EvidenceProf Blog

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

Saturday, November 20, 2010

Follow My Voice: Seventh Circuit Reiterates Minimal Familiarity Standard Under Rule 901(b)(5)

Federal Rule of Evidence 901(b)(5) provides that the identification of a voice, "whether heard firsthand or through mechanical or electronic transmissions or recording," may be established by opinion testimony that is "based upon hearing the voice at any time under circumstances connecting it with the alleged speaker." So, can an officer authenticate a defendant's voice on wiretapped telephone conversations based upon the officer listening to an approximately fifteen second voice exemplar at least fifty to sixty times? According to the recent opinion of the Seventh Circuit in United States v. Cruz-Rea, 2010 WL 4628670 (7th Cir. 2010), the answer is "yes," despite the absence of any empirical evidence on the reliability of voice identifications. 

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

Friday, November 19, 2010

Speed Bump: Tenth Circuit Finds Coconspirator Admission Motion Tolled Speedy Trial Clock

Pursuant to 18 U.S.C. Section 3161(c)(1) of the Speedy Trial Act,

In any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs. If a defendant consents in writing to be tried before a magistrate judge on a complaint, the trial shall commence within seventy days from the date of such consent.

That said, Section 3161(h)(1)(D) of the Act provides that

The following periods of delay shall be excluded in computing the time within which an information or an indictment must be filed, or in computing the time within which the trial of any such offense must commence:

(1) Any period of delay resulting from other proceedings concerning the defendant, including but not limited to....

(D) delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion....

And, as the recent opinion of the Tenth Circuit in United States v. Mulgado-Patida, 2010 WL 4627875 (10th Cir. 2010), makes clear, evidentiary motions sometimes fall under Section 3161(h)(1)(D)

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November 19, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, November 18, 2010

Doctor, Doctor, Give Me The News: Court Of Appeals Of Iowa Notes That Rule 803(4) Covers Exculpatory Statements

Like its federal counterpart, Iowa Rule of Evidence 5.803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

But does Rule 5.803(4) only apply to inculpatory statements? That was the surprising conclusion reached by an Iowa trial court and correctly reversed by the Supreme Court of Iowa in its recent opinion in State v. Hanes, 2010 WL 4539192 (Iowa 2010).

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

The Passing Of Margaret A. Berger

I am saddened to pass along the news that Margaret A. Berger, the Trustee Professor of Law at the Brooklyn Law School and surely one of the most influential Evidence teachers and scholars in the world, has passed away. As Edward Cheng, her former colleague at Brooklyn, noted on the Evidence Professor listserv this morning: "She was an extraordinary scholar, teacher, and person. Our field will never quite be the same without her." For more on this amazing woman and her life, you can check out Tributes to Margaret A. Berger for the Science for Judges Programs, A Letter to Honor Professor Margaret Berger, and Professor Cheng's Festschrift in Honor of Margaret A. Berger.

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

Wednesday, November 17, 2010

Article Of Interest: Allison Orr Larsen's Bargaining Inside the Black Box

The vast majority of criminal cases are resolved by compromises in the form of plea bargains. Moreover, the purpose of Federal Rule of Evidence 410, which deems inadmissible statements made during the course of plea discussions, is to encourage such compromises. So, what happens to criminal cases that go to trial and are submitted to jurors for deliberations? Well, according to the terrific new article, Bargaining Inside the Black Box (forthcoming, Georgetown Law Journal), by Allison Orr Larsen, an Assistant Professor at the William & Mary Law School, most of these cases are resolved by compromises as well, in the form of compromise verdicts (including, but not limited to, verdicts reached when jurors, to avoid deadlocks, concede some issues so that other issues will be resolved in their favor). As Professor Larsen notes, these compromise verdicts are viewed quite differently than plea bargains: They are "generally dismissed as flaws in the jury process - examples of maverick jurors dishonoring their oath to uphold the law, and reasons why the jury should not be trusted with more power, for example, to participate in sentencing decisions." But should they be? Professor Larsen's fascinating argument is "that the best way to evaluate intrajury negotiation is to juxtapose it with the negotiation that dominates our criminal justice system and has already been subject to detailed study."

And by doing so, she reaches the conclusion

that while steps can and should be taken to improve intrajury negotiation, the common critiques of compromise verdicts - that they are lawless flaws in the jury system - do not have the force they might in a world without plea bargaining....Instead of quickly dismissing intrajury negotiation as an illegitimate process,...we should recognize it as a reality and seek to improve it with lessons we have learned from plea negotiations.

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

Tuesday, November 16, 2010

Shield And Sword: Court Of Appeals Of Iowa Finds Prosecutor Improperly Used Rule 607 In Murder Appeal

Like its federal counterpart, Iowa Rule of Evidence 5.607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

It is well established, however, that the State can only use this Rule as a shield and not as a sword, i.e., that the State is not entitled  to place a witness on the stand who is expected to give unfavorable testimony and then, in the guise of impeachment, offer evidence which is otherwise inadmissible. And, as the recent opinion of the Court of Appeals of Iowa in State v. Bush, 2010 WL 4484401 (Iowa App. 2010), makes clear, if the State uses Rule 5.607 as a sword to get the defendant's confession(s) before the jury, an appellate court is likely to reverse.

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

Monday, November 15, 2010

Forgive Me Father: Court Of Appeals Of Texas Finds Child Sexual Abuse Talk With Priest Not Covered By Privilege

Texas Rule of Evidence 505(b) provides that

A person has a privilege to refuse to disclose and to prevent another from disclosing a confidential communication by the person to a member of the clergy in the member's professional character as spiritual adviser.

So, let's say that a Catholic priest calls a father based upon allegations that the father was sexually abusing his daughter, a member of his parish. Are the father's statements to the priest covered by this clergyperson-penitent privilege. According to the recent opinion of the Court of Appeals of Texas, Houston, in Gutierrez v. State, 2010 WL 4484350 (Tex.App.-Houston [1 Dist.] 2010), the answer is "no," at least if the priest makes the purpose of the conversation clear to the father.

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

Sunday, November 14, 2010

Electric Sheep: Court Of Appeals Of Indiana Notes That Statements Automatically Generated By Computers Can't Be Hearsay

Like its federal counterpart, Indiana Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

And, like its federal counterpart, Indiana Rule of Evidence 801(b) defines a declarant as "a person who makes a statement." And, as this definition and the recent opinion of the Court of Appeals of Indiana in Cranston v. State, 2010 WL 4410153 (Ind.App. 2010), make clear, because a declarant must be a person, a statement automatically generated by a computer cannot be hearsay.

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