Saturday, December 18, 2010
Lacking Substance: Supreme Court Of Kansas Finds Evidence Of Liability Insurance Was Inadmissible To Prove Bias
Federal Rule of Evidence 411 provides that
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Meanwhile, K.S.A. 60-454 provides that
Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.
In other words, Kansas's counterpart to Rule 411 makes no mention of evidence of liability insurance being admissible for other purposes such as proving bias. As the recent opinion of the Supreme Court of Kansas in Kansas Medical Mut. Ins. v. Svaty, 2010 WL 5033519 (Kan. 2010), makes clear, however, Kansas courts have read such language into K.S.A. 60-454 and applied the "substantial connections test" applied by most jurisdictions.
Friday, December 17, 2010
Treatment Options: Court Of Appeals Of Texas Finds Statements Not Covered By Alcohol/Drug Treatment Privilege
Texas Rule of Evidence 509(b) provides that
There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.
In Murray v. State, 2010 WL 4924913 (Tex.App.-Dallas 2010), the appellant claimed that he went to a healing center seeking treatment for drug or alcohol abuse, making his statements to the center's staff covered by Rule 509(b). The Court of Appeals of Texas, Dallas, disagreed.
Thursday, December 16, 2010
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.
As I have noted before, however, courts almost always find that violations of Rule 704(b) constitute harmless error, which is exactly what the Sixth Circuit found in its recent opinion in United States v. Warshak, 2010 WL 5071766 (6th Cir. 2010).
Wednesday, December 15, 2010
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition....
Because such a prior inconsistent statement is not hearsay, it is both admissible to impeach the witness and to prove the truth of the matter asserted as is made clear by the recent opinion of the Supreme Court of Mississippi in James K. Triplett as the Administrator of the Estate of Jean B. Triplett, Deceased v. River Region Medical Corporation, 2010 WL 5093777 (Miss. 2010).
Tuesday, December 14, 2010
Play It Again: Court Of Appeals Of Texas Finds No Problem With Admission Of Translation After Playing Of Spanish Confession
Texas Rule of Evidence 1009(a) provides that
A translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial.
Meanwhile Texas Code of Criminal Procedure 38.30(a) provides that
When a motion for appointment of an interpreter is filed by any party or on motion of the court, in any criminal proceeding, it is determined that a person charged or a witness does not understand and speak the English language, an interpreter must be sworn to interpret for the person charged or the witness. Any person may be subpoenaed, attached or recognized in any criminal action or proceeding, to appear before the proper judge or court to act as interpreter therein, under the same rules and penalties as are provided for witnesses. In the event that the only available interpreter is not considered to possess adequate interpreting skills for the particular situation or the interpreter is not familiar with use of slang, the person charged or witness may be permitted by the court to nominate another person to act as intermediary between the person charged or witness and the appointed interpreter during the proceedings.
In its recent opinion in Peralta v. State, 2010 WL 4851388 (Tex.App.-El Paso 2010), the Court of Appeals of Texas, El Paso, found that the government's compliance with these two provisions rendered meritless the appellant's argument that the introduction of the translation of his Spanish language confession after that confession was played to the jury was improper. I'm not sure that I agree.
Monday, December 13, 2010
Federal Rule of Evidence 703 provides that
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.
Meanwhile, Federal Rule of Evidence 803(8)(C) provides an exception to the rule against hearsay for
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
And, Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
The common theme: If a piece of evidence is not trustworthy, it can't be used under any of these Rules as is made clear by the recent opinion of the Eighth Circuit in Junk v. Terminix Intern. Co., 2010 WL 4978801 (8th Cir. 2010).
Sunday, December 12, 2010
Conspiracy Theory: Seventh Circuit Finds Statement About Disposing Murder Weapon Qualifies As Co-Conspirator Admission
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
So, are statements about disposing the murder weapon later in the month after a shooting during the course of an in furtherance of the conspiracy to murder the victim? According to the recent opinion of the Seventh Circuit in United States v. Nicksion, 2010 WL 4978819 (7th Cir. 2010), the answer is "yes."