EvidenceProf Blog

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

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Saturday, March 19, 2011

What's That Mean? 11th Circuit Finds Evidence Offered To Prove Meaning Of Settlement Agreement's Terms Admissible Despite Rule 408

Federal Rule of Evidence 408 provides that

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

And, as the recent opinion of the Eleventh Circuit in Fisk Elec. Co. v. Solo Const. Corp., 2011 WL 891797 (11th Cir. 2011), makes clear, settlement agreements and related communications also may be admitted for the purpose of resolving a factual dispute about the meaning of the settlement agreements' terms.

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March 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, March 18, 2011

No One But The Bailiff: Supreme Court Of Nevada Finds Bailiff's Improper Behavior Insufficient To Award New Trial

Similar to Federal Rule of Evidence 606(b), N.R.S. 50.065(2) provides that

Upon an inquiry into the validity of a verdict or indictment:

(a) A juror shall not testify concerning the effect of anything upon the juror’s or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith.(b) The affidavit or evidence of any statement by a juror indicating an effect of this kind is inadmissible for any purpose. 

While both of these rules preclude certain types of jury impeachment, neither rule would preclude a bailiff from testifying that he engaged in misconduct that might have prejudiced the jury. But whether that misconduct necessitates a new trial is a separate issue and one with which the Supreme Court of Nevada grappled in its recent opinion in Lamb v. State, 2011 WL 743193 (Nev. 2011).

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March 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 17, 2011

Article Of Interest: Katharine Traylor Schaffzin's Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence

In Dickerson v. United States, 530 U.S. 428 (2000), the Supreme Court decided not to overrule Miranda v. Arizona, 384 U.S. 436 (1966), concluding that "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture." After the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States Courts "restyled" the Federal Rules of Appellate Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Civil Procedure, it tackled its latest project:  the Federal Rules of Evidence. The goal in all of these projects has been to makes the Rules more user friendly rather than to enact substantive changes.  But have certain phrases in the Federal Rules of Evidence become part of our courtroom culture such that they are off limits? According to the Advisory Committee on the Rules of Evidence, the answer is "yes." According to the recent article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000), by Katharine Traylor Schaffzin of the University of Memphis Cecil C. Humphreys School of Law, the answer is also "yes," but to a lesser extent than posited by the Advisory Committee.

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March 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 16, 2011

The Mystery Of The Quotient: Court Of Appeals Of Tennessee Reverses Jury's Quotient Verdict

Federal Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Moreover, the Advisory Committee's Note to Rule 606(b) indicates that it is derived from federal opinions in which "testimony or affidavits of jurors ha[d] been held incompetent to show a compromise verdict [or] a quotient verdict." Meanwhile, Tennessee Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon any juror's mind or emotions as influencing that juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes, except that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention, whether any outside influence was improperly brought to bear upon any juror, or whether the jurors agreed in advance to be bound by a quotient or gambling verdict without further discussion; nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. (emphasis added)

So, what is a quotient or gambling verdict? Well, let's take a look at the recent opinion of the Court of Appeals of Tennessee in Cullum v. Baptist Hospital Systems, Inc., 2011 WL 553768 (Tenn.Ct.App. 2011).

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March 16, 2011 | Permalink | Comments (1) | TrackBack (0)

Tuesday, March 15, 2011

My New Article: Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine

My new article addresses an issue I first raised on this blog last October: Is "nontestimonial" hearsay beyond the scope of the  Bruton doctrine in the wake of the Supreme Court's opinion in Crawford v. Washington? Here is the abstract of the article, which you can download from SSRN (Download Article):

The Bruton doctrine holds that the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant’s confession that facially incriminates other defendants but is inadmissible against them under the rules of evidence. Under this doctrine, Co-Defendant’s confession to Police Officer that “Defendant and I killed Victim” could not be admitted unless Co-Defendant testified at trial. But what if Co-Defendant made his confession to his mother, his brother, his lover, or his friend? While the vast majority of courts before 2004 would have held that such “noncustodial” confessions violated the Bruton doctrine, the tables have turned in the wake of Crawford v. Washington, with most courts finding such “nontestimonial” confessions beyond the scope of the Bruton doctrine.

This article argues that courts have erred in reaching this conclusion because the Bruton doctrine is a test of Constitutional harmfulness while Crawford, like its predecessor, Ohio v. Roberts, is a test of Constitutional (un)reliability. Moreover, even if Crawford deconstitutionalized the Bruton doctrine with regard to nontestimonial hearsay, courts should still find that the admission of nontestimonial co-defendant confessions violates the rules of evidence.

-CM

March 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, March 14, 2011

Avoiding a Confrontation Take 3: Central District Of California Finds Nontestimonial Hearsay Beyond Scope of Bruton

A defendant and his brother are charged with first degree murder and jointly tried before a jury. The same day as the murder, the defendant and his brother both allegedly made statements to a friend at a baby shower implicating themselves in the murder, and the brother's statement identified the defendant as the shooter. At their joint trial, the brother does not testify. Is the brother's statement admissible at trial? That was the question addressed by the United States District Court for the Central District of California in its recent opinion in De Niz v. Clark, 2011 WL 836448 (C.D. Cal. 2011), and it is also the question addressed in an article I should have completed tomorrow.

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March 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 13, 2011

Adoption Agency: Supreme Court Of Texas FInds Appraisal Constitutes Adoptive Admission

Texas Rule of Evidence 801(e)(2)(B) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth;

So, let's say that a district seeks to acquire a waterline easement across land owned by a company and initiates condemnation proceedings against the company when negotiations fail. And let's say that at a hearing, the district presents an appraisal by a state certified appraiser of the damages that the company would suffer from the easement. Finally, let's say that the company later brings a civil action against the district. Will the district be able to claim that the appraisal is inadmissible hearsay because the appraiser was not its agent? According to the recent opinion of the Supreme Court of Texas in Reid Road Mun. Utility Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 2011 WL 836869 (Tex. 2011), the answer is "no" because the appraisal constitutes an "adoptive admission" under Texas Rule of Evidence 801(e)(2)(B).

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March 13, 2011 | Permalink | Comments (0) | TrackBack (0)