EvidenceProf Blog

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

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Monday, January 31, 2011

A Loan Tonight: WDNC Finds Evidence of Bank's Discontiuing Of Non-Income Verification Loans Inadmissible Under Rule 407

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

And, as the recent opinion of the United States District Court for the Western District of North Carolina in Suntrust Mortg., Inc. v. Busby, 2011 WL 251201 (W.D.N.C. 2011), makes clear, this Rule excludes not only evidence of changes to instrumentalities after they allegedly caused accidents (e.g., adding a handrail to stairs that a victim fell down) but also evidence of, say, a bank discontinuing the use of non-income verification loans.

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January 31, 2011 | Permalink | Comments (1) | TrackBack (0)

Sunday, January 30, 2011

Sleep Experts: Ninth Circuit Allows Expert Testimony Under Rule 703 Based Upon Alleged Juror Misconduct

Federal 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 that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Meanwhile, Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

So, let's say that a juror allegedly engages in misconduct during trial/deliberations. Obviously, jurors cannot testify about this misconduct after a verdict is entered in an attempt to impeach the verdict. But can these jurors tell an expert about this misconduct, with the expert then testifying that it is his opinion that the verdict was improperly reached? According to the recent opinion of the Ninth Circuit in Anderson v. Terhune, 2011 WL 148912 (9th Cir. 2011), the answer is "yes." I'm not sure that I agree.

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January 30, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 29, 2011

Hearing Loss: U.S. Court Of Appeals For Veterans Claims Uses Rule 803(7) To Prove Patient's Lack Of Service-Related Tinnitus

Federal Rule of Evidence 803(7) provides an exception to the rule against hearsay for 

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

And, as the recent opinion of the United States Court of Appeals for Veterans Claims in Perkins v. Shinseki, 2011 WL 182653 (Vet.App. 2011), makes clear, the lack of evidence of symptoms in contemporaneous medical records can be admitted under Rule 803(7) to prove the nonoccurrence of such a condition.

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January 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, January 28, 2011

AALS Poster Project: Elizabeth Burleson's Energy Innovation: International Law and the UN

Elizabeth Burleson presented the poster Energy Innovation: International Law and the UN (Download Burleson Poster):

Burleson Poster(1)

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January 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 27, 2011

AALS Poster Project: Emily Zimmerman's Do Law Students Want Multiple Graded and Ungraded Assignments? Results from an Empirical Research Project

Emily Zimmerman presented the poster Do Law Students Want Multiple Graded and Ungraded Assignments? Results from an Empirical Research Project ( Download Zimmerman Poster):

Zimmerman Poster(2)

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January 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 26, 2011

AALS Poster Project: Judith FIscher's Got Issues? An Empirical Study about Framing Them

Judith Fischer presented the poster Got Issues? An Empirical Study about Framing Them (Download Fischer Poster):

Fischer Poster(2)

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January 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 25, 2011

AALS Poster Project: Gwynne Skinner's Human Rights Litigation: Hamad v. Gates, et al

Gwynne Skinner presented the poster, Human Rights Litigation: Hamad v. Gates, et al (Download Skinner Poster):

Skinner Poster(2)

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January 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, January 24, 2011

AALS Poster Project: Sabrina DeFabritiis' Barking Up The Wrong Tree: Companion Animals, Emotional Damages And The Judiciary's Failure To Keep Pace

Sabrina DeFabritiis presented the poster Barking Up The Wrong Tree: Companion Animals, Emotional Damages And The Judiciary's Failure To Keep Pace (Download DeFabritiis Poster):

DeFabritiis Poster(1)

 

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January 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 23, 2011

AALS Poster Project: Victoria Sutton's Biosecurity Codes and Ethics, BWC Participants 2009

Victoria Sutton presented the poster Survey: Biosecurity Codes and Ethics, BWC Participants 2009 (Download Sutton Poster):

Slide1

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January 23, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 22, 2011

AALS Poster Project: Chrstine Rollins' Do you know the learning-style preferences of your law students?

