Saturday, April 2, 2011
Is This Being Recorded?: Considering the Differences Between Federal & New Jersey Recorded Recollections Rules
Federal 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 the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' 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.
Meanwhile, New Jersey Rule of Evidence 803(c)(5) provides a similar exception to the rule against hearsay for
A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness himself or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.
So, what is the difference between these two rules?
Friday, April 1, 2011
Q & A: Court Of Appeals Of Mississippi Finds That Present Sense Impressions & Excited Utterances Can Come In Response To Questions
Like its federal counterpart, Mississippi Rule of Evidence 803(1) provides an exception to the rule against hearsay for "[a] statement describing or explaining an event or condition made while the declarant was perceiving the event or condition or immediately thereafter." And, like its federal counterpart, Mississippi Rule of Evidence 803(2) provides an exception to the rule against hearsay for "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." And, as the recent opinion of the Court of Appeals of Mississippi in Sanders v. State, 2011 WL 813454 (Miss.App. 2011), makes clear, a statement can qualify as a present sense impression or an excited utterance even if it comes in response to interrogation.
Thursday, March 31, 2011
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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether any outside influence was improperly brought to bear upon any juror, and, in criminal cases only, whether extraneous prejudicial information was improperly brought to the jury's attention. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.
Usually, a non-juror is the source of extraneous prejudicial information. As the recent opinion of the Supreme Court of Louisiana in State v. Ingram, 2011 WL 10885566 (La. 2011), makes clear, however, in exceptional circumstances, jurors themselves may be the source of extraneous prejudicial outside information.
On Tuesday, I posted an entry about the interesting new article, High-Tech View: The Use of Immersive Virtual Environments in Jury Trials, 93 Marq. L. Rev. 1073 (2010), by Carrie Leonetti, an Assistant Professor at the University of Oregon School of Law, and Jeremy Bailenson, an Associate Professor of Communication at Stanford University. Professor Bailenson has now sent me this useful link to a news story showing some footage from the use of VR simulation evidence at the annual "tech trial" put on by Professor Fred Lederer at the William and Mary Law School. If memory serves me, this was from the 2002 tech trial put on by Courtroom 21, and I drafted the motion in limine regarding the admissibility of the VR evidence as I was then a student of Professor Lederer in his Legal Technology class. You can access the footage by clicking on this link.
Wednesday, March 30, 2011
18 And Life: 9th Circuit Finds No Problem In Precluding Impeachment Via 18 Year-Old False Statement Conviction
Federal Rule of Evidence 609(b) provides that
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.
From my research in the area, it seems that courts tend to admit convictions under Rule 609(b) only if (1) they are for crimes of dishonesty or false statement, and (2) they occurred not that much more than ten years before the present trial. In United States v. Swift, 2011 WL 1097756 (9th Cir. 2011), the appellant satisfied the first of these requirements, but not the second.
Tuesday, March 29, 2011
Article Of Interest: Carrie Leonetti & Jeremy Bailenson's High-Tech View: The Use of Immersive Virtual Environments in Jury Trials
Last year, I posted an entry about Andrew M. Perlman's The Legal Ethics of Metadata Mining, in which Professor Perlman concluded that "[t]he best approach to metadata mining is to analogize it to the review of inadvertently disclosed documents more generally [because] [t]he two issues are conceptually indistinguishable." I agreed with Professor Perlman's analysis of the issue and found that courts should should similarly analogize compelled forensic imaging to the compelled disclosure of documents covered by attorney-client privilege when the adverse party claims that they are subject to the crime-fraud exception.
In their recent article, High-Tech View: The Use of Immersive Virtual Environments in Jury Trials, 93 Marq. L. Rev. 1073 (2010), Carrie Leonetti, an Assistant Professor at the University of Oregon School of Law, and Jeremy Bailenson, an Associate Professor of Communication at Stanford University, make a similar argument with regard to immersive-virtual environment (IVE) evidence. Specifically, they claim that IVE evidence is analogous to other representative media and should be treated the same as its predecessors. As the authors note:
The portrayal of scene evidence has followed a somewhat linear progression: live viewing, drawings, black-and-white photographs, color photographs, video recording, and, now, VR simulation. There is no reason why IVE technology should be subjected to any different or more strenuous threshold for admissibility than any other representational medium representational medium.
Here's how they get there:
Monday, March 28, 2011
Crime Scene Investigation: PA Court Affirms Robbery Convictions Despite Unauthorized Juror Crime Scene Visit
Upon an inquiry into the validity of a verdict, including a sentencing verdict pursuant to 42 Pa.C.S.A. § 9711 (relating to capital sentencing proceedings), 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 in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
Under Rule 606(b), it is clear that a juror's unauthorized visit to the crime scene uncovers prejudicial facts not of the record (or extraneous prejudicial information. But should such a visit lead to a new trial? According to the recent opinion of the Superior Court of Pennsylvania in Commonwealth v. Pope, 2011 WL 480533 (Pa.Super. 2011), the answer is "no," at least if the layout of the crime scene was not a central issue at trial.
Sunday, March 27, 2011
Sign Here: 5th Circuit Finds District Court Improperly Excluded Signed Prior Inconsistent Statements
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
So, let's say that a party wants to impeach a witness through an alleged prior inconsistent which was signed by the witness but which the witness claims is inaccurate. Has the prior statement been properly authenticated? According to the recent opinion of the Fifth Circuit in United States v. Isiwele, 2011 WL 768883 (5th Cir. 2011), the answer is "yes."