EvidenceProf Blog

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

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Wednesday, May 11, 2011

The Areas Of My Expertise: DRI Notes Split About Whether Indigent Party Status Should Be A Factor In Rule 706 Expert Appointment

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

So, should a court consider the fact that one or more of the parties is indigent in deciding whether to appoint an expert under Rule 706(a)? As the recent opinion of the United States District Court for the District of Rhode Island in Paiva v. Bansal, 2011 WL 1595425 (D.R.I. 2011), makes clear, courts are split on this issue.

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

Tuesday, May 10, 2011

Article of Interest: Laura Appleman's The Plea Jury

Recently, I read an interesting opinion by the District of Columbia Court of Appeals, Barrows v. United States, 15 A.3d 673 (D.C. 2011) (Download Barrows Opinion). In Barrows, the trial court, without an objection from the defendant, closed the courtroom during voir dire. On appeal, the defendant claimed that the closing of the courtroom violated his Sixth Amendment right to a public trial and that an unidentified spectator preserved this issue for appellate review. The defendant acknowledged that the trial transcript contained no actual spectator objection but asserted that such an objection could be inferred from the following remark from the judge which was recorded in the transcript: "Not okay?...Well, ma'am, it's kind of hard for you to stay while we do this...." The District of Columbia Court of Appeals found that this preservation argument could potentially be viable but concluded that "[e]ven assuming that there was such a spectator objection...[t]he (putative) spectator objection may not have been a rights-based or other legal objection." (Ultimately, however, the court found that the trial court's error in closing the courtroom was structural but also, oddly, harmless, a seemingly oxymoronic conclusion that I will address in a later post).

This opinion was the first thing that I thought about after reading the excellent new article, The Plea Jury, 85 Ind. L.J. 731 (2010), by Laura Appleman, a professor at the Willamette University College of LawThe Plea Jury addresses the assembly line justice being meted out in courtrooms across the country. The vast majority of criminal cases in this country are resolved by plea bargain and without any jury/community involvement. After the prosecutor and the defendant reach a plea bargain, the only back-end quality control occurs at the plea hearing, where the "judge ascertains that the plea is knowing, intelligent, and voluntary." Julie R. O'Sullivan, The Last Straw:  The Department of Justice’s Privilege Waiver Policy and the Death of Adversarial Justice in Criminal Investigations of Corporations, 57 DEPAUL L. REV. 329, 361 (2008). This process has been described as a "a five-minute interview of the person, under Rule 11, getting a kind of half-hearted, scripted confession as part of the guilty plea process." Panel Discussion, The Expanding Prosecutorial Role from Trial Counsel to Investigator and Administrator, 26 FORDHAM URB. L.J. 679, 684 (1999). Professor Appleman's intriguing proposal is to seat a plea jury, "a lay panel of citizens would listen to the defendant's [plea] allocution and determine the acceptability of the plea and sentence, reinvigorating the community's right to determine punishment for offenders."

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May 10, 2011 | Permalink | Comments (1) | TrackBack (0)

Monday, May 9, 2011

We The Jury, Take 3: Illinois To Consider Codifying Procedure For Jury Questioning During Civil Trials

Last September, the Supreme Court of Illinois approved and promulgated Illinois Rules of Evidence, which took effect on January 1, 2011, making Illinois one of the last states to codify their rules of evidence. Now, if a proposal before the Illinois Supreme Court Rules Committee passes, Illinois will join other jurisdictions that have codified a procedure for permitting jurors to ask questions during (civil) trials.

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

Sunday, May 8, 2011

10 Years Have Got Behind: DNH Finds Rule 609(b) Applies To Conviction Despite Plaintiff's Delay In Suing & Continuance

Federal Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the character for truthfulness of a witness,...evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.

Meanwhile, Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, if a witness was convicted (as defined in Rule 609(b)) of a crime of dishonesty or false statement 10 years or less before the subject trial, his conviction is per se admissible to impeach him. But if that conviction was more than 10 years before trial, the conviction is only admissible if its probative value substantially outweighs its prejudicial effect. So, what happens if a plaintiff gets injured at a ski resort, waits 3 years to sue the resort, and then requests a continuance, with the result being that the trial is held just after the 10 year window on his prior conviction has elapsed? According to the recent opinion of the United States District Court for the District of New Hampshire in Herbst v. L.B.O. Holding, Inc., 2011 WL 1655711 (D.N.H. 2011), the answer is that Rule 609(b)'s balancing test applies unless there is evidence that the plaintiff manipulated the calendar or the scheduling process.