Christine Rollins presented the poster Do you know the learning-style preferences of your law students?(Download Rollins Poster):

Rollins Poster(1)

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January 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, January 21, 2011

AALS Poster Project: Eric Gouvin's Entrepreneurship Education for Law Schools

Eric Gouvin presented the poster Entrepreneurship Education for Law Schools (Download Gouvin Poster):

Gouvin Poster(1)

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January 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 20, 2011

AALS Poster Project: Beyond Etiquette: Bringing E-Communications into the LRW Classroom, by Ellie Margolis & Kristen Murray

Ellie Margolis and Kristen Murray presented the poster Beyond Etiquette: Bringing E-Communication into the LRW Classroom (Download Margolis:Murray Poster):

Margolis:Muray Poster(1)  

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January 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 19, 2011

AALS Poster Project: Jeffrey Proske's 1L Journaling Project

Jeffrey Proske presented the poster 1L Journaling Project (Download Proske Poster):

Proske Poster(1)

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January 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 18, 2011

AALS Poster Project: Jessica Dixon Weaver's The Principle of Subsidiarity Applied: Reforming the Legal Framework to Capture the Psychological Abuse of Children

Jessica Dixon Weaver presented the poster The Principle of Subsidiarity Applied: Reforming the Legal Framework to Capture the Psychological Abuse of Children (Download Weaver Poster):

Weaver Poster(2) 

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January 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, January 17, 2011

Rescue 911: Court Of Appeals Of Minnesota Finds 911 Call Authenticated, But Not Under Rule 901(b)(5)

Like its federal counterpart, Minnesota Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

And, like its federal counterpart, Minnesota Rule of Evidence 901(b)(5) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:...

(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.

As the above language and the recent opinion of the Court of Appeals of Minnesota in Adams v. State, 2011 WL 9162 (Minn.App. 2011), however, Rule 901(b)(5) is merely an illustration, and voice can be authenticated through other means as long as the standard set forth in Rule 901(a) is satisfied.

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January 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 16, 2011

I Need A Remedy: DDC Precludes Evidence Of E-Mail Referencing Subsequent Remedial Measure After Traffic Death

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

And, as the recent opinion of the United States District Court for the District of Columbia in Cohen v. District of Columbia, 2011 WL 108713 (D.D.C. 2011), makes clear, Rule 407 covers not solely the fact of a subsequent remedial measure but also communications related to such measures. 

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January 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 15, 2011

Going Into Withdrawal: Western District Of Kentucky Finds Evidence Related To Plea Withdrawal Indamissible Under Rule 410

Federal Rule of Evidence 410 states in relevant part that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn...

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas....

Meanwhile, Federal Rule of Criminal Procedure 11(f) states that

The admissibility or inadmissibility of a plea, a plea discussion, and any related statement is governed by Federal Rule of Evidence 410.

So, let's say that a defendant pleads guilty pursuant to a plea agreement. Then, under the advisement of new counsel, the defendant moves to withdraw her guilty plea, supplying an affidavit supporting the withdrawal of her guilty plea. Thereafter, a hearing is held to examine the withdrawal of her plea, with the defendant testifying as to her innocence and offering a recently discovered letter. If the court allows the defendant to withdraw her guilty plea, should the prosecution be able to admit the defendant's affidavit, testimony, and/or letter at the ensuing trial? According to the recent opinion of the United States District Court for the Western District of Kentucky in United States v. Young, 2011 WL 96627 (W.D.Ky. 2011), the answer is "no."

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January 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, January 14, 2011

AALS Poster Project: Kathy Cerminara's Improving Access to Hospice Care for Hispanic and African-American Patients

Kathy Cerminara presented the poster Improving Access to Hospice Care for Hispanic and African-American Patients (Download Cerminara Poster):

Cerminara Poster(2)   

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January 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 13, 2011

AALS Poster Project: Joyce Savio Herleth's Three Steps to Perfect Registration Advising

Joyce Savio Herleth presented the poster Three Steps to Perfect Registration Advising (Download Herleth Poster):

Helreth Poster (1)    

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January 13, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 12, 2011

AALS Poster Project: Courtney Lee's Bringing Academic Support to Life with Technology

Courtney Lee presented the poster Bringing Academic Support to Life with Technology ( Download Lee Poster):

Lee Poster(1)

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January 12, 2011 | Permalink | Comments (0) | TrackBack (0)