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.
Friday, February 26, 2010
Mississippi Mud: Court Of Appeals Of Mississippi Reverses Conviction Based Upon Impeachment Of Non-Testifying Criminal Defendant
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).
Thursday, February 25, 2010
Wednesday, February 24, 2010
The AALS Poster Project: Twinette Johnson's Reintroducing First-Year Students to Policy Based Reasoning Using "Hot Topics"
Tuesday, February 23, 2010
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).
Sunday, February 21, 2010