North Carolina in State v. Davis, 2010 WL 4292081 (N.C.App. 2010), the answer is "yes," at least based upon the case before the court.

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November 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 4, 2010

It's History: DDC Deems "Gangland" TV Episode From History Channel Inadmissible In Murder Prosecution On Rule 403 Grounds

A defendant is on trial for murder. That murder is the subject of an episode of the television show "Gangland" on the History Channel. The show intermingles photographs of the victim with footage of professional actors engaged in a purported reenactment of his death. The prosecution moves to introduce the videotape, and the defendant moves to exclude it on three grounds: (1) the videotaped reenactment is unfairly prejudicial and confusing and thus inadmissible under Federal Rule of Evidence 403; (2) the videotape consists of inadmissible hearsay offered to prove the truth of the matter asserted under Federal Rule of Evidence 801(c); and (3) admitting the videotape would deprive him of his rights under the Confrontation Clause because the actors in the videotape are in effect "witnesses" whom he will not be able to confront. How should the court rule? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Williams, 2010 WL 4071388 (D.D.C. 2010), the defendant's first argument has merit, meaning that it didn't have to address the other two arguments. I agree but would also add that the other two arguments appear meritorious as well.

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November 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 3, 2010

Changing Its Colors: Court Of Appeals Of Mississippi Deems Carpet Color Change Inadmissible Under Rule 407

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.

Thus, evidence of a subsequent remedial measure is inadmissible for some purposes but admissible for other purposes. It is important to keep in mind, though, that, as the rule indicates, a party can only use evidence of such a measure to prove feasibility of the measure (or ownership or control) if the other party has controverted feasibility (or ownership or control) as is made clear by the recent opinion of the Court of Appeals of Mississippi in Manning v. Gruich, 2010 WL 4188278 (Miss.App. 2010).

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November 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 2, 2010

I Voted: Court Of Appeals Of Arkansas Finds Vote By Legislative Body Doesn't Constitute Settlement Negotiation Under Rule 408

Like its federal counterpart, Arkansas Rule of Evidence 408 provides that

Evidence of (1) furnishing, offering, or promising to furnish, or (2) accepting, offering, or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for, invalidity of, or amount of the claim or any other claim. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require exclusion if the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution

Basically, Rule 408 deems inadmissible statements made during settlement negotiations. So, does the Rule apply to the vote of a legislative body to resolve a dispute? According to the recent opinion of the Court of Appeals of Arkansas in Weaver v. Collins, 2010 WL 4231468 (Ark.App. 2010), the answer is "no."

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November 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, November 1, 2010

Legally Blind, Take 2: Court Of Appeals Of Maryland Agrees With Me, Reverses Murder Conviction In Legally Blind Witness Case

Back in January 2009, I posted an entry about the retrial of Tony Williams for murder. Williams was convicted after a first trial based in large part on the testimony of eyewitness for the prosecution Brenda O'Carroll, the victim's neighbor. That conviction, however, was reversed after it was determined that the prosecution failed to disclose material impeachment evidence in violation of Brady v. Maryland, such as evidence that O'Carroll was legally blind. O'Carroll died before Williams' retrial, and, at that retrial, the prosecution successfully introduced O'Carroll's testimony from the first trial under Maryland Rule of Evidence 5-804(b)(1), which provides an exception to the rule against hearsay for

Testimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

On appeal, Williams claimed that the admission of this former testimony was erroneous because the prosecution's failure to disclose that O'Carroll was legally blind meant that he was not given a full and fair opportunity to probe and expose the infirmities of O'Carroll's testimony as is required under Rule 5-804(b)(1). The Court of Special Appeals of Maryland disagreed, concluding that

another witness testified that it was "pitch dark" at the time of the murder, and O'Connell testified, inter alia, that she was taking "medicine," receiving radiation, and had had eleven operations.  According to the court, this gave defense counsel a motive to question O'Carroll about her eyesight at the first trial, which he did not do.

In disagreeing with this conclusion, I posted:

So, I ask readers:  Do you think that Williams had a full and fair opportunity to challenge O'Carroll's testimony based upon her eyesight at the first trial?  Or did the prosecution's failure to disclose evidence of her legal blindness render that opportunity something less than full and fair?  I would argue the latter, and, I think that the Court of Appeals of Maryland might agree with me upon appeal.

In its recent opinion in Williams v. State, 2010 WL 4231296 (Md. 2010), the Court of Appeals of Maryland did just that.

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November 1, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 31, 2010

EvidenceProf Blog's 4th Annual Halloween Movie Pick: Robert Siodmak's "The Spiral Staircase"

It's Halloween again, which means that it's time for EvidenceProf's Blog's fourth annual Halloween movie pick (after "The Gift," "Homecoming," and "Henry: Portrait of a Serial Killer"). For this year's pick, I'm once again digging into the archives from my days reviewing DVDs and pulling out a review. This one is of Robert Siodmak's "The Spiral Staircase." Siodmak is probably best known for 1946's noir classic "The Killers," which earned him an Oscar nomination for Best Direction, but 1945's "The Spiral Staircase" is also worth a watch on a dark and stormy night. 

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October 31, 2010 | Permalink | Comments (1) | TrackBack (0)