EvidenceProf Blog

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

Tuesday, January 11, 2011

AALS Poster Project Leah Chan Grinvald's Shaming Tradema®k Bullies

Leah Chan Grinvald presented the poster Shaming Tradema®k Bullies (Download Grinvald Poster):

Grinvald Poster(1)

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January 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, January 10, 2011

AALS Poster Project: Nicole Chong's How the 1L Legal Analysis and Writing Course Can Bring the "Real World" of Law Practice to the Classroom

Nicole Chong presented the poster, How the 1L Legal Analysis and Writing Course Can Bring the "Real World" of Law Practice to the Classroom (Download Chong Poster):

Chong Poster(1)

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January 10, 2011 | Permalink | Comments (0) | TrackBack (0)

The AALS Poster Project, Year Two: An Introduction

For the second year, I am doing a series of posts about the posters presented at the AALS conference and the professors presenting them. Here is the introductory post from last year explaining the project: 

In its call for proposals last year, the Legal Writing Institute noted that "[p]oster presentations are an increasingly popular way to present scholarly and pedagogical ideas" but that "poster presentations are a relatively new format for the legal writing community." The same applies to the legal academy as a whole. "At the 2005 [AALS] Annual meeting in San Francisco, the AALS Section on Professional Responsibility sponsored posters on empirical research." Thereafter, "[t]he AALS Committee on Sections and the Annual Meeting was delighted by this innovation and decided that all AALS Sections should have the opportunity to sponsor posters at the 2006 AALS Annual Meeting."
The way I see things, though, not enough professors have availed themselves of this innovation. There are probably a variety of reasons for this insouciance, probably not the least of which is that the poster presentations are scheduled for the same time as AALS panels, meaning that attendees either have to leave panels early or attend panels late to be able to interact with poster presenters during their designated hours. The AALS later posts PDFs of these posters to its Annual Meeting sites (see herehere, and here), but I'm guessing that not many people visit these sites after these conferences are over, making them sort of like the Ark of the Covenant at the end of "Raiders of the Lost Ark." Besides, if you download one of these posters, all you have is the poster, not the presenter's reason for creating it or explanation of it.
Thus, this year, I decided to start the AALS Poster project. Pursuant to this project, I studied each of the posters at the conference and interacted with each of the presenters during their designated hours. I asked the presenters about why they created their posters, the thesis of their posters, how the posters fit into their scholarship, etc. Over the next few weeks, I will spotlight each of these posters and their presenters on this blog, and I hope that these posts draw some of the attention that these posters and presenters deserve. Of course, nothing substitutes perfectly for the real thing, and I would recommend that attendees at successive AALS conferences stop by during the designated hours and discuss the posters with their presenters. I found such discussions to be very rewarding.


January 10, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 9, 2011

Open In Case Of My Death, Take 4: Court Of Appeals Of Wisconsin Grapples With Forfeiture By Wrongdoing In Jensen Appeal

I have written three posts on this blog (here, here, and here) about the case of Mark Jensen. You might recall that this was the case where Mark Jensen was accused of  poisoning his wife Julie with two doses of ethylene glycol, commonly known as antifreeze, so that he could be with his new girlfriend.  The key evidentiary issue in the case concerned the admissibility of a note that the wife gave to a neighbor which indicated that Mark should be the first suspect if she died.  This evidentiary issue eventually reached the Supreme Court of Wisconsin, and the majority opinion in State v. Jensen, 727 N.W.2d 518, 521 (Wis. 2007), held that the note was admissible under the forfeiture by wrongdoing doctrine, which allows for hearsay statements by prospective witnesses to be admissible when the defendant rendered the prospective witness unavailable to testify at trial

Jensen was thereafter convicted, but the United States Supreme Court subsequently issued Giles v. California, which held that the forfeiture by wrongdoing doctrine does not apply when the defendant merely renders a prospective witness unavailable to testify against him at trial; instead, the doctrine applies "only if the defendant has in mind the particular purpose of making the witness unavailable." Therefore, Jensen appealed, with the Court of Appeals of Wisconsin recently resolving that appeal in State v. Jensen, 2010 WL 5371177 (Wis.App. 2010).

