EvidenceProf Blog

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

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Saturday, June 4, 2011

Read My Lips, No Lip Reading Testimony?: Court Of Appeals Of Indiana Opinion Poses Question About Lip Read Statements

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 every post-Davis/Hammon ongoing emergency case that I've seen, the statement at issue has been a classic verbal statement by the declarant. In Sandefur v. State, 945 N.E.2d 785 (Ind.App. 2011), however, the Court of Appeals of Indiana applied the Davis/Hammon to nonverbal conduct: mouthed bu unspoken words by a declarant. And that raises an interesting question.

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June 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, June 3, 2011

Open And Shut: North Carolina Strengthens Its Open Discovery Law

Back in 2004,

North Carolina Governor Mike Easley signed a bill into law that require[d] prosecutors to share their files in all felony cases. The bill was approved in the wake of allegations that prosecutors withheld evidence in the capital murder trial of Alan Gell, who was later exonerated and freed from death row. The new open discovery statute require[d] district attorneys to open their investigative files in felony cases to defense lawyers who request[ed] such access prior to trial. The law require[d] DAs to provide such things as police investigator notes, defendant and witness statements, test results and a list of probable witnesses for the trial. In return, defense attorneys will have to provide the state with witness lists and details about the grounds on which they plan to defend their client

That bill created G.S. § 15A-903, and you can read its text by clicking here. So, what besides the Gell case led to the passage of G.S. § 15A-903, what problems has the law encountered, and what did North Carolina recently do in connection with the bill? These are the subjects of this post.

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June 3, 2011 | Permalink | Comments (1) | TrackBack (0)

Thursday, June 2, 2011

Legally Blind?: Supreme Court Attempts To Clarify The Willful Blindness Doctrine

Willful blindness is one of my favorite topics to teach. My current go to case on the doctrine is Nunley v. United States, 2009 WL 2386674 (9th Cir. 2009), in which (1) a man asked Larry Nunley to haul a large quantity of marijuana in his truck; (2) Nunley refused but left the keys to his truck with the man while he watched the Super Bowl for 3 hours; and (3) Nunley returned to his truck, saw a new container in it, and drove off without opening the container. The opinion is 2 pages on Westlaw and a nice and quick way to teach students the basics of willful blindness.

Now, however, via our sister blog, White Collar Crime Prof Blog, by Professor Ellen Podgor, comes word of the Supreme Court's important opinion in Global-Tech Appliances, Inc. v. SEB S.A., 2011 WL 2119109 (U.S. 2011), and a new tool to teach the topic as the Court attempts to clarify the specifics of the doctrine.

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June 2, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 1, 2011

That's A Legal Problem: Higgs v. State And The Nevada Test For The Admissibility Of Expert Testimony

Last month, I posted an entry about Wisconsin becoming the 31st state to adopt or apply the Daubert standard to determine whether to admit a witness to testify as an expert in a given field. At the time, I promised to do a 19 state tour of the remaining states to shine a light on the varying tests that these states use. Today, I will start our tour in the Battle Born State of Nevada.

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

Tuesday, May 31, 2011

Article Of Interest: Sam Stonefield's Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment

If you have ever taught or taken an Evidence class, you likely know about the following oddity in the Federal Rules of EvidenceFederal Rule of Evidence 801(c) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted," and Federal Rule of Evidence 802 provides that "[h]earsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress." Meanwhile, Federal Rule of Evidence 803 and Federal Rule of Evidence 804 provide exceptions to the rule against hearsay for statements that are offered in evidence to prove the truth of the matter asserted but which are thought to be sufficiently reliable/trustworthy.

And then, there is Federal Rule of Evidence 801(d), which indicates in relevant part that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or

(2) Admission by party-opponent. The statement is offered against a party and is

(A) the party's own statement, in either an individual or a representative capacity or

(B) a statement of which the party has manifested an adoption or belief in its truth, or

(C) a statement by a person authorized by the party to make a statement concerning the subject, or

(D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship, or

(E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.

In a sense, then, Rule 801(d) is oxymoronic. Rules 803 and 804 make sense. They take statements that are defined as hearsay under Rule 801(c) and say, "Well, wait a minute. These are exceptions to that rule." But Rule 801(d) is internally inconsistent with Rule 801(c). Rule 801(c) provides the definition of hearsay, but then Rule 801(d) basically says, "Well, no. That's not really the definition because here are 8 statements that should be deemed hearsay under Rule 801(c) but which we are going to classify as 'not hearsay.'"

As Sam Stonefield, a professor at the Western New England College of Law, notes in his new article, Rule 801(d)’s Oxymoronic “Not Hearsay” Classification: The Untold Backstory and a Suggested Amendment, 2011 Fed. Cts. L. Rev. 5 (May 2011), while this oddity ha not caused significant problems for lawyers and judges, Rule 801(d) is poorly written and is in need of a good rewrite.

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May 31, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, May 30, 2011

A Matter Of Character?: Alaska Case Reveals State's Domestic Violence Character Evidence Exception

Similar to Federal Rule of Evidence 404(b), Alaska Rule of Evidence 404(b)(1) provides that

Evidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Alaska, however, also has Alaska Rule of Evidence 404(b)(4), which provides that

In a prosecution for a crime involving domestic violence or of interfering with a report of a crime involving domestic violence, evidence of other crimes involving domestic violence by the defendant against the same or another person or of interfering with a report of a crime involving domestic violence is admissible. In this paragraph, "domestic violence" and "crime involving domestic violence" have the meanings given in AS 18.66.990.

So, how do Alaska courts apply Alaska Rule of Evidence 404(b)(4), and how many states have so-called domestic violence exceptions to the propensity character evidence proscription? These are the topics that I will address in this post.

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May 30, 2011 | Permalink | Comments (1) | TrackBack (0)

Sunday, May 29, 2011

Conspiracy Theory: Should Courts Find Co-Conspirator Admissions To Confidential Informants Per Se Nontestimonial?

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. 

Meanwhile, 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.

The conventional wisdom among courts in the wake of Crawford is that co-conspirator admissions made to confidential informants/undercover agents are "nontestimonial" and thus present no problems under the Confrontation Clause. But does such a categorical conclusion make sense? Let's take a look at the recent opinion of the United States District Court for the Central District of California in Le v. Dexter, 2011 WL 1842887 (C.D. Cal. 2011), to see.

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May 29, 2011 | Permalink | Comments (2) | TrackBack (0)