Saturday, April 23, 2011
Knockin' On Heaven's Door?: Superior Court Of Pennsylvania Questionably Finds Statements Qualify As Dying Declarations
A statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.
As the recent opinion of the Superior Court of Pennsylvania in Commonwealth v. Priest, 2011 WL 1499828 (Pa.Super. 2011), makes clear, even statements made six hours (or three days) before the declarant's death can qualify as dying declarations. But did the court correctly conclude that the declarant's statements in Priest qualified as dying declarations? I don't know.
Friday, April 22, 2011
Georgia On My Mind: Georgia Senate Overwhelming Votes To Approve Evidence Code Based On Federal Rules Of Evidence
As of 2010, forty-two states had passed state rules of evidence similar to the Federal Rules of Evidence. On January 1, 2011, that number became 42 as the Illinois Rules of Evidence went into effect. Earlier this week, on the last day of the 2011 legislative session, the Georgia Senate voted 50-3 to pass a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence that would make Georgia state #43. Governor Nathan Deal is now expected to sign the bill into law, which would take effect on January 1, 2013. So, what led to the creation of this new Evidence Code, what will it replace, and what are the remaining states?
Thursday, April 21, 2011
A popular game among lawyers (and law professors) while watching legal TV shows is "spot the legal error." And as readers of this blog with their law degrees know, such shows are replete with inaccuracies. Some of these errors are innocuous. As an Evidence professor, I often see evidence wrongfully admitted or excluded, but I don't worry that such errors give laypersons a dangerous misimpression of how trials are conducted. Of course, one of the more obvious errors in legal TV shows is the rapidity with which disputes are resolved. In the classic "client of the week" format, we often see a client in complex litigation retain a firm, complete discovery, and achieve a settlement or verdict in a matter of days when in reality the entire process would likely drag on for years.
But I still don't know that this "fast forward justice" misleads the public in a way that is all that troubling. But what about when the lawyer at one of these fictional firms is given the pro bono project of the wrongfully incarcerated inmate? If you've watched one of these episodes, you know the score. The firm gets the case, and it throws its full resources into finding the flaws in the prosecution's case. Often, the inmate is on death row, and the firm has only a few days or hours to stop the execution. The firm gets a lab to expedite testing of forensic evidence. It gets a judge to hear an emergency motion. The inmate's innocence is proven. The episode ends with the prison gates opening and the inmate being reunited with his family. Tears are shed. Justice has been served.
In reality, though, these types of wrongful conviction cases are much more often of the "justice delayed is justice denied" variety than the "fast forward justice" we see on TV. And I think that the real value of the recent article, View From the Trenches: The Struggle to Free William Richards, 73 Albany L. Rev. 1357 (2010), by Jan Stiglitz, a professor and the director of the California Innocence Project at the California Western School of Law, is that it exposes the realities of the situation.
Wednesday, April 20, 2011
Be Kind, Rewind: Southern District Of Ohio Uses Best Evidence Rule To Preclude Admission Of Private Eye's Affidavit
Federal Rule of Evidence 1002, the Best Evidence Rule, provides that
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
I always tell my Evidence students that the Best Evidence Rule rarely prevents proponents from proving the contents of writings, recordings, and photographs. Instead, the provisions of Article X of the Federal Rules of Evidence merely point to how those contents will be proven. If the proponent has the original, it can introduce the original. If the proponent has a "duplicate," it can introduce the duplicate. And, if the proponent has neither, it can still prove the contents of the writing, recording, or photograph unless it lost or destroyed the original in bad faith or provides no reason for failing to produce it. The recent opinion of the United States District Court for the Southern District of Ohio in Crace v. Efaw, 2011 WL 1459357 (S.D. Ohio 2011), is thus the exception to the general rule.
Tuesday, April 19, 2011
Article Of Interest: Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, By David A. Sonenshein and Robin Nilson
Readers of this blog know of my interest in the inaccuracy of eyewitness identifications (see, e.g., here, here, here, here, and here) and efforts to increase their reliability (see, e.g. here). This interest came from the confluence of two events: First, I read about the results of The Illinois Pilot Program on Sequential Double-Blind Identification Procedures, which seemed to suggest that traditional lineup methods are uncannily accurate and that more modern safeguards actually lead to less reliable identifications. Thereafter, I saw a 60 Minutes piece about Jennifer Thompson's (mis)identification of Ronald Cotton as her rapist and about the problems inherent in traditional lineup methods. This piece changed the way that I thought about eyewitness identifications, and I now play the piece in all of my Evidence and Criminal Procedure classes. The Cotton-Thompson case also provides the launching point for an excellent recent article about eyewitness (mis)identifications, Eyewitness Errors and Wrongful Convictions: Let's Give Science a Chance, 89 Or. L. Rev. 263 (2010), by David A. Sonenshein and Robin Nilson, professors at the Temple University Beasley School of Law.
Monday, April 18, 2011
It's So Juvenile: Ohio Child Custody Case Reveals Differences Between Federal And Ohio Rules On Juvenile Adjudication Impeachment
Federal Rule of Evidence 609(d) provides that
Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence.
As the recent opinion of the Court of Appeals Of Ohio, Twelfth District, in In re L.E.N., 2011 WL 1346825 (Ohio App. 12 Dist. 2011), makes clear, Ohio Rule of Evidence 609(d) is actually more restrictive than its federal counterpart although this distinction was ultimately irrelevant to the court's opinion.
Sunday, April 17, 2011
Federal Rule of Evidence 801(d)(1)(C) provides that
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person....
As the recent opinion of the United States District Court for the Eastern District of New York in Linton v. Bradt, 2011 WL 1252752 (E.D.N.Y. 2011), reveals, New York also allows for