EvidenceProf Blog

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

Saturday, March 26, 2011

Upon Request: D.C. Court Of Appeals Notes Request Required For Rule 615 Sequestration

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

D.C. does not have codified rules of evidence, but it has adopted Rule 615 in its case law. And, as the language of Rule 615 and the recent opinion of the D.C. Court of Appeals in Marshall v. United States, 2011 WL 1044594 (D.C. 2011) (Download Marshall), make clear Rule 615 is not self-executing but instead requires the request of a party.

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March 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, March 25, 2011

The Truth Of The Matter: Court Of Appeals Of Ohio Precludes Declarant Impeachment Under Rule 806

Like its federal counterpart, Ohio Rule of Evidence 806(A) provides that

When a hearsay statement, or a statement defined in Evid.R. 801(D)(2), (c), (d), or (e), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence that would be admissible for those purposes if declarant had testified as a witness.

As Rule 806 and the recent opinion of the Court of Appeals of Ohio, Tenth District, in Columbus v. Montgomery, 2011 WL 983080 (Ohio App. 10 Dist. 2011), make clear, however, it only allows for the impeachment of a hearsay declarant, meaning that a party cannot impeach the credibility of a declarant whose statement is not being offered at trial to prove the truth of the matter asserted.

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March 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 24, 2011

Article Of Interest: Marc McAllister's The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence

A defendant is on trial. A prospective eyewitness does not want to testify against the defendant for fear of reprisal. But the witness might be willing to testify under one condition: He be allowed to testify while wearing a disguise. Should this witness be able to wear sunglasses, a hat, a wig, and/or some other disguise while on the witness stand, or would such a disguise violate the defendant's rights under the Confrontation Clause? Until 2004, this question was answered pursuant to the Supreme Court's opinion in Maryland v. Craig, 497 U.S. 836 (1990), which set forth a two-part test to govern potential exceptions to the Clause's face-to-face requirement. According to Craig, "a physical, face-to-face confrontation [may be dispensed with] at trial [1] only where denial of such confrontation is necessary to further an important public policy and [2] only where the reliability of the testimony is otherwise assured."

In Crawford v. Washington, 541 U.S. 36 (2004), however, the Supreme Court condemned judicial reliability assessments, concluding that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." So, did Crawford kill Craig? And, if it did, does that mean that courts can no longer allow witnesses to testify in disguise based upon judicial reliability assessments?

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March 24, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 23, 2011

What's The Definition Of Prejudice?: Supreme Court Of Mississippi Upholds Verdict Despite Jurors Consulting Dictionary

A defendant is charged with felony child abuse under Mississippi Code Section 97-5-39(2)(a), which states:

Any person who shall intentionally (I) burn any child, (ii) torture any child or, (iii) except in self-defense or in order to prevent bodily harm to a third party, whip, strike or otherwise abuse or mutilate any child in such a manner as to cause serious bodily harm shall be guilty of felony child abuse of a child and, upon conviction, shall be sentenced to imprisonment in the custody of the Department of Corrections for life or such lesser term of imprisonment as the court may determine, but not less than ten (10) years....

The defendant is not charged with child neglect, and the jury does not receive any instructions on child neglect. During deliberations, the jury sends a note to the trial judge with the following question: "Is negligence the same thing as abuse?" The trial court responds by sending a handwritten note to the jury that it "must rely on the Court's instructions on the law already given to you. Please continue your deliberations." After receiving the trial court's response, the jury continues deliberating for approximately half an hour and then returns a guilty verdict. After the verdict, a juror allegedly approaches the defendant's boyfriend and tells him that he and another juror had been confused about the definition of "neglect," so they had looked up the definition and had determined that "abuse" and "neglect" meant the same thing.  Based upon this determination, they allegedly determined that the defendant was guilty of child abuse. Is the defendant entitled to a new trial? According to the recent opinion of the Supreme Court of Mississippi in Rutland v. State, 2011 WL 907116 (Miss. 2011), the answer is "no." I disagree.