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January 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, January 8, 2011

It's Harmless: Court Of Appeals Of Utah Finds Bolstering By Grandmother Harmless In Sexual Assault Appeal

It is well established that the credibility of a witness is a question solely for the jury's determination. This is a large part of the reason why polygraph results are inadmissible. It also explains why a child psychologist cannot take the witness stand and testify that he believes that the alleged victim is being honest when she claims that she was sexually assaulted by the defendant. But what if such improper comment on credibility comes from a lay, rather than an expert witness? As the recent opinion of the Court of Appeals of Utah in State v. King, 2010 WL 5393676 (Utah App. 2010), makes clear, the court is likely to find harmless error.

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January 8, 2011 | Permalink | Comments (1) | TrackBack (0)

Friday, January 7, 2011

Black Box: Supreme Judicial Court Of Massachusetts Allows Jury Impeachment On Racial Bias, Upholds Verdict

An African-American man is convicted of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, of aggravated rape, and of aggravated burglary. After the verdict is entered, defense counsel learns that 

at one point during the deliberations, [Juror Y] stood at the easel in the jury room explaining her view of the evidence, which was challenged by other jurors in a heated discussion. In defense of her position, Juror Y blurted out that the victim's injuries were the result of a beating administered by a big black man. Juror Y's words provoked an immediate reaction from [a] black female juror, who asked Juror Y what being black had to do with it and called her a racist. Juror Y denied she was racist, responding that the defendant was a big black man and that her words were an accurate description. The two swore at each other and the black female juror approached the easel while Juror Y returned to her seat. A juror put a leg up to separate them, but the judge found that this gesture was unnecessary as the two remained apart and their disagreement remained verbal, not physical. The confrontation ended when Juror Y said she meant no harm, and the jury foreperson called for a break in the deliberations.

Should the jurors be able to impeach their verdict, and should such impeachment lead to a new trial? According to the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. McCowen, 2010 WL 4984854 (Mass. 2010), the answer to the first question is "yes," but the answer to the second question is "no."

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January 7, 2011 | Permalink | Comments (1) | TrackBack (0)

Thursday, January 6, 2011

Caller ID: Court Of Appeals Of Texas Allows For Telephone Conversation Authentication, But Not Under Rule 901(b)(6)

Like its federal counterpart, Texas Rule of Evidence 901(b)(6) 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:

(6) Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if:

(A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called; or

(B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

As the above preliminary language and the recent opinion of the Court of Appeals of Texas, Houston, in Mosley v. State, 2010 WL 5395655 (Tex.App.-Hous. [1 Dist.] 2010), make clear, however, telephone conversations can be authenticated even if all of the elements of Rule 901(b)(6) are not satisfied. 

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January 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 5, 2011

Jury Duty?: Eleventh Circuit Allows For Authentication Via Jury Comparison Under Rule 901(b)(3)

Federal Rule of Evidence 901(b)(3) allows for authentication by "[c]omparison by the trier of fact or by expert witnesses with specimens which have been authenticated." But do judges actually allow for such authentication in practice? In Jackson v. Denno, 378 U.S. 368 (1964), the Supreme Court disapproved of a procedure under which questionable confessions were submitted to jurors to determine their voluntariness. If jurors found confessions to be voluntary, they would be admitted, and the jurors could use the confessions as evidence of guilt. If jurors found confessions to be involuntary, they would be excluded, and judges would tell jurors not to use the confessions as evidence of guilt. According to the Court, the problem was that in this latter case, jurors couldn't be trusted to completely ignore the involuntary confessions and could use them to find defendants guilty in close cases (and this same logic eventually led to the creation of the Bruton doctrine).

