EvidenceProf Blog

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

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Saturday, December 4, 2010

Designers Of The Arkansas: Court of Appeals Of Arkansas Finds Improper Bolstering Testimony Violated Rule 608(a)

Like its federal counterpart, Arkansas Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. 

As the language and the recent opinion of the Court of Appeals of Arkansas in Stalter v. Gibson, 2010 Ark. App.801 (Ark.App. 2010), make clear, a witness' credibility can only be bolstered after it has been attacked.

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

Friday, December 3, 2010

Bad Reputation?: Sixth Circuit Finds No Error With District Court's Prevention Of Character Evidence Question

A husband and wife are charged with conspiracy to commit money laundering, six counts of money laundering or aiding and abetting money laundering, and one count of harboring or concealing a fugitive. The husband has his attorney call a character witness to ask him whether he had an opinion as to the husband's reputation for "integrity, honesty and fair dealing" among his friends and associates. The prosecution objects, and the court sustains the prosecution's objection, prompting defense counsel to modify his question and ask whether the husband's reputation for "truth and veracity" was "good." The character witness answers that the husband's reputation for "truth and veracity" was "good." Is such an answer to this second question the functional equivalent of a positive answer to the first question? According to the recent opinion of the Sixth Circuit in United States v. Reid, 2010 WL 4829852 (6th Cir. 2010), the answer is "yes." I disagree.

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

Thursday, December 2, 2010

Taxing Time: Middle District Of Florida Precludes Jury Impeachment In Wesley Snipes Tax Case

After actor Wesley Snipes was convicted of three counts of misdemeanor offenses involving willful failure to file his income tax returns and sentenced to consecutive terms aggregating three years imprisonment, he, inter alia, moved for permission to interview jurors and for a new trial. Part of the basis for this motion was, inter alia, an e-mail that defense counsel received the evening after the United States Court of Appeals for the Eleventh Circuit rejected Snipes' appeal of his conviction. This e-mail, which came from one of the jurors who heard Snipes' case stated,

I served on the jury in Ocala that found him guilty on 3 counts of failing to file taxes. It was a deal that had to be made because of certain jurors that had already presumed he was guilty before the trail [sic] started and we only found this out in the last few days of deliberation. We thought we were making the right deal because we did not think he would go to jail for not filing taxes. There were 3 on the jury that felt this way and told us he was guilty before they even heard the first piece of evidence going against what the judge had said. If I can be of any help feel free to call me at

In rejecting Snipes' motion, the United States District Court for the Middle District of Florida found in United States v. Snipes, 2010 WL 4674368 (M.D.Fla. 2010), that "further pursuit of the issue is clearly foreclosed by Federal Rule of Evidence 606(b)," which provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

I disagree. 

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

Wednesday, December 1, 2010

Of Interest: Amendment To Federal Rule Of Evidence 804(b)(3) Becomes Law

Today, the recent amendment to Federal Rule of Evidence 804(b)(3) finally took effect. Previously, Rule 804(b)(3) provided an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

After the amendment, Federal Rule of Evidence 804(b)(3) now provides an exception to the rule against hearsay for 

A statement that:

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

In other words, previously only criminal defendants had to prove sufficient corroborating circumstances to introduce statements exposing declarants to criminal liability (usually confessions by alternate suspects). Now, the same burden also falls on prosecutors if, for instance, they are trying to introduce statements exposing declarants to criminal liability (e.g., statements by people who allegedly helped defendants commit the crime charged).

-CM 

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

Unspecified Error: Court Of Appeals Of Minnesota Notes Problems With Unspecified Conviction Impeachment

Like its federal counterpart, Minnesota Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect....

And, one of the factors that courts use to determine whether a conviction's probative value outweighs its prejucial effect is to look at how similar the prior conviction is to the crime charged (the greater the similarity, the greater the reason for not permitting use of the crime to impeach). But what if a court tries to reduce the prejudice of a similar prior conviction by ordering the prosecution to refer to the conviction only as a "felony" conviction, without identifying the underlying offense? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in State v. Hutchinson, 2010 WL 4825035 (Minn.App. 2010).

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

Tuesday, November 30, 2010

Say Anything?: Jeopardy Question About New Miranda Opinion Gets It Almost Completely Correct

Last night's episode of Jeopardy! featured the category "A Murder Investigation," with The Closer's Kyra Sedgwick reading the clues. The $1000 clue in the category was:

Getting confessions, Brenda's specialty, will be easier now that the Supreme Court has ruled that any response to interrogation means you've waived your rights under this 1966 decision

And the Question/Answer was Miranda v. Arizona, 384 U.S. 436 (1966). But what was the Supreme Court ruling referenced in the clue, and is it really true that any response to interrogation means that a suspect has waived his Miranda rights?

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

Monday, November 29, 2010

A Bit Presumptuous: Sixth Circuit Finds Undisclosed 15 Year Old Convictions Didn't Violate Brady

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. But is evidence of prior convictions of a "jailhouse snitch" material for Brady purposes if those convictions were more than ten years old? According to the recent opinion of the Sixth Circuit in Brooks v. Tennessee, 2010 WL 4721099 (6th Cir. 2010), the answer is "no."

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

Sunday, November 28, 2010

Honorable Discharge: Supreme Court Of Maine Debates When A Jury is Discharged For Jury Impeachment Purposes

Like its federal counterpart, Maine Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that juror's or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning any juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received.

As the Supreme Court of Maine noted in its recent opinion in State v. Hurd, 2010 WL 4608732 (Me. 2010), this Rule precludes a juror from impeaching a verdict, except under limited circumstances, once the court has taken the verdict and discharged the jury. So, when exactly is the jury discharged? That was the question that split the court in Hurd

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