EvidenceProf Blog

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

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Saturday, March 12, 2011

Avoiding A Confrontation, Take 2: The Result Of The Trial In Which Nontestimonial Hearsay Was Excluded Under Bruton

Last October, I posted an entry about the opinion of the opinion of the United States District Court for the Eastern District of Virginia in United States v. Williams, 2010 WL 3909480 (E.D.Va. 2010). In Williams, Marvin Wayne Williams, Jr., Freddie Wigenton, and Deshawn Anderson were charged with conspiracy to distribute crack cocaine, intentional killing while engaged in drug trafficking, and use of a firearm during a drug offense relating in death. And, as I noted, the Eastern District of Virginia became one of the few courts to hold that the Bruton doctrine covers nontestimonial hearsay after Crawford. (Early next week, I should be posting my article on this topic). So, what became of the defendants in Williams? Well as the recent opinion of the Eastern District of Virginia in United States v. Williams, 2011 WL 830289 (E.D. Va. 2011), reveals, they were convicted of conspiracy to distribute more than 500 grams of cocaine and use of a firearm during a drug trafficking offense resulting in the death of Kyle Turner, but they were acquitted on the charge of intentional killing while engaged in drug trafficking. And there was at least on interesting evidentiary issue on appeal.

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

Friday, March 11, 2011

Lacking Conviction: Supreme Court Of Florida Notes Lack Of State Counterpart To FRE 608(b)

Federal Rule of Evidence 608(b) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

As the recent opinion of the Supreme Court of Florida in Pantoja v. State, 2011 WL 722374 (Fla. 2011), makes clear, however, Florida does not have a counterpart to Federal Rule of Evidence 608(b) and only specific instances of (mis)conduct leading to convictions can be used to impeach witnesses.

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

Thursday, March 10, 2011

The Ecstacy And The Agony: Court Of Appeals Of Minnesota Finds Ecstacy Testimony Violated Rule 704 But Was Harmless Error

Federal Rule of Evidence 704 indicates that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Meanwhile, Minnesota Rule of Evidence 704 merely provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

As the recent opinion of the Court of Appeals of Minnesota in Haaland v. State, 2011 WL 781229 (Minn.App. 2011), makes clear, however, Minnesota court apply the logic of Rule 704(b).

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

Wednesday, March 9, 2011

Excused Absence: First Circuit Finds Lack Of Notes About Calls Inadmissible Under Rule 803(7)

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.

As the text of this Rule and the recent opinion of the First Circuit in McInnis v. Maine, 2011 WL 769075 (1st Cir. 2011), make clear, a party cannot merely point to the absence of an entry about some matter to establish admissibility under Rule 803(7). Instead, the party must point to the absence of an entry about a matter which was of a kind of which a record was regularly made and preserved.

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

Tuesday, March 8, 2011

Double Down: Court Of Appeals Of Arkansas Finds Police Interrogation Improperly Admitted As Recorded Recollection

Like its federal counterpart, Arkansas Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. 

And, as the recent opinion of the Court of Appeals of Arkansas in Hancock v. State, 2011 WL 714674 (Ark.App. 2011), makes clear, when someone else records the alleged recorded recollection of a declarant, both participants must ordinarily testify, the reporter vouching for the accuracy of the oral report and the recorder for the accuracy of the transcription.

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

Monday, March 7, 2011

Loyola L.A.'s "11" On "11" Series & Victor's Gold's You've Got Mail--But No Privilege

One of the best law faculty blogs out there is the relatively new blog, Summary Judgments, which contains posts by the faculty of the Loyola Law School Los Angeles. Recently, the blog hosted an "11" on 11" series, in which Loyola Law School professors weighed in on what they expect to be the biggest legal issues in their fields in 2011. Today, Dean Victor J. Gold posted the last entry in the series: You've got mail--but no privilege. The post concerns a recent opinion of the California Court of Appeals, Holmes v. Petrovich Development Company,---Cal.Rptr.3d---, 2011 WL 117230 (Cal.App.3d, 2011), which dealt with one of the hottest issues out there now: the privacy of e-mails sent by an employee from a work computer or a smartphone supplied by his employer. Specifically, it addressed the question of whether attorney-client privilege applies to such e-mails.

I would highly recommend the post to readers of this blog and would recommend the "11" on 11" series in general to all those interested in some of the best short form legal scholarship out there.

-CM

March 7, 2011 | Permalink | Comments (0) | TrackBack (0)

The Informant(s)!: Court Of Appeals Of Texas Finds No Exception To Confidential Informant Privilege In Drug Appeal

Texas Rule of Evidence 508(a) provides that

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

Texas Rule of Evidence 508(c)(2), however, provides an exception to this confidential informant privilege

If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.

As the text of this rule implies, and as the recent opinion of the Court of Appeals of Texas, Waco, in Griffin v. State, 2011 WL 754349 (Tex.App.-Waco 2011), makes clear, to be entitled to an informant's identity under this exception, the defendant bears the threshold burden of making a plausible showing, based on more than mere conjecture and speculation, that the informant could give testimony necessary to a fair determination of guilt.

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March 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 6, 2011

I Want The Truth: 8th Circuit Opinion Notes That Rule 608(b) Only Covers Instances Of (Un)Trustworthiness

Federal Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

As the text of this Rule and the recent opinion of the Eighth Circuit in United States v. Tate, 2011 WL 692013 (8th Cir. 2011), make clear, Rule 608(b)(1) only covers specific instances of (un)truthfulness, and (2) does not allow for the admission of extrinsic evidence.

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