This being the case, how can courts allow jurors to determine authenticity under Rule 901(b)(3)? If there's an incriminatory writing allegedly written by the defendant, wouldn't submitting the disputed writing to the jury create the same problem raised above? I posed this question a while ago on the Evidence Professor Listserv, and one response was that courts don't actually allow for authentication via jury comparison under Rule 901(b)(3). Instead, in practice, what typically happens is that before a judge submits a disputed writing to jurors, the judge first finds that reasonable jurors could find that the defendant or other party wrote the disputed writing by a preponderance of the evidence -- establishing authenticity -- and the jurors then decide what weight to give to the evidence. And indeed, most cases appear to have reached this exact conclusion. That was not the case, though, with the recent opinion of the Eleventh Circuit in United States v. Ramentol, 2010 WL 5373885 (11th Cir. 2010).


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January 5, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 4, 2011

Semper Paratus?: Eleventh Circuit Finds Redacted Coast Guard Situation Report Admissible Despite Rule 803(8)(B)

Federal Rule of Evidence 803(8)(B) 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...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

In other words, police reports and similar reports are inadmissible against defendants in criminal cases and not covered by Rule 803(8)(B). That said, it is well established that documents recording routine, objective observations, made as part of the everyday function of the preparing official or agency are precisely the type of reliable record envisioned by the drafters of Rule 803(8). This is why, for example, booking sheets are admissible under Rule 803(8)(B) despite its limiting language.

But what if the prosecution wants to introduce a report that would otherwise be inadmissible under Federal Rule of Evidence 803(8)(B) by redacting the report so that it is akin to a booking sheet or similar document? Would that redacted report be admissible under Rule 803(8)(B)? According to the recent opinion of the Eleventh Circuit in United States v. Reyes, 2010 WL 5297202 (11th Cir. 2010), the answer is "yes." I disagree.

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January 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, January 3, 2011

Lake Consequence: Supreme Court of Idaho Finds Witness Can't Testify About Factual Findings In Public Report

Idaho Rule of Evidence 803(8)(D) provides an exception to the rule against hearsay for

Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or data compilations in any form of a public office or agency setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule:

(D) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

And, as the recent opinion of the Supreme Court of Idaho in Kuhn v. Coldwell Banker Landmark, Inc., 2010 WL 5186683 (Idaho 2010), makes clear, a party cannot get around Rule 803(8)(D) by simply having the person who prepared the report testify himself regarding his factual findings.

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January 3, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, January 2, 2011

Polly Wants Some Hearsay: Are Repeated Statements By Parrots Hearsay?

A few weeks ago, there was a discussion on the Evidence Professor listserv about a recent article in the ABA Journal:

Parrot’s Chilling Comments Aid Police in Elder Abuse Case

By Martha Neil

Dec 8, 2010, 01:12 pm CST

A talking parrot provided what could be taken as chilling evidence in the case of a 60-year-old South Carolina woman charged with neglecting her 98-year-old mother, who was found on the verge of death suffering from severe bedsores.

"The parrot was mimicking, 'Help me. Help me.' Then he would laugh," St. George Police Lt. Eric Bonnette tells the Charleston Post and Courier. "We think he was mimicking the mother when he said, 'Help me. Help me,' and mimicking the daughter when he laughed."

Anne Copeland died at a hospital Tuesday after being found by authorities in poor condition at her home Monday, the newspaper says. Her daughter, Gloria Park Clark, has been charged with abuse and neglect resulting in the death of a vulnerable adult.

Here are my thoughts: 

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January 2, 2011 | Permalink | Comments (1) | TrackBack (0)

Saturday, January 1, 2011

By Way Of Limitation: Supreme Court Of Arizona Addresses Inadequate Limiting Instructions Under Rule 105

Like its federal counterpart, Arizona 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.

And, as the recent opinion of the Supreme Court of Arizona in State v. Gomez, 2010 WL 5173627 (Ariz. 2010), makes clear, the submission of an inadequate instruction does not waive the defendant's right to a limiting instruction in a case covered by Rule 105.


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