Saturday, January 1, 2011
By Way Of Limitation: Supreme Court Of Arizona Addresses Inadequate Limiting Instructions Under Rule 105
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
And, as the recent opinion of the Supreme Court of Arizona in State v. Gomez, 2010 WL 5173627 (Ariz. 2010), makes clear, the submission of an inadequate instruction does not waive the defendant's right to a limiting instruction in a case covered by Rule 105.
Friday, December 31, 2010
Brother To Brother: First Circuit Finds Private Confession To Brother Not Admissible Under Rule 804(b)(3)
Federal Rule of Evidence 804(b)(3) 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.
So, would it be correct to make a blanket statement that a private confession to a brother can never constitute a statement against interest under Rule 804(b)(3)? The First Circuit didn't go quite that far in its recent opinion in Santiago v. O'Brien, 2010 WL 5175178 (1st Cir. 2010), but it came pretty darn close.
Thursday, December 30, 2010
It's An Eye Roller: Court Of Appeals Of Alaska Precludes Jury Impeachment Based On Prosecutor's Eye Rolling
Upon an inquiry into the validity of a verdict or indictment, a juror may not be questioned as to any matter or statement occurring during the course of the jury's deliberations or to the effect of any matter or statement 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, 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 for these purposes.
So, does this Rule prevent the receipt of juror affidavits indicating that the prosecutor rolled his eyes during certain parts of trial? According to the recent opinion of the Court of Appeals of Alaska in Silvera v. State, 2010 WL 5129199 (Alaska App. 2010), the answer is "yes."
Wednesday, December 29, 2010
Battle Of The Transcripts: Eleventh Circuit Finds No Problem With Circumscription Of Paralegal Transcriptionist's Testimony
It's common at trial to have the so-called "battle of the experts," in which the prosecution's expert might claim that there were defensive wounds on the victim's body while the defense expert might claim that there were no such wounds. In United States v. Gayle, 2010 WL 5174536 (11th Cir. 2010), however, there was the much rarer "battle of the transcripts," with the key being that the defense transcriptionist was not an expert.
Tuesday, December 28, 2010
MCL 750.520j, Michigan's rape shield statute, provides that:
(1) Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct shall not be admitted ... unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim's past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
In its recent opinion in People v. Hoskinson, 2010 WL 5129891 (Mich.App. 2010), the Court of Appeals of Michigan rejected the appellant's argument that he could present evidence of the alleged victim's sexual conduct to prove that she consumed a high level of alcohol on the night he allegedly sexually assaulted her. In rejecting this argument, the court concluded: "Allowing the jury to hear about a victim's sexual past to prove the victim consumed a high level of alcohol is not a recognized exception, and such a rule would violate a victim's rights under the rape shield statute."
At first blush, this sentence seems innocuous, something we might see in any case denying an appellant's rape shield appeal. But at second glance, it seems much more significant.
Monday, December 27, 2010
Diagnosis Rape: Court Of Appeals Of Mississippi Finds Statements Made To Social Worker Admissible Under Rule 803(4)
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, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical" refers to emotional and mental health as well as physical health.
As the recent opinion of the Court of Appeals of Mississippi in Cox v. State, 2010 WL 5093619 (Miss. 2010), makes clear, however, statements do not need to be made to a diagnostician (or even a medical professional) to be admissible under this Rule.
Sunday, December 26, 2010
Yesterday, I saw the Coen brothers' latest movie, "True Grit," the remake of the 1969 film starring John Wayne, with both being based upon the book by Charles Portis. One of my reactions: The Coens have learned a lot about the law since they made "Intolerable Cruelty," which I regard as one of the most legally inaccurate movies of all time.
But this was clearly not the case with "True Grit," an old school Western with a surprising legal focus. First, there's a scene which I will be sure to use in my Criminal Law classes that focuses on the distinction between Malum in se and Malum prohibitum: