EvidenceProf Blog

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

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Saturday, December 25, 2010

In Jury, We Trust: Court Of Appeals Of Colorado Allows Juror To Discount Effect Of Prejudicial Article

We trust jurors. We have to. This is the basis for 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.

As Justice O'Conner noted in Tanner v. United States, 483 U.S. 107 (1987), "There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it." But what happens when jurors are exposed to extraneous prejudicial information or an improper outside influence? Do we still trust jurors when they say that they verdicts were not tainted by such information or influence? According to the recent opinion of the Court of Appeals of Colorado in People v. Moore, 2010 WL 5013681 (Colo.App. 2010), the answer is "yes." I'm not sure that I agree. 

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December 25, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, December 24, 2010

A Misunderstanding: Court Of Appeals Of Texas Precludes Jury Impeachment Based On Juror Misimpression For Video

A defendant is on trial for driving while intoxicated (DWI). At trial, the prosecution shows a videotape to the jury in which the defendant says that he "took responsibility before." After the jury convicts the defendant, jurors approach defense counsel and inform him that they thought based upon the video that the defendant had been convicted of DWI before. In fact the defendant had no prior DWI convictions. Should the jurors be able to impeach their verdict? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Salazar v. State, 2010 WL 4840491 (Tex.App.-San Antonio 2010), the answer is "no." 

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December 24, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 23, 2010

Judicial Guidance: Court Of Appeals Of Kentucky Applies Three Factor Test To Judicial Interrogation

Like its federal counterpart, Kentucky Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." But when does a judge cross the line into advocate for one of the parties, necessitating a new trial? As the recent opinion of the Court of Appeals of Kentucky in Amos v. Clubb, 2010 WL 5018471 (Ky.App. 2010), makes clear, however, many courts have adopted a three-factor test to determine whether judicial interrogation is proper.

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December 23, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 22, 2010

Uncompromising: Eastern District Of Tennessee Precludes Jury Impeachment To Prove Compromise Verdict

A defendant is charged with twelve counts. During deliberations, the jury sends a note to the judge which indicates that some jurors would not vote guilty. The note apparently also contains information about the numerical division of the jury. The judge reads aloud to the prosecutor and defense counsel the portion of the note that says that some jurors would not vote guilty. The judge then informs the parties that the note contains information about the numerical division of the jury, but the judge does not reveal this numerical information. The judge thereafter asks the parties for objections to an Allen charge. When the parties don't object, the judge recalls the jury and gives them the Allen charge. Later that day, the jury returns a verdict convicting the defendant on some charges but acquitting him on others. Should defense counsel be able to see the entire note and/or interview jurors to determine whether there was a compromise verdict? According to the recent opinion of the United States District Court for the Eastern District of Tennessee in United States v. Kennedy, 2010 WL 5057210 (M.D. Tenn. 2010), the answer is "no" on both counts.

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December 22, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 21, 2010

It's Settled: Court Of Appeals of Texas Finds Burden Is On Party Raising Rule 408 To Prove Settlement Negotiations

Similar to its federal counterpart, Texas Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

As the recent opinion of the Court of Appeals of Texas, Fort Worth, in Vinson Minerals, Ltd. v. XTO Energy, Inc., 2010 WL 6118649 (Tex.App.-Fort Worth 2010), makes clear, however, the burden is on the party objecting to evidence under Rule 408 to show that it was a part of settlement negotiations and not offered for another purpose.

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December 21, 2010 | Permalink | Comments (1) | TrackBack (0)

Monday, December 20, 2010

Let's Go To The Tape: Supreme Court Of South Carolina Finds Prisoner Video Admissible In Death Penalty Appeal

A defendant is convicted of two counts of armed robbery, two counts of murder, one count of burglary of a dwelling, first degree, one count of attempt to burn, and one count of criminal sexual conduct, first degree. During the sentencing phase of trial and over the defendant's objection, the State introduced a video recording showing prison guards using pepper-spray to force the defendant to comply with a pat-down request. The events documented on the tape occurred the night that the defendant was found guilty. The defendant refused to allow prison guards to touch him when the guards requested that he place his hands on the wall for a pat-down. The guards explained that the pat-down was policy and indicated that if he continued to refuse, the defendant would be pepper-sprayed. The defendant continued to resist after several requests for compliance, so the guards used pepper-spray to restrain him. At the end of the sentencing phase of trial, the defendant was given the death penalty. Did the trial court properly allow for admission of the tape? According to the recent opinion of the Supreme Court of South Carolina in State v. Torres, 2010 WL 5071684 (S.C. 2010), the answer is "yes."

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

Sunday, December 19, 2010

Moving Target: Court Of Criminal Appeals Of Texas Clarifies Similar Motive Requirement Under Rule 804(b)(1)

Similar to its federal counterpart, Texas Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.

But when exactly is there is a similar motive to develop the testimony of a witness? That was the question addressed by the recent opinion of the Court of Criminal Appeals of Texas in its recent opinion in Martinez v. State, 2010 WL 5093405 (Tex.Crim.App. 2010).

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