EvidenceProf Blog

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

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)