EvidenceProf Blog

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

Saturday, July 2, 2011

"That's What Insurance Is For": Court Of Appeals Of Minnesota Finds Malpractice Insurance Evidence Properly Admitted

Like its federal counterpart, Minnesota Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

So, was the Court of Appeals of Minnesota correct in its recent opinion in Zwaschka v. Carney, 2011 WL 2519135 (Minn.App. 2011), that evidence of malpractice insurance was properly admitted despite Rule 411? I don't think so.

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

Friday, July 1, 2011

Formula 409: D. Mass. Errs in Deeming Evidence Of Payment Of Maintenance & Care Inadmissible Under Rule 409

Federal Rule of Evidence 409 provides that

Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

The classic Rule 409 case involves Dan and Paul getting into a car accident and Dan jumping out of his car and promising to pay for Paul's medical expenses and/or paying for Paul's medical expenses. Rule 409 deems Dan's offer/payment inadmissible to prove Dan's liability for the accident because, according to the Advisory Committee's Note, such an offer/payment

is usually made from humane impulses and not from an admission of liability, and...to hold otherwise would tend to discourage assistance to the injured person. 

But what happens when a party seeks to introduce evidence of such an offer/payment to prove something other than liability? The evidence should be admissible, contrary to the conclusion of the United States District Court for the District of Massachusetts in its recent opinion in Zeghibe v. ConocoPhillips Co., 2011 WL 2489736 (D.Mass. 2011).

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

Thursday, June 30, 2011

Gettin' (Un)Lucky In Kentucky: Court Of Appeals Of Kentucky Finds Trial Court Erred In Excluding Evidence That Alleged Victim Was A "Crack Whore"

Assume that a defendant is on trial for sexually assaulting a victim. And, assume that the defendant's defense is, essentially, that the alleged victim is a "crack whore." Should the defendant be able to present evidence of the alleged victim's prior drug (ab)use, without any accompanying evidence that she traded sex for drugs (or money to get drugs) to support the inference that she consented to the subject sexual act in exchange for drugs (or drug money)? According to trial courts in Kentucky in Vermont, the answer is "no." According to the Supreme Court of Vermont and the Court of Appeals of Kentucky in its recent opinion in Bell v. Commonwealth, 2011 WL 2078563 (Ky.App. 2011), the answer is "yes." In this post, I will explain why I think that these opinions were horribly misguided.

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

Wednesday, June 29, 2011

Independence Day, Take 3: Why I Think That The Supreme Court Will Find No Confrontation Clause Violation In Williams v. Illinois

Yesterday, I noted that the Supreme Court granted cert in Williams v. Illinois (10-8505) to address a question left unanswered by Bullcoming v. New Mexico: Is the Confrontation Clause violated when an expert witness for the prosecution relies upon a testimonial report prepared by an analyst who does not testify at trial, but the report itself is not admitted into evidence to prove the truth of the matter asserted? This was different from the question resolved by Bullcoming, in which the Court held that the Confrontation Clause is violated when such a testimonial report is actually admitted into evidence. Indeed, Justice Sotomayor made this distinction clear in her concurring opinion in Bullcoming, which I wrote about yesterday. In that post about Sotomayor's concurring opinion, I mused about whether the Bullcoming dissent would be able to create a 5-4 majority finding no Confrontation Clause violation in a case where a testimonial report is relied upon but not actually admitted into evidence to prove the truth of the matter asserted. And, based upon the facts of Williams v. Illinois, 939 N.E.2d 268 (Ill. 2010), I think the dissent will achieve this result.

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June 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 28, 2011

Independence Day, Take 2: Supreme Court Grants Cert in Williams v. Illinois

Well, it now looks like the Supreme Court will soon answer the question I raised in my earlier post today. According to SCOTUSblog:

The Supreme Court, in its final orders on Tuesday, showed its continued interest in the Sixth Amendment’s Confrontation Clause, taking on a new case on whether an expert witness can be called as a stand-in for a lab analyst who actually did a test on criminal evidence, but did not appear at the trial.  That question was close to one that had been raised last week by Justice Sonia Sotomayor as the Court ruled in the case of Bullcoming v. New Mexico (09-10876)....

The new Confrontation Clause case is Williams v. Illinois (10-8505).  In that case, the Illinois Supreme Court ruled that prosecutors could introduce a forensic analyst’s report on a DNA test of evidence by offering it through the on-stand testimony of an expert witness, when the lab analyst was not available to testify.  The expert witness had had no part in making the analysis, and no personal knowledge of how the test was done.  The state Supreme Court nevertheless concluded that there was no violation of the suspect’s confrontation right, because the lab report was being admitted not for its truth, but only to explain the expert’s opinion about the results.

That was quite similar to a scenario mentioned by Justice Sotomayor on June 23, in her concurrence in the Bullcoming case.  In that case, the Court had ruled that a lab supervisor could not be a surrogate witness in place of a lab technician who prepared a report but did not appear, so the lab test was not admissible.  Sotomayor sought to show that the decision was a narrow one, and listed several factual scenarios that she said were not covered.  One of them was a situation in which “an expert witness was asked for his independent opinion about underlying testimonial reports that were not themselves admitted into evidence.”   The Court apparently granted the Williams case on Tuesday to judge that very situation. 

 I will have more on Williams tomorrow.


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

Independence Day?: What Does Justice Sotomayor's Bullcoming Concurrence Tell Us About Expert Opinions Based Upon Non-Admitted Testimonial Reports?

While I was away, guest blogger Ann Murphy wrote an excellent post about the Supreme Court's recent opinion in Bullcoming v. New Mexico. As she noted, in Bullcoming, the Court, in a 5-4 opinion, held that the Confrontation Clause was violated through the admission of a report concerning Bullcoming's blood alcohol content with the accompanying testimony of an analyst but without the accompanying testimony of the analyst who prepared the report. This was the result I previously predicted because Bullcoming was the easy case. As I noted in a previous post about Bullcoming:

I think that Bullcoming is an easy case given that the prosecution clearly introduced the absent analyst's report to prove the truth of the matter asserted in it. Given this, the case is just like Melendez-Diazand the Court should reach the same conclusion. And I feel safe in my belief because Confrontation Clause expert Richard Friedman has argued the same on The Confrontation Blog. As he notes, the tougher case is when an expert witness relies upon an absent analyst's report as the basis for opinion testimony but the report is not admitted into evidence. But, as he also notes, "that case is not the one before the Court [in Bullcoming], in which the prosecution clearly introduced a full report by the absent analyst. So, will the Court "simply resolve the case before it," or will it reach broader conclusions....? On that question, we will just have to wait and see.

Well, it turns out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provides a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman.

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

Monday, June 27, 2011

Deepwater Horizon Order - Marital Privilege when using a Company Computer

An interesting recent discovery dispute Order reflects the fascinating balance between the spousal privilege and one’s expectation of privacy in the use of his or her computer email at work. A Magistrate Judge in In re: Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, On April 20, 2010 [United States District Court for the Eastern District of Louisiana, (MDL No. 2179 – Section J), available at: http://www.theemployerhandbook.com/oil.pdf]determined that a husband had no reasonable expectation of privacy in emails sent to his wife from his work computer. The husband’s assertion of the marital privilege was denied, and he was unsuccessful in his efforts to block the release of those emails.

As we all know, the Deepwater Horizon oil drilling rig suffered an explosion on April 20, 2010. As a result, 11 workers died and the world saw the largest accidental oil spill in