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May 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Saturday, May 7, 2011

Word Perfect?: 11th Circuit Finds Prosecution Properly Authenticated IMs Cut-And-Pasted Into Word Document

On Wednesday, I posted an entry about the Court of Appeals of Maryland finding that the prosecution failed to properly authenticate a MySpace page containing a threat to prospective witness as one belonging to the defendant's girlfriend. Today's post deals with the recent opinion of the Eleventh Circuit in United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), which dealt, inter alia, with the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

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

Friday, May 6, 2011

Article Of Interest: Cynthia Jones' A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. I have been interested in the question of when evidence is "material" for quite some time. Indeed, the first evidence article that I ever wrote addressed the circuit split over whether and when inadmissible evidence is "material" and can form the basis for a Brady violation (see here). And, I've taken up the issue a few times on this blog, writing about cases in which courts decided whether the following evidence was "material": (1) evidence of a jailhouse snitch's prior convictions (No) (here); (2) evidence that an eyewitness was legally blind (No, but then Yes) (here and here); (3) evidence that a confidential informant had been giving false reports (Yes) (here); and (4) inadmissible evidence (as noted, courts are split (here).

In her terrific recent article, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010), Cynthia Jones, a professor at the American University Washington College of Law, took up a Brady issue I hadn't previously considered: What should be the remedy/penalty for a Brady violation? And, I think that the solution(s) she poses are fascinating and could be a real game changer in terms of how we think about Brady.

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

Thursday, May 5, 2011

Avoiding A Confrontation, Take 5: My Take On The Supreme Court's Impending Opinion In Bullcoming v. New Mexico

I haven't posted on it yet, so today I thought that I would post an entry about the Supreme Court's impending opinion in Bullcoming v. New Mexico and my take on the case. The issue presented to the Supreme Court is 

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

As readers of this blog know, this is an issue of some interest to me (see, e.g., my posts herehere, and here). So, what did the Supreme Court of Nevada hold in Bullcoming v. New Mexico, 226 P.3d 1 (N.M. 2010), and what is the United States Supreme Court likely to hold?

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

Wednesday, May 4, 2011

It's My Space, That's Why They Call It MySpace, Take 6: Court Of Appeals Of Maryland Reverses MySpace Authentication Ruling

Last June, I posted an entry about the opinion of the Court of Special Appeals of Maryland in Griffin v. State, 2010 WL 2105801 (Md.App. 2010). The facts in that case were as follows:

A defendant is charged with second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. At the defendant's first trial, a witness testifies that he did not see the defendant pursue the victim into the bathroom (where he died) with a gun. The first trial ends in a mistrial, and, at a second trial, the witness changes his testimony and testifies that the defendant was the only person in the bathroom, other than the victim, when the fatal shots were fired. The witness claims that he fabricated his testimony at the first trial because the defendant's girlfriend threatened him. To corroborate this claim, the prosecution introduces into evidence a redacted printout obtained from a MySpace profile page allegedly belonging to the defendant's girlfriend, which said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant is thereafter convicted. Was that page properly admitted, and how can parties generally authenticate MySpace pages and comments as belonging to a particular person

(Side Note: The "snitches get stitches" threat seems pretty popular, appearing in 20 cases in the Westlaw ALLSTATES database and 13 cases in the ALLFEDS database, with most of its appearances being in the last few years. I wonder whether the threat would be enough, in and of itself, to support a claim of forfeiture by wrongdoing?)

According to the Court of Special Appeals of Maryland, the answer could be found in Maryland Rule of Evidence 5-901(b)(4), which provides that evidence can be authenticated by

Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.

Applying this rule, the court found that the prosecution properly authenticated the MySpace page as a page belonging to the appellant's girlfriend, Ms. Barber, because

The MySpace profile printout featured a photograph of Ms. Barber and appellant in an embrace. It also contained the user's birth date and identified her boyfriend as "Boozy." Ms. Barber testified and identified appellant as her boyfriend, with the nickname of "Boozy." When defense counsel challenged the State to authenticate the MySpace profile as belonging to Ms. Barber, the State proffered Sergeant Cook as an authenticating witness. He testified that he believed the profile belonged to Ms. Barber, based on the photograph of her with appellant; Ms. Barber's given birth date, which matched the date listed on the profile; and the references in the profile to "Boozy," the nickname that Ms. Barber ascribed to appellant.....

