Sunday, June 5, 2011
Last week, I posted an entry about Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011). In the article, Professor Stonefield contends that the Federal Rules of Evidence wrongfully classify statements such as admissions as "not hearsay" under Federal Rule of Evidence 801(d). And, while he acknowledges that this imprecision has not led to any real substantive errors in cases across the country, he puts forth a few compelling proposals for amending Rule 801(d).
As I have noted, the Federal Rules of Evidence are currently being restyled, and Professor Stonefield sent his article to the Advisory Committee on Evidence Rules as a formal proposal to amend the Federal Rules of Evidence. As I noted in my previous post, Professor Stonefield told me that
The article was presented to and discussed by the Advisory Committee on Evidence Rules at their October, 2010 meeting. The Committee subsequently wrote that, while "agree[ing] in principle with [my] proposal" that Rule 801(d) should be amended and admissions and prior statements treated as separate hearsay exceptions, the members felt that the rule “was not a source of ambiguity or confusion and was being applied properly in the courts. Moreover, the members felt that the time and expense of making and incorporating a rule amendment outweighed the need for changing the rule at this time.”
Daniel Capra, the Reporter for the Advisory Committee on Evidence Rules, has now sent me a copy of the memorandum that he sent to the Committee in response to Professor Stonefield's work, and from it, you can see the excellent work done by the Committee, which I have previously highlighted.
Saturday, June 4, 2011
Read My Lips, No Lip Reading Testimony?: Court Of Appeals Of Indiana Opinion Poses Question About Lip Read Statements
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."
Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
In every post-Davis/Hammon ongoing emergency case that I've seen, the statement at issue has been a classic verbal statement by the declarant. In Sandefur v. State, 945 N.E.2d 785 (Ind.App. 2011), however, the Court of Appeals of Indiana applied the Davis/Hammon to nonverbal conduct: mouthed bu unspoken words by a declarant. And that raises an interesting question.
Friday, June 3, 2011
Back in 2004,
North Carolina Governor Mike Easley signed a bill into law that require[d] prosecutors to share their files in all felony cases. The bill was approved in the wake of allegations that prosecutors withheld evidence in the capital murder trial of Alan Gell, who was later exonerated and freed from death row. The new open discovery statute require[d] district attorneys to open their investigative files in felony cases to defense lawyers who request[ed] such access prior to trial. The law require[d] DAs to provide such things as police investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial. In return, defense attorneys will have to provide the state with witness lists and details about the grounds on which they plan to defend their client.
That bill created G.S. § 15A-903, and you can read its text by clicking here. So, what besides the Gell case led to the passage of G.S. § 15A-903, what problems has the law encountered, and what did North Carolina recently do in connection with the bill? These are the subjects of this post.
Thursday, June 2, 2011
Willful blindness is one of my favorite topics to teach. My current go to case on the doctrine is Nunley v. United States, 2009 WL 2386674 (9th Cir. 2009), in which (1) a man asked Larry Nunley to haul a large quantity of marijuana in his truck; (2) Nunley refused but left the keys to his truck with the man while he watched the Super Bowl for 3 hours; and (3) Nunley returned to his truck, saw a new container in it, and drove off without opening the container. The opinion is 2 pages on Westlaw and a nice and quick way to teach students the basics of willful blindness.
Now, however, via our sister blog, White Collar Crime Prof Blog, by Professor Ellen Podgor, comes word of the Supreme Court's important opinion in Global-Tech Appliances, Inc. v. SEB S.A., 2011 WL 2119109 (U.S. 2011), and a new tool to teach the topic as the Court attempts to clarify the specifics of the doctrine.
Wednesday, June 1, 2011
That's A Legal Problem: Higgs v. State And The Nevada Test For The Admissibility Of Expert Testimony
Last month, I posted an entry about Wisconsin becoming the 31st state to adopt or apply the Daubert standard to determine whether to admit a witness to testify as an expert in a given field. At the time, I promised to do a 19 state tour of the remaining states to shine a light on the varying tests that these states use. Today, I will start our tour in the Battle Born State of Nevada.