EvidenceProf Blog

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

Saturday, March 6, 2010

Remote Control? Pennsylvania Court Upholds Admission Of M.O. Evidence Despite Its Remoteness

Pennsylvania does not have a counterpart to Federal Rule of Evidence 414(a), which provides that

In a criminal case in which the defendant  is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

That said, the state does have Pennsylvania Rule of Evidence 404(b), its counterpart to Federal Rule of Evidence 404(b), which provides that evidence of other crimes, wrongs, or acts of an individual is admissible for certain purposes such as proving common plan or scheme/m.o. And, in its recent opinion in Commonwealth v. Aikens, 2010 WL 737642 (Pa.Super. 2010), the Superior Court of Pennsylvania found that this rule covered a prior act of child molestation by a criminal defendant, despite its remoteness.

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March 6, 2010 | Permalink | Comments (0) | TrackBack (0)

Friday, March 5, 2010

Victim Of Circumstance?: Court Of Appeals Of Ohio Makes Seemingly Strange Hearsay Ruling Regarding Criminal Defendant's Statements

Ohio Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness.

And Ohio Rule of Evidence 803(2) provides an exception to the rule against hearsay for 

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

The recent opinion of the Court of Appeals of Ohio, Eighth District, in State v. Bunch, 2010 WL547402 (Ohio App. 8 Dist. 2010), seems to imply, though, that criminal defendants can never use these exceptions to introduce their own, exculpatory statements. I disagree.

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March 5, 2010 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 4, 2010

The Underlying Theme: Court Of Appeals Of Tennessee Doesn't Require Deposition's Disclosure Despite Rule 705

Like its federal counterpartTennessee Rule of Evidence 705 provides that 

The expert may testify in terms of opinion or inference and give reasons without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination.

A defendant's expert offers opinion testimony after testifying that she read an otherwise inadmissible deposition along with other material provided to her in order to understand what happened in the case. Should that expert be required to disclose the contents of that deposition on cross-examination. I say "yes." In its recent opinion in Melton v. BNSF Ry. Co., 2010 WL 597457 (Tenn.Ct.App. 2010), the Court of Appeals of Tennessee said "no."

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March 4, 2010 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 3, 2010

Let's Compromise: Court Reverses Convictions Of Fraternity's Former National Treasurer's Under Rule 408

Federal Rule of Evidence 408 provides:

(a) Prohibited uses.--Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

(b) Permitted uses.--This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

In United States v. Davis, 2010 WL 668879 (D.C. Cir. 2010), the United States Court of Appeals for the District of Columbia reversed the convictions of a former national treasurer of the Phi Beta Sigma fraternity for bank fraud, first-degree fraud, and first-degree theft based upon the alleged improper admission of evidence in violation of Federal Rule of Evidence 408. I disagree.

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March 3, 2010 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 2, 2010

My New Article: Lawyers, Guns, and Money: Why the Tiahrt Amendment’s Ban on the Admissibility of ATF Trace Data in State Court Actions Violates the Commerce Clause and the Tenth Amendment

Everyone today is understandably focused on McDonald v. City of Chicago, in which the Supreme Court could eventually find that the Second Amendment is incorporated through the Fourteenth Amendment's Due Process Clause and/or that the Second Amendment is one of the privileges and immunities of the citizens of the United States. While Chicago's gun laws could be deemed unconstitutional as a result of this opinion, they also spawned Congressional legislation which arguably exceeded Congress' Commerce Clause power and violated the Tenth Amendment. That legislation is the Tiahrt Amendment, and, according to my friend at the Brady Center to Prevent Gun Violence, the issue of whether the Amendment is (un)constitutional is set to become the new big issue after McDonald v. City of Chicago. Here is the abstract of my article on the issue, which you can now download from SSRN:

The Tiahrt Amendment provides in relevant part that ATF trace data "shall be inadmissible in evidence, and shall not be used, relied on, or disclosed in any manner, nor shall testimony or other evidence be permitted based on the data, in a civil action in any State (including the District of Columbia) or Federal court..." This Amendment has hamstrung cities and localities which, in an effort to combat crime with civil litigation, have brought actions against the gun industry sounding in public nuisance, with trace data being crucial to the success of such actions. Because this Amendment regulates state as well as federal court proceedings, it is defensible, if at all, under Congress’ Commerce Clause power.

President Obama backed away from a campaign promise to repeal the Amendment, but the Amendment appears vulnerable to constitutional attack. In United States v. Lopez, the Supreme Court found that the Gun-Free School Zones Act (GFSZA) of 1990 exceeded Congress' Commerce Clause power because it was directed at criminal conduct, not commerce, and in Printz v. United States, it found that interim provisions in the Brady Handgun Violence Prevention Act violated the Tenth Amendment because they purported to direct state executive officers to participate in the administration of a federally enacted regulatory scheme. This article argues that the state court evidentiary provisions on the Tiahrt Amendment are not meaningfully different from the GFSZA and the interim Brady provisions, rendering them similarly indefensible under the Commerce Clause and the Tenth Amendment.


March 2, 2010 | Permalink | Comments (0) | TrackBack (0)

Monday, March 1, 2010

Emergency Urgent?: Supreme Court Grants Cert In Confrontation Clause Case Concerning Preliminary Inquiries of Wounded Citizens

Today, the Supreme Court granted cert in Michigan v. Bryant, where the issue is

Whether preliminary inquiries of a wounded citizen concerning the perpetrator and circumstances of the shooting are nontestimonial because they were “made under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency,” including not only aid to a wounded victim, but also the prompt identification and apprehension of an apparently violent and dangerous individual?

Courtsey of SCOTUSblog, here are the opinion below (from the Supreme Court of Michigan), the petition for certiorari, and the brief in opposition. I am finishing off an article for the spring submission cycle, so I haven't had a chance to look at these documents in much detail, but it seems to me that the above issue is highly dependent on the facts, so I am not sure what type of opinion we should expect to see from the Supreme Court. I will have more on this case over the next few days.


March 1, 2010 | Permalink | Comments (1) | TrackBack (0)

Northwestern Colloquy Publishes Final Version of My Essay, Crossing Over

Yesterday, the Northwestern Colloquy published my essay, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes. As with my previous essay, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality, the editors at Northwestern did a great job of editing the piece, resulting in some very positive changes and additions to it since the version I previously posted on SSRN


March 1, 2010 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 28, 2010

For A Limited Time: Opinion Reveals That Mississippi Courts Once Required Sua Sponte Limiting Instructions After Objection To Character Evidence

Like its federal counterpartMississippi Rule of Evidence 105 provides that

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.  

As the language of the Rule makes clear, a court only needs to issue a limiting instruction "upon request." As the recent opinion of the Court of Appeals of Mississippi in Lindsey v. State, 2010 WL 615649 (Miss.App. 2010), makes clear, such a request was not always required.

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February 28, 2010 | Permalink | Comments (0) | TrackBack (0)