EvidenceProf Blog

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

Saturday, February 13, 2010

Versions Of Violence: Court Of Appeals Of Tennessee Refuses To Read Violence Exception Into Rule 606(b)

Tennessee 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 any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; 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.

I have written previously about how Minnesota added an exception to its version of Rule 606(b) which permits jury impeachment "as to any threats of violence or violent acts brought to bear on jurors, from whatever source, to reach a verdict." In Gaines v. Tenney, 2010 WL 199628 (Tenn.Ct.App. 2010), a trial court had read a similar violence exception into Tennessee Rule of Evidence 606(b), but the Court of Appeals of Tennessee reversed.

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February 13, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, February 12, 2010

Mourning the Loss of Loyola Los Angeles Associate Dean and Co-EvidenceProf Blogger David Leonard

I am deeply saddened to report that my co-EvidenceProf Blogger David P. Leonard has passed away.  David was one of the first people whom I contacted when I was starting the blog, and he was extremely helpful in giving me advice and encouragement. The launching of this blog was also simultaneous with the launching of my teaching career, and David gave me extremely useful information about working with students and how to be an effective professor in general. David was one of the best Evidence professors and scholars in the world and an even better person. I send my warmest regards to his family at this time.

You can read the announcement from Loyola Law School Los Angeles regarding his passing by clicking here or reading below:

Professor David P. Leonard, Associate Dean for Research and longtime member of the faculty at Loyola Law School, passed away on the evening of Wednesday, Feb. 10, due to complications related to cancer. Funeral services will be at 11 a.m. on Sunday, Feb. 14, at Hillside Memorial Park, 6001 W. Centinela Ave., Los Angeles, CA 90045. 

Leonard joined the Loyola faculty in 1990 and was appointed Associate Dean for Research in 2008. He was an immensely popular professor with students, faculty and staff alike. The graduating class of 2009 presented him with the Excellence in Teaching Award. Leonard served as a model of compassion and professionalism. His efforts as Associate Dean for Research helped raise Loyola’s scholarly profile. And he did all this with a constant smile as he battled cancer.

“David was not only a colleague but also a dear friend,” said Dean Victor Gold, who co-authored Evidence: A Structured Approach with Leonard. “He was kind, funny, compassionate and courageous.  He loved teaching and was dedicated to his students. We have suffered a great loss."

At Loyola, Leonard taught the Advanced Evidence Seminar, Evidence and Torts. In addition, he was a prolific scholar. His books include The New Wigmore: A Treatise on Evidence: Evidence of Other Misconduct and Similar Events and Evidence Law: A Student’s Guide to the Law of Evidence as Applied in American Trials. His many law review articles appeared in the U.C. Davis Law Review, the North Carolina Law Review, the Southern California Law Review, the University of Colorado Law Review, the Hastings Law Journal and the Indiana Law Journal, among others.

Before joining the Loyola faculty, Leonard was a member of the faculty at the Indiana University School of Law and a lecturer-in-law at UCLA School of Law, where he received his J.D. Leonard received his bachelor’s degree with highest honors from the University of California, San Diego.

Leonard, who was 57, is survived by his wife, Susan, and sons, Adam and Matthew.

As news of Leonard’s passing traveled around campus, impromptu eulogies sprung up on Internet status messages like that of alumnus Greg Strausberg ’09, a Tax LL.M. student who studied evidence under Leonard in 2007. “He took it personally upon himself to take care of not only his current students, but all of his past students, staff, faculty and administration at Loyola. He will be, and already is, sorely missed by all of generations of his students," said Strausberg.


February 12, 2010 | Permalink | Comments (0) | TrackBack (0)

Liar, Liar: Court Of Appeals Notes That Polygraph Related Statements Can Be Admitted Even If Polygraph Results Cannot

It is well established (except in New Mexico) that the results of a polygraph exam are inadmissible at trial, barring a stipulation by both sides that such results will be admissible before the test is taken. But what about statements made by an individual in connection with a polygraph exam? For instance, what happens if an individual fails a polygraph exam and thereafter makes incriminatory statements? Should those statements also be deemed inadmissible? According to the recent opinion of the Court of Appeals of Virginia in Lee v. Southside Virginia Training Center, 2010 WL 342592 (Va.App. 2010), the answer is "no."

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February 12, 2010 | Permalink | Comments (2) | TrackBack (0)

Thursday, February 11, 2010

48 Hours: Supreme Court Of South Dakota Addresses 18 Day Detention Of Arrestee Without Probable Cause Hearing

Pursuant to the Supreme Court's opinion in County of Riverside v. McLaughlin, 500 U.S. 44 (1991), individuals arrested without a warrant must have a judicial probable cause determination within 48 hours after the arrest unless a bona fide emergency or other extraordinary circumstance exists. But what is the remedy for violations of the principle? In the situation where a defendant confesses or make other incriminating statements during an unlawful detention, the court is faced with the decision of whether to suppress the confession, statements, or evidence, and courts across the country have reached inconsistent results. But what happens when potentially exculpatory evidence is lost as a result of the delay? That was the issue of first impression faced by the Supreme Court of South Dakota in its recent opinion in State v. Larson, 776 N.W.2d 254 (S.D. 2009).

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February 11, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 10, 2010

Residual Value: Nevada Case Reveals Potential Usefulness Of Residual Hearsay Exception To Gender And Race Discrimination Plaintiffs

Federal Rule of Evidence 807 provides an exception to the rule against hearsay for

A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, the proponent's intention to offer the statement and the particulars of it, including the name and address of the declarant.

Rule 807 is a rarely applied rule of last resort upon which litigants can try to rely if all other hearsay exceptions don't quite cover statements that they seek to admit. As the recent opinion of the United States District Court for the District of Nevada in Taylor v. Fairfield Resorts, Inc./Wyndham, 2009 WL 5195973 (D. Nev. 2009), makes clear, however, it could be a useful rule for gender and race discrimination plaintiffs who can't point to smoking guns and who can't find employees willing to testify.

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February 10, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 9, 2010

Not What She Bargained For: Supreme Court Of Idaho Addresses Issue Of Whether Government Breached Plea Agreement In Harboring A Felon Appeal

About 90% of criminal cases in the United States are resolved by plea bargains, and it is well established that if the prosecution fails to adhere to the terms of a plea agreement, it constitutes good cause for the defendant to withdraw his guilty plea. In its recent opinion in State v. Lampien, 2009 WL 4928357 (Idaho 2009), the Supreme Court of Idaho addressed an issue that is less clear and that has split courts across the country: Is a law enforcement agency bound by a prosecutor's plea agreement?

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February 9, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, February 8, 2010

Jumping To Conclusions: Supreme Court Of Arkansas Seemingly Errs In Deeming Admission An Ultimate Legal Conclusion

Arkansas Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.  

Under this rule, Arkansas courts have drawn the same line as federal courts:  Witnesses can testify concerning ultimate issues but cannot testify about ultimate legal conclusions. And, in W.E. Pender & Sons, Inc. v. Lee, 2010 WL 391332 (Ark. 2010), the Supreme Court of Arkansas found that a witness crossed that line. I, however, disagree with its conclusion

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February 8, 2010 | Permalink | Comments (1) | TrackBack (0)

Sunday, February 7, 2010

Open Content: Court Of Appeals Of North Carolina Seemingly Misconstrues Best Evidence Rule In Child Abuse Appeal

Like its federal counterpartNorth Carolina Rule of Evidence 1002 provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by statute.

What this means is that this "Best Evidence Rule" is inapplicable when a party seeks to present testimony connected to a writing, recording, or photograph but is not seeking to prove the contents of the writing, recording, or photograph. For instance, if a defendant is charged with robbing a bank in the Bronx at 2:00 p.m. on February 5, 2010, he could testify that he was mailing a letter at a post office in Brooklyn at 2:00 p.m. on February 5, 2010. In that case, he would be presenting testimony connected to a writing -- the letter -- but he would not be seeking to prove the contents of the letter. The letter could be a love letter, a cable bill, or an employment application, and it wouldn't matter. The man would simply be seeking to prove that he was in Brooklyn at the time of the robbery in the Bronx. This is a point that the Court of Appeals of North Carolina seemingly misunderstood in its recent opinion in State v. Haas, 2010 348260 (N.C. 2010).

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February 7, 2010 | Permalink | Comments (0) | TrackBack (0)