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March 23, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 22, 2011

Avoiding A Confrontation, Take 4: EDVA Opinion Makes Clear That Redacted Co-Participant Confessions Are Inadmissible At Solo Trials

Last week, I posted my new article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine. The article argues that courts have erred in finding that nontestimonial hearsay is beyond the scope of the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004), because Crawford is a test of Constitutional reliability while the Bruton doctrine is a test of Constitutional harmfulness. The converse of this is that even testimonial hearsay is admissible under the Bruton doctrine as long as it is not sufficiently harmful. Crawford held that "[w]here testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Meanwhile, under the Bruton doctrine, 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.

Pursuant to Richardson v. Marsh, 481 U.S. 200 (1987), however, co-defendant confessions that are redacted to remove any reference to other defendants are admissible despite the Bruton doctrine because they are not sufficiently harmful. And, as I note in my article, the Richardson rule applies even to testimonial co-defendant confessions. So, if Co-Defendant confesses to Police Officer, "Defendant and I robbed the bank," and Co-Defendant does not testify at his joint jury trial with Defendant, Police Officer could testify that Co-Defendant confessed, "I robbed the bank." Obviously, Co-Defendant's confession is testimonial, and ordinarily we would require confrontation as "the only indicium of reliability sufficient to satisfy constitutional demands...." The Bruton doctrine, however, does not care about reliability, which is why Co-Defendant's redacted confession would be admissible. 

But what if Co-Defendant and Defendant are tried separately? Or what if Co-Defendant dies before the joint trial, meaning that Defendant is tried by himself? Would the admission of Co-Defendant's redacted confession violate Crawford and the Confrontation Clause?  I didn't address such a case in my article, but as the opinion of the United States District Court for the Eastern District of Virginia in United States v. Jordan, 357 F.Supp.2d 889 (E.D.Va. 2005), makes clear, the answer is "yes." Why? Crawford is a test of Constitutional reliability, not a test of Constitutional harmfulness.

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March 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, March 21, 2011

Not My Recollection: Court Of Appeals Of Ohio Finds Writing Cannot Be Read Out Loud Under Rule 612

Like its federal counterpartOhio 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 by the testimony of the witness to have been made or adopted 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, like its federal counterpart, Ohio Rule of Evidence 612 allows an attorney to refresh the recollection of a forgetful witness with a writing. So, let's say that a witness made a statement to the police but then refuses to attest to its accuracy while testifying at trial. Can the prosecution read portions of the statement out loud and ask the witness whether she made the statements recorded in the statement consistent with either Rule 612 or Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Ninth District, in State v. Martin, 2011 WL 899553 (Ohio App. 9 Dist. 2011), such a procedure is improper under Rule 612 and possibly improper (and I would argue definitely improper) under Rule 803(5).

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March 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, March 20, 2011

Talk About The Life In Massachusetts: Court Precludes Jury Impeachment On Jury Violence, Failure To Report Deadlock

On June 9, 2005, six days after the verdict, a juror sent a letter to the judge suggesting that she and possibly two other jurors had been pressured into convicting the defendant despite having a reasonable doubt concerning the defendant's guilt. According to the juror, other jurors “lean[ed] across the table into our faces and insist[ed] on yelling at us, screaming, swearing, and throwing books and pens just because we [saw] some things differently.” After the other two holdouts changed their minds, the juror claimed that she was subjected to “8 hours of constant interrogation,” with jurors “constantly yelling at me and swearing and pointing finger[s] in my face across the table and telling me that I am crazy.” The letter further alleged that some jurors had made up their minds “from day 1 without listening to anything that was presented,” that some jurors convinced or intimidated others to change their votes outside the jury room, and that the foreperson at one point refused to send the judge a note saying that the jury were deadlocked and instead insisted that they continue deliberating.

Is this grounds for jury impeachment? According to the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Pytou Heang, 2011 WL 489926 (Mass. 2011), the answer is "no." Instead, "'[t]ension between jurors favoring guilt and those favoring acquittal is part and parcel of the internal decision-making process of jury deliberations." I disagree.

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March 20, 2011 | Permalink | Comments (2) | TrackBack (0)