EvidenceProf Blog

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

Saturday, May 7, 2011

Word Perfect?: 11th Circuit Finds Prosecution Properly Authenticated IMs Cut-And-Pasted Into Word Document

On Wednesday, I posted an entry about the Court of Appeals of Maryland finding that the prosecution failed to properly authenticate a MySpace page containing a threat to prospective witness as one belonging to the defendant's girlfriend. Today's post deals with the recent opinion of the Eleventh Circuit in United States v. Lanzon, 2011 WL 1662901 (11th Cir. 2011), which dealt, inter alia, with the issue of whether he prosecution properly authenticated instant messages cut-and-pasted into a Microsoft Word document.

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May 7, 2011 | Permalink | Comments (1) | TrackBack (0)

Friday, May 6, 2011

Article Of Interest: Cynthia Jones' A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. I have been interested in the question of when evidence is "material" for quite some time. Indeed, the first evidence article that I ever wrote addressed the circuit split over whether and when inadmissible evidence is "material" and can form the basis for a Brady violation (see here). And, I've taken up the issue a few times on this blog, writing about cases in which courts decided whether the following evidence was "material": (1) evidence of a jailhouse snitch's prior convictions (No) (here); (2) evidence that an eyewitness was legally blind (No, but then Yes) (here and here); (3) evidence that a confidential informant had been giving false reports (Yes) (here); and (4) inadmissible evidence (as noted, courts are split (here).

In her terrific recent article, A Reason to Doubt: The Suppression of Evidence and the Inference of Innocence, 100 J. Crim. L. & Criminology 415 (2010), Cynthia Jones, a professor at the American University Washington College of Law, took up a Brady issue I hadn't previously considered: What should be the remedy/penalty for a Brady violation? And, I think that the solution(s) she poses are fascinating and could be a real game changer in terms of how we think about Brady.

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May 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 5, 2011

Avoiding A Confrontation, Take 5: My Take On The Supreme Court's Impending Opinion In Bullcoming v. New Mexico

I haven't posted on it yet, so today I thought that I would post an entry about the Supreme Court's impending opinion in Bullcoming v. New Mexico and my take on the case. The issue presented to the Supreme Court is 

Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

As readers of this blog know, this is an issue of some interest to me (see, e.g., my posts herehere, and here). So, what did the Supreme Court of Nevada hold in Bullcoming v. New Mexico, 226 P.3d 1 (N.M. 2010), and what is the United States Supreme Court likely to hold?

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May 5, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 4, 2011

It's My Space, That's Why They Call It MySpace, Take 6: Court Of Appeals Of Maryland Reverses MySpace Authentication Ruling

Last June, I posted an entry about the opinion of the Court of Special Appeals of Maryland in Griffin v. State, 2010 WL 2105801 (Md.App. 2010). The facts in that case were as follows:

A defendant is charged with second degree murder, first degree assault, and use of a handgun in the commission of a felony or crime of violence. At the defendant's first trial, a witness testifies that he did not see the defendant pursue the victim into the bathroom (where he died) with a gun. The first trial ends in a mistrial, and, at a second trial, the witness changes his testimony and testifies that the defendant was the only person in the bathroom, other than the victim, when the fatal shots were fired. The witness claims that he fabricated his testimony at the first trial because the defendant's girlfriend threatened him. To corroborate this claim, the prosecution introduces into evidence a redacted printout obtained from a MySpace profile page allegedly belonging to the defendant's girlfriend, which said, in part: "JUST REMEMBER, SNITCHES GET STITCHES!! U KNOW WHO YOU ARE!!" The defendant is thereafter convicted. Was that page properly admitted, and how can parties generally authenticate MySpace pages and comments as belonging to a particular person

(Side Note: The "snitches get stitches" threat seems pretty popular, appearing in 20 cases in the Westlaw ALLSTATES database and 13 cases in the ALLFEDS database, with most of its appearances being in the last few years. I wonder whether the threat would be enough, in and of itself, to support a claim of forfeiture by wrongdoing?)

According to the Court of Special Appeals of Maryland, the answer could be found in Maryland Rule of Evidence 5-901(b)(4), which provides that evidence can be authenticated by

Circumstantial evidence, such as appearance, contents, substance, internal patterns, location, or other distinctive characteristics, that the offered evidence is what it is claimed to be.

Applying this rule, the court found that the prosecution properly authenticated the MySpace page as a page belonging to the appellant's girlfriend, Ms. Barber, because

The MySpace profile printout featured a photograph of Ms. Barber and appellant in an embrace. It also contained the user's birth date and identified her boyfriend as "Boozy." Ms. Barber testified and identified appellant as her boyfriend, with the nickname of "Boozy." When defense counsel challenged the State to authenticate the MySpace profile as belonging to Ms. Barber, the State proffered Sergeant Cook as an authenticating witness. He testified that he believed the profile belonged to Ms. Barber, based on the photograph of her with appellant; Ms. Barber's given birth date, which matched the date listed on the profile; and the references in the profile to "Boozy," the nickname that Ms. Barber ascribed to appellant.....

On the record before us, we have no trouble concluding that the evidence was sufficient to authenticate the MySpace profile printout. Therefore, the trial court did not err or abuse its discretion in admitting that document into evidence.

Last week, in its opinion in Griffin v. State, 2011 WL 1586683 (Md. 2011), the Court of Appeals of Maryland disagreed and reversed.

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May 4, 2011 | Permalink | Comments (1) | TrackBack (0)

Tuesday, May 3, 2011

Article Of Interest: Jean Fleming Powers' Comparing Exceptions to Privilege and Confidentiality Relating to Crime, Fraud, and Harm—Can Hard Cases Make Good Law?

Back in 2008, I wrote an essay for the Northwestern University Law Review Colloquy entitled, Ordeal By Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality. The piece was inspired by the Alton Logan case (blogged about here, here, here, and here), in which Alton Logan languished in prison for 26 years while two attorneys failed to reveal that their client told them in confidence that he committed the crime for which Logan had been convicted. The attorneys kept mum based upon the duty of confidentiality owed by lawyer to client, and my argument was that an existing exception to the duty of confidentiality should be read to allow disclosure of client confidences in cases like the Alton Logan case. Specifically, Model Rule of Professional Conduct 1.6(b)(1) provides that

A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:

(1) to prevent reasonably certain death or substantial bodily harm....

My claim was that this exception should be read to create a wrongful incarceration/execution exception to attorney-client confidentiality. I think that if an individual like Alton Logan is convicted and sentenced to die, it is easy to see the argument that a lawyer revealing that his client admitted committing the crime for which Logan was convicted would or at least could prevent reasonably certain death. But what about if an individual like Logan is sentenced to something less than death? Would disclosure be reasonably necessary to prevent reasonably certain death or substantial bodily harm? This argument was a bit more of a stretch, but I claimed that the answer was "yes" because 

-in comparison to the non-incarcerated, inmates face an increased risk of physical violence based upon factors such as the concentration of violent individuals, overcrowding, prison culture, the inability of prisoners to physically separate themselves, the prevalence of drug use, and prison guard brutality;

-inmates experience heightened rates of communicable diseases contracted vis a vis the general population, perhaps explained by prison overcrowding (and prisoners accordingly living in close quarters) and compounded by generally poor medical screening and treatment in prisons;

-the consensus that inmates are subjected to an increased risk of same sex rape, with one study revealing that 98% of an inmate sample was aware of at least one sexual assault occurring in the previous year.

So, is this an argument that most states are likely to buy? Well, Alaska did the following year, but I doubt that most states will follow suit. So, if states aren't willing to buy this rationale, what is the alternative? According to the recent article, Comparing Exceptions to Privilege and Confidentiality Relating to CrimeFraud, and Harm—Can Hard Cases Make Good Law?, 79 UMKC L. Rev. 61 (2010), by Jean Fleming Powers, a professor at the South Texas College of Law, the answer is to create an exception to attorney-client confidentiality when an attorney feels that revealing confidential information is reasonably necessary to prevent a significant loss of liberty.

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May 3, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, May 2, 2011

Jumping To Conclusions: Northern District Of Illinois Quickly Deems Plaintiff's Robbery Conviction Inadmissible Under Rule 609(a)(1)

Federal Rule of Evidence 609(a)(1) provides that

evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

In turn, Federal Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Sometimes, when a part seeks to admit (or exclude) evidence of a prior conviction for impeachment purposes, you get a great court opinion that really digs into the probative value and unfair prejudice of the subject conviction. Other times, you get an opinion like the recent opinion of the United States DIstrict Court for the Northern District of Illinois in Blackwell v. Kalinowski, 2011 WL 1557542 (N.D.Ill. 2011).

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May 2, 2011 | Permalink | Comments (1) | TrackBack (0)

Sunday, May 1, 2011

Call Me: Northern District Of California Finds Prison Phone Call Is Nontestimonial

A prisoner makes a phone call to his acquaintance. The acquaintance makes incriminatory statements during the phone call, which is recorded. At the prisoner's trial, the acquaintance does no testify, and the prosecution introduces the phone call into evidence under an exception to the rule against hearsay. Does the admission of the phone call violate the Confrontation Clause? According to the recent opinion of the United States District Court for the Northern District of California in Ibarra v. McDonald, 2011 WL 1585559 (N.D. Cal. 2011), the answer is "no."

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May 1, 2011 | Permalink | Comments (1) | TrackBack (0)