EvidenceProf Blog

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

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Saturday, February 27, 2010

Complete Denial: Seventh Circuit Turns Aside Defendant's Fifth Amendment Argument Based Upon Rule Of Completeness

A defendant is on trial for defrauding the Medicare program. One piece of evidence that the prosecution admits against her is a redacted audio recording on which she seemingly makes incriminatory statements. On appeal, the defendant claims that the admission of the tape violated her Fifth Amendment privilege against self-incrimination because the redacted portions of the recording were exculpatory, but she would have needed to take the witness stand to explain why. How should the court rule? As the Seventh Circuit correctly found in its recent opinion in United States v. Phillips, 2010 WL 652852 (7th Cir. 2010), the court should found the argument without merit based upon the rule of completeness.

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February 27, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, February 26, 2010

Mississippi Mud: Court Of Appeals Of Mississippi Reverses Conviction Based Upon Impeachment Of Non-Testifying Criminal Defendant

Similar to its federal counterpartMississippi Rule of Evidence 609(a)(1) provides that 

For the purpose of attacking the character for truthfulness of a witness, (1) evidence that (A) a nonparty witness 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 (B) a party 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 party.  

As I always tell my Evidence students, the only purpose of impeachment is to show the jury (or judge) that a witness' testimony is not necessarily trustworthy. What this means is that a criminal defendant's prior convictions cannot be admitted to impeach him unless he chooses to testify at trial. What this also means is that the Court of Appeals of Mississippi had to reverse Willie Joe Robinson's conviction in its recent opinion in Robinson v. State, 2010 611504 (Miss.App. 2010).

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February 26, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 25, 2010

The AALS Poster Project: Eric E. Johnson's Intellectual Property & Disability

Eric E. Johnson presesented the poster Intellectual Property & Disability (Download Intellectual Property & Disability):

Intellectual Property & Disability 

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

Wednesday, February 24, 2010

The AALS Poster Project: Twinette Johnson's Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics"

Twinette Johnson presented the poster Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics" (Download Hot Topics):

Hot Topics 

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

Tuesday, February 23, 2010

The AALS Poster Project: Jessica Owley Lippmann's Conservation Easements and Global Climate Change

Jessica Owley Lippmann presented the poster Conservation Easements and Global Climate Change (Download Conservation Easements and Global Climate Change):

Conservation Easements and Global Climate Change 

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

Monday, February 22, 2010

Refresh My Recollection: SDNY Finds Production Of Notes Used Before Testifying To Be Necessary In The Interests Of Justice

Federal Rule of Evidence 612 indicates in relevant part that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.

So, when is production necessary in the interests of justice under Rule 612(2)? That was the question addressed by the Unites States District Court for the Southern District of New York in its recent opinion in Thomas v. Euro RSCG Life, 2010 WL 565391 (S.D.N.Y. 2010).

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

Sunday, February 21, 2010

Eyes Wide Shut, Take 2: Supreme Court Of Illinois Finds HGN Test Satisfies Frye Test, Just Not In The Case Before It

Back in October 2007, I posted an entry about People v. McKown, in which the Supreme Court of Illinois found that an Illinois trial court erred in taking judicial notice of the general acceptance of the reliability of Horizontal Gaze Nystagmus (HGN) test results in a drunk driving case. The court thus reversed the trial court's opinion, holding that a Frye hearing had to be held to determine whether there was general acceptance of the HGN test in the relevant scientific community. On Friday, the Supreme Court finally addressed the validity of that hearing in People v. McKown, 2010 WL 572082 (Ill. 2010), an opinion that is a victory for Illinois prosecutors in general but a loss for them in McKown itself.

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