On the record before us, we have no trouble concluding that the evidence was sufficient to authenticate the MySpace profile printout. Therefore, the trial court did not err or abuse its discretion in admitting that document into evidence.

Last week, in its opinion in Griffin v. State, 2011 WL 1586683 (Md. 2011), the Court of Appeals of Maryland disagreed and reversed.

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May 4, 2011 | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 3, 2011

Article Of Interest: Jean Fleming Powers' Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm—Can Hard Cases Make Good Law?

Back in 2008, I wrote an essay for the Northwestern University Law Review Colloquy entitled, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. The piece was inspired by the Alton Logan case (blogged about here, here, here, and here), in which Alton Logan languished in prison for 26 years while two attorneys failed to reveal that their client told them in confidence that he committed the crime for which Logan had been convicted. The attorneys kept mum based upon the duty of confidentiality owed by lawyer to client, and my argument was that an existing exception to the duty of confidentiality should be read to allow disclosure of client confidences in cases like the Alton Logan case. Specifically, Model Rule of Professional Conduct 1.6(b)(1) provides that

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm....

My claim was that this exception should be read to create a wrongful incarceration/execution exception to attorney-client confidentiality. I think that if an individual like Alton Logan is convicted and sentenced to die, it is easy to see the argument that a lawyer revealing that his client admitted committing the crime for which Logan was convicted would or at least could prevent reasonably certain death. But what about if an individual like Logan is sentenced to something less than death? Would disclosure be reasonably necessary to prevent reasonably certain death or substantial bodily harm? This argument was a bit more of a stretch, but I claimed that the answer was "yes" because 

-in comparison to the non-incarcerated, inmates face an increased risk of physical violence based upon factors such as the concentration of violent individuals, overcrowding, prison culture, the inability of prisoners to physically separate themselves, the prevalence of drug use, and prison guard brutality;

-inmates experience heightened rates of communicable diseases contracted vis a vis the general population, perhaps explained by prison overcrowding (and prisoners accordingly living in close quarters) and compounded by generally poor medical screening and treatment in prisons;

-the consensus that inmates are subjected to an increased risk of same sex rape, with one study revealing that 98% of an inmate sample was aware of at least one sexual assault occurring in the previous year.

So, is this an argument that most states are likely to buy? Well, Alaska did the following year, but I doubt that most states will follow suit. So, if states aren't willing to buy this rationale, what is the alternative? According to the recent article, Comparing Exceptions to Privilege and Confidentiality Relating to CrimeFraud, and Harm—Can Hard Cases Make Good Law?, 79 UMKC L. Rev. 61 (2010), by Jean Fleming Powers, a professor at the South Texas College of Law, the answer is to create an exception to attorney-client confidentiality when an attorney feels that revealing confidential information is reasonably necessary to prevent a significant loss of liberty.

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

Monday, May 2, 2011

Jumping To Conclusions: Northern District Of Illinois Quickly Deems Plaintiff's Robbery Conviction Inadmissible Under Rule 609(a)(1)

Federal Rule of Evidence 609(a)(1) provides that

evidence that a witness other than an accused 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 evidence that an accused 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 accused.

In turn, Federal Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Sometimes, when a part seeks to admit (or exclude) evidence of a prior conviction for impeachment purposes, you get a great court opinion that really digs into the probative value and unfair prejudice of the subject conviction. Other times, you get an opinion like the recent opinion of the United States DIstrict Court for the Northern District of Illinois in Blackwell v. Kalinowski, 2011 WL 1557542 (N.D.Ill. 2011).

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

Sunday, May 1, 2011

Call Me: Northern District Of California Finds Prison Phone Call Is Nontestimonial

A prisoner makes a phone call to his acquaintance. The acquaintance makes incriminatory statements during the phone call, which is recorded. At the prisoner's trial, the acquaintance does no testify, and the prosecution introduces the phone call into evidence under an exception to the rule against hearsay. Does the admission of the phone call violate the Confrontation Clause? According to the recent opinion of the United States District Court for the Northern District of California in Ibarra v. McDonald, 2011 WL 1585559 (N.D. Cal. 2011), the answer is "no."

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