EvidenceProf Blog

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

Saturday, February 20, 2010

Don't Deal In No Kind Of Hearsay: Pennsylvania Court Reverses Order Regarding Prisoner Under Residuum Rule

I have previously posted on this blog about the residuum rule, pursuant to which factual findings at an administrative hearing cannot be exclusively based on hearsay. In Pennsylvania, courts refer to this rule as the "Walker Rule" based upon the opinion of the Commonwealth Court of Pennsylvania in Walker v. Unemployment Compensation Board of Review, 367 A.2d 366 (Pa.Cmwlth. 1976), and in Speight v. Department of Corrections, application of this rule led to reversal of an order of the Department of Corrections.

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

Friday, February 19, 2010

Private Eyes, Take 2: Tenth Circuit Case Reveals Different Treatments Of Private Detectives And Governmental Case Agents Under Rule 615

A few weeks ago, I posted an entry about Federal Rule of Evidence 615, which provides that 

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

That post dealt with the recent opinion in United States v. McClendon2010 WL 272878 (6th Cir. 2010), in which the Sixth Circuit found, inter alia, that defense counsel's private investigator was not an "essential" person under Rule 615(3). The recent opinion of the Tenth Circuit in United States v. Lott, 2010 WL 529310 (10th Cir. 2010), reveals how courts treat governmental case agents under Rule 615 and raises questions about the Rule's fairness.

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

Thursday, February 18, 2010

Book 'Em Danno: First Circuit Finds That Booking Sheet Is Not Covered By Law Enforcement Exception In Rule 803(8)(B)

Federal Rule of Evidence 803(8) 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 (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) 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.

Rule 803(8)(B) contains what is known as the "law enforcement exception," pursuant to which police reports are inadmissible in a criminal case when offered by the prosecution. But does this exception cover routine, non-adversarial documents, such as booking sheets? That was the question of first impression addressed by the First Circuit in its recent opinion in United States v. Dowdell, 2010 WL 481416 (1st Cir. 2010).

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February 18, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 17, 2010

Double Waiver: Eleventh Circuit Finds Defendant Waived Rule 609 Issue But That Government Waived The Issue Of Defendant's Waiver

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

When a court does allow impeachment of a criminal defendant under this Rule, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's Rule 609 ruling by using such a technique. As the recent opinion of the Eleventh Circuit in United States v. Lewis, 2010 WL 438367 (11th Cir. 2000), makes clear, however, the government itself can waive the issue of the defendant's waiver.

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February 17, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 16, 2010

No Expertise Required: United States District Court For The District Of Colorado Notes Lack Of Affirmative Obligation On Courts To Exercise Their Rule 706 Powers

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness. 

But when should a court appoint an expert witness? And is there any affirmative obligation on courts to exercise their Rule 706 powers? According to the United States District Court for the District of Colorado, the answer to the latter question is "not really."

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February 16, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, February 15, 2010

I Swear: Court Of Appeals Of Minnesota Notes Flexibility Of Courts In Allowing Children To Be Sworn As Witnesses

Like its federal counterpartMinnesota Rule of Evidence 603 provides that

Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.   

And, as the recent opinion of the Court of Appeals of Minnesota in In the Matter of the Welfare of J.J.W., 2010 WL 431490 (Minn.App. 2010), makes clear, courts have been flexible in allowing children to be sworn as a witness.

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February 15, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 14, 2010

Impeachable Offenses: Opinion Reveals Differences Between Federal And Indiana Rules Of Evidence 609(a)(1)

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.
As the recent opinion of the Court of Appeals of Indiana in Perry v. State, 2010 WL 415281 (Ind.App. 2010), makes clear, Indiana Rule of Evidence 609(a) is both narrower and broader than its federal counterpart.

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February 14, 2010 | Permalink | Comments (0) | TrackBack (0)