Saturday, December 11, 2010
Federal Rule of Evidence 609(a) provides that
For the purpose of attacking the character for truthfulness of a witness,
(1) 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 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 regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
In other words, evidence of a witness' prior conviction is only admissible to impeach him if the conviction is a felony conviction or a conviction for a crime of dishonesty or false statement. As the recent opinion of the Third Circuit in United States v. Castro, 2010 WL 4948946 (3rd Cir. 2010), makes clear, however, this limitation does not apply if the witness claims that he doesn't have a criminal past.
Friday, December 10, 2010
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held 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. Thus, if a statement is not testimonial, there is no problem with its admission under the Confrontation Clause.
Thus, in United States v. Diaz, 2010 WL 1767248 (11th Cir. 2010), the Eleventh Circuit found a co-conspirator admission admissible without regard for the Confrontation Clause because co-conspirator admissions are deemed nontestimonial, even if they are made to confidential informants. In its recent opinion in Wilson v. United States, 2010 WL 1790365 (D.C. 2010), the District of Columbia Court of Appeals found the same with regard to adoptive admissions, even if they are made by someone working with the government and wearing a wire.
Thursday, December 9, 2010
Lied And Prejudice: Eighth Circuit Finds Proposed Rule 608(b) Evidence Failed Rule 403 Balancing Test
Federal Rule of Evidence 608(b) provides in relevant part that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
As the recent opinion of the Eighth Circuit in United States v. Alston, 2010 WL 4923288 (8th Cir. 2010), makes clear, however, it is important to note that cross-examination under Rule 608(b) is still subject to the balancing test set forth in Federal Rule of Evidence 403, which provides that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Wednesday, December 8, 2010
Structural Wound: First Circuit Implies Improper Jury Instructions Can Form Proper Predicate For Jury Impeachment
Federal 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 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.
Based upon this language, I don't understand an important part of the recent opinion of the First Circuit in United States v. Jadlowe, 2010 WL 4910239 (1st Cir. 2010).
Tuesday, December 7, 2010
Mississippi Confidential: Supreme Court Of Mississippi Discusses Two Marital Privileges In Manslaughter Appeal
Mississippi Rule of Evidence 504(b) provides that
In any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse.
Meanwhile, Mississippi Rule of Evidence 601(a) provides that
In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both, except as provided in Rule 601(a)(1) or Rule 601(a)(2)....
The Supreme Court of Mississippi's recent opinion in Newell v. State, 2010 WL 4882026 (Miss. 2010), provides an interesting, albeit somewhat flawed, discussion of these two marital privileges.
Monday, December 6, 2010
Under Pressure: Ninth Circuit Finds Negotiation Statements Admissible Despite Rule 408 To Prove Inappropriate Pressure
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.
As the language of Rule 408(b) makes clear, the three permitted uses listed are not exhaustive but instead only examples of permissible purposes. In its recent opinion in Costanich v. Department of Social and Health Services, 2010 WL 4910222 (9th Cir. 2010), the Ninth Circuit found that evidence of settlement negotiations was admissible for a purpose not enumerated under Rule 408(b). I'm not sure that I agree.
Sunday, December 5, 2010
The Shipping News: Eastern District Of Wisconsin Finds Data From Customs Records Admissible Under Rule 803(17)
Federal Rule of Evidence 803(17) provides an exception to the rule against hearsay for
Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.
As I have previously noted (see, e.g., here), this exception covers entries from the Kelley Blue Book. And, as the recent opinion of the United States District Court for the Eastern District of Wisconsin in Fond du Lac Bumper Exchange, Inc. v. Jui Li Enterprise Co. Ltd., 2010 WL 4867617 (E.D. Wis. 2010), makes clear, the exception also covers certain data compilations from Customs records.