Saturday, April 16, 2011
Limited Too: Court Of Appeals Of Indiana Notes That Its Rule 105 Is Different From Every Other Rule 105
Federal Rule of Evidence 105 provides that
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Meanwhile, Indiana Rule of Evidence 105 provides that
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.
So, is there a difference between the word "instruct" in Federal Rule of Evidence 105 and the word "admonish" in Indiana Rule of Evidence 105? According to the recent opinion of the Court of Appeals of Indiana in Webb v. State, 2011 WL 1379830 (Ind.App. 2011), the answer is "yes."
Friday, April 15, 2011
The Conspirator: Western District Of Louisiana Notes 4 Requirements To Admit Co-Conspirator Admissions
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
And, as the recent opinion of the United States District Court for the Western District of Louisiana in United States v. Jackson, 2011 WL 1376276 (W.D.La. 2011), makes clear, to admit a statement as a co-conspirator admission under Rule 801(d)(2)(E), the prosecution must prove 4 elements by a preponderance of the evidence.
Thursday, April 14, 2011
Readers of this blog know my great interest in stories regarding jury misconduct (see, e.g., here, here, here, here, and here) and whether the very idea of trial by jury can survive the new technological era (see, e.g., here, here, and here). What I haven't addressed nearly as much is what courts can and should do to address the jury impeachment in the internet era (I think that my only posts on the subject are here and here). This latter topic is the subject of Jury 2.0, a thought-provoking article forthcoming in the Hastings Law Journal by Caren Myers Morrison, a professor at the Georgia State University College of Law.
Morrison's basic argument is this: The American jury is like a smart kid. He showed some early promise, but now he's not being challenged. And because he's not being challenged, his mind wanders, and he starts to misbehave. So, we need to challenge him. We need to force him to re-engage with the material. And by doing so, his long latent promise can start to shine through again.
Wednesday, April 13, 2011
New Rules: Court Of Appeals Of Georgia Applies New Framework To Find Statement Nontestimonial, Cites EvidenceProf
As I have previously noted,
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that
Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
In Michigan v. Bryant, the United States Supreme Court had to decide whether [a crime victim]'s statements were testimonial or nontestimonial under this "primary" purpose test.
After creating a new Confrontation Clause framework, the Court in Bryant found that the victim's statements were nontestimonial. In its recent opinion in Philpot v. State, 2011 WL 982978 (Ga.App. 2011), the Court of Appeals of Georgia became one of the first courts to apply this new framework, and it reached the same conclusion based upon somewhat similar facts. And, it cited to this blog. So I got that goin' for me.
Tuesday, April 12, 2011
Article Of Interest: Brian Gallini's To Serve and Protect? Officers as Expert Witnesses in Federal Drug Prosecutions
As readers of this blog know, I am frequently disturbed by courts continually finding that law enforcement officers can testify that the amount of drugs recovered from a suspect or his car is consistent with intent to distribute (see, e.g., here, here, here, here, and here). My posts mainly have focused upon why such testimony violates Federal Rule of Evidence 704(b). But in his terrific article, To Serve and Protect? Officers as Expert Witnesses in Federal Drug Prosecutions (forthcoming, George Mason Law Review), Brian R. Gallini, a professor at the University of Arkansas-Fayetteville School of Law, comprehensively argues that courts often err in admitting this testimony not only under Rule 704(b), but also under Rule 702 and the Due Process Clause.
Monday, April 11, 2011
As of 2010, 30 states had "adopted or applied the Daubert standard to determine whether to admit a witness to testify as an expert in a given field." Mark R. Nash, Are We There Yet?: Gatekeepers, Daubert, and an Analysis of State v. White, 61 S.C. L. Rev. 897, 897 n.6 (2010). These states were:
(1) Alaska, (2) Arkansas, (3) Colorado, (4) Connecticut, (5) Delaware, (6) Georgia, (7) Hawai'i, (8) Idaho, (9) Indiana, (10) Iowa, (11) Kentucky, (12), Louisiana, (13) Maine, (14) Massachusetts, (15) Michigan, (16) Mississippi, (17) Montana, (18) Nebraska, (19) New Hampshire, (20) New Mexico, (21) Ohio, (22) Oklahoma, (23) Oregon, (24) Rhode Island, (25) South Dakota, (26) Tennessee, (27) Texas, (28) Vermont, (29) West Virginia, and (30) Wyoming.
As of February 1st, that number now stands at a Baskin-Robbins-esque 31.
Sunday, April 10, 2011
A shield law or reporters' privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. After reading some recent articles on the subject, I thought that I would do a post about the status of shield laws in the states.