EvidenceProf Blog

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

Saturday, November 13, 2010

In Conclusion: Southern District Of Texas Finds Testimony About Copyright Violations Violates Rule 704(a)

Federal Rule of Evidence 704(a) states that

Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

Conversely, expert witnesses are not allowed not testify in the form of ultimate legal conclusions? So, when does an opinion properly embrace an ultimate issue, and when does an opinion improperly embrace an ultimate legal conclusion? It's a thin line, but it is one that was recently crossed according to the recent opinion of the United States District Court for the Southern District of Texas in Interplan Architects, Inc. v. C.L. Thomas, Inc., 2010 WL 4065465 (S.D.Tex. 2010).

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

Friday, November 12, 2010

Death Becomes Her: The Good Wife Partially Gets Psychotherapist-Patient Privilege Issue Right

This week's episode of "The Good Wife" had Alicia and company litigating a "test case" in which the allegation was that the defendant-pharmaceutical company's antidepressant caused the client's mother to kill herself and her husband. If the firm won, it would have opened the door for an easy class action lawsuit against the company and millions of dollars for both victims and the firm. The case, though, never went to verdict, with the company agreeing to a $35 million settlement. Why?

Well, part of the pharmaceutical company's defense (presented by terrific guest star Michael J. Fox) was that it wasn't the drug that caused the murder-suicide; it was the mother's belief that her husband was sleeping with their daughter. And, to establish this defense, the company called the mother's therapist to testify that the mother told him about these suspicions in the months before her death. This led to Alicia and company calling a former patient of the therapist to testify that the shrink engaged in sexual relations with her, prompting him to move his practice from Illinois to Wisconsin. This testimony leads the pharmaceutical company to enter into the settlement (although Fox's attorney later explains that this was always the company's plan).

So, why was the therapist allowed to testify about the mother-patient's suspicions? The show explains that while the psychotherapist-patient privilege normally deems such communications confidential and the privilege survives the patient's death in Illinois, it does not survive the patient's death in Wisconsin. Therefore, the therapist's move to Wisconsin meant that any statements made by the mother after the move were not protected by the privilege? So, did the show get it right? 

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November 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 11, 2010

Not My Intention: Sixth Circuit Finds Testimony About Intent To Distribute Drugs Didn't Violate Rule 704(b)

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

So, can a DEA agent testify that the amount of drugs found on a defendant is consistent with intent to distribute them without violating Rule 704(b)? According to the recent opinion of the Sixth Circuit in United States v. McCreary-Redd, 2010 WL 4244124 (6th Cir. 2010), the answer is "yes." 

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November 11, 2010 | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 10, 2010

Color Me Surprised: Court Of Appeals Of Idaho Finds No Problem With Color Biased Photos Under Best Evidence Rule

Like its federal counterpart, Idaho Rule of Evidence 1002 provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

And, like its federal counterpart, Idaho Rule of Evidence 1001(3) provides in relevant part that

An "original" of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."

So, let's say that in a case determining whether children should be placed in protecting custody, the prosecution seeks to present several photographs of injuries to the children produced from data downloaded from a camera to a computer system and printed out at the police station. And let's say that the parents presented testimony from an expert witness who testified that the colors of the prints were not "neutrally balanced" and reflected color biases toward red and yellow hues. Are these photographs "originals," or do they fail the test laid out in Rule 1001(3) because they do not reflect the data accurately? According to the recent opinion of the Court of Appeals of Idaho in Idaho Dept. of Health and Welfare v. Doe, 2010 WL 4342147 (Idaho App. 2010), these photographs are "originals," but I question the way that the court reached its conclusion. 

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

Tuesday, November 9, 2010

Shut The Door: Court Of Criminal Appeals Of Alabama Finds Door Not Opened For Impeachment Via Misdemeanor Conviction

Alabama Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness,

(1)(A) 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

(1)(B) 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 if it involved dishonesty or false statement, regardless of the punishment.

Under this Rule, then, it is clear that a party cannot impeach a witness through evidence that the witness has a prior misdemeanor conviction for a crime not involving dishonesty or false statement. But does a witness open the door for such impeachment by testifying that he only completed the Eleventh grade if the reason that he did not complete his high school education was the conviction? According to the recent opinion of the Court of Criminal Appeals of Alabama in Beemon v. State, 2010 WL 4380238 (Ala.Crim.App. 2010), the answer is "no."

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November 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, November 8, 2010

I'm Incomplete: Second Circuit Finds Exculpatory Statement To Police Inadmissible Under Rule Of Completeness

Federal Rule of Evidence 106, the rule of completeness, provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

So, if the prosecution introduces part of a defendant's post-arrest statement that incriminates him, does fairness require the court to admit another part of the statement that (arguably) exonerates him? According to the recent opinion of the Second Circuit in United States v. Gonzalez, 2010 WL 4342192 (2nd Cir. 2010), the answer is "no," at least when the exculpatory portion of the statement neither explains nor is relevant to the admitted portion.

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November 8, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, November 7, 2010

False Accounting: Supreme Court Of Virginia Finds Brady Violation Based Upon Nondisclosed Material Impeachment Evidence

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. And, as is clear from the recent opinion of the Supreme Court of Virginia in Bly v. Commonwealth, 2010 WL 4347936 (Va. 2010), when the prosecution fails to disclose impeachment evidence about the key witness for the prosecution, the defendant will be entitled to a new trial.

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November 7, 2010 | Permalink | Comments (0) | TrackBack (0)