EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, May 28, 2011

Adoption Agent: 2nd Circuit Finds Notes From Agent's Interrogation Of Suspect Admissible As Adoptive Admission

Assume that a suspect in a crime is interviewed by an investigative agent and makes certain incriminatory statements. And, assume that, during the interview, the agent takes notes during the interview that are not a perfect transcription of exactly what the suspect. But, assume that the agent shows the notes to the suspect at the end of the interview and has the suspect review and sign the notes. Should the notes be admissible against the suspect at trial? According to the recent opinion of the Second Circuit in United States v. Stafford, 2011 WL 1938662 (2nd Cir. 2011), the answer is "yes."

Continue reading

May 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, May 27, 2011

Refreshment. SImply Delivered: Plaintiff's Attorney Properly Uses Rule 612 In DIscrimination Suit Against DHL

Federal Rule of Evidence 612 indicates that

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

And, if you want a textbook example of a party properly utilizing Rule 612, you need look no further than the recent opinion of the First Circuit in Aponte-Rivera v. DHL Solutions (USA), Inc., 2011 WL 2027977 (1st Cir. 2011).

Continue reading

May 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 26, 2011

Article of Interest: Recognizing Constitutional Rights at Sentencing, by Carissa Hessick and Andy Hessick

In Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 506 (1969), the Supreme Court famously found that "[i]t can hardly be argued that either students or teachers shed their constitutional rights...at the schoolhouse gate." In their terrific new article, Recognizing Constitutional Rights at Sentencing, 99 Cal. L. Rev. 47 (2011), Carissa Hessick and Andy Hessick, professors at the Arizona State University College of Law, argue that the same applies to criminal defendants who have been convicted and then go through the courthouse doors to the sentencing hearing. The purpose of this post is two-fold: (1) to lay out the reasoning of their article; and (2) to apply the reasoning to victim impact statements. 

Continue reading

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

Wednesday, May 25, 2011

So Turn And Forfeit: Does A Wrongdoing Party Forfeit The Right To Impeach?

I was recently posed an interesting question. Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 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 which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

Meanwhile, Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

So, assume that a court finds that a defendant engaged in forfeiture by wrongdoing and allows the prosecution to admit the unavailable declarant's hearsay statement(s) against the defendant. Then, assume that the defendant wants to impeach the declarant pursuant to Federal Rule of Evidence 806 or a state counterpart. Has the defendant also forfeited his right to impeach the declarant like he forfeited his hearsay and Confrontation Clause objections? 

Continue reading

May 25, 2011 | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 24, 2011

Whole Grain: ND OH Opinion Reveals Rule 407 Doesn't Cover Plaintiff Subsequent Remedial Measures, But Rule 403 Does

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, if a plaintiff claims that a defendant's instrumentality was defective and that this defect caused the plaintiff to suffer damages, the plaintiff cannot present evidence of improvements by the defendant (subsequent remedial measures) to prove that the instrumentality was previously defective. But what if a defendant wants to present evidence of a subsequent remedial measure by a plainti? As the recent opinion of the United States District Court for the Northern District of Ohio in Younglove Const. v. PSD Development, 2011 WL 1933755 (N.D.Ohio 2011), makes clear, Rule 407 does not deem such evidence inadmissible, but courts often exclude it under Federal Rule of Evidence 403.

Continue reading

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

Monday, May 23, 2011

How Long Must I Dream?: District Of Colorado Finds Sleeping Juror Can Lead To 6th Amendment Claim, Despite Tanner

In Tanner v. United States, 483 U.S. 107 (1987), the Supreme Court held that post-trial juror testimony that, during trial, jurors were falling asleep, drinking alcohol, and using and selling drugs was inadmissible under Federal Rule of Evidence 606(b), which provides in relevant part that

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 that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form.

Moreover, the Court found that the trial court did not violate the district court did not violate the petitioners' Sixth Amendment right to a competent jury by applying Rule 606(b) to preclude jury impeachment on these topics. As the United States District Court for the District of Colorado noted in its recent opinion in Fletcher v. Hartley, 2011 WL 1843316 (D. Colo. 2011), however, the Court did in Tanner didn't answer a related question: If a court allows jury impeachment regarding jurors sleeping during trial, should that court find that a sleeping jurors violates the Sixth Amendment right to a competent jury?

Continue reading

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

Sunday, May 22, 2011

Make Me Whole, Take 7: Court Of Appeals Of Minnesota Finds No Problem With Impeachment Via Terroristic Threats Conviction

Similar to its federal counterpartMinnesota Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

In other words, if a witness has a conviction for as crime involving dishonesty or false statement (e.g., perjury, larceny by trick), the conviction is automatically admissible to impeach the witness, i.e., to show that his testimony is not trustworthy. If a witness has a conviction for a crime not involving dishonesty or false statement, the conviction will only be admissible if its probative value for showing that the witness' testimony is not trustworthy outweighs the prejudicial effect of the conviction. Most courts hold that a prior conviction can only be admissible under Rule 609(a) if it is for a crime that has some bearing on witness honesty. As I have noted in several posts (hereherehereherehere, and here), Minnesota courts are not among these courts. The latest example can be found in the recent opinion of the Court of Appeals of Minnesota in State v. Odeneal, 2011 WL 1833018 (Minn.App. 2011).

Continue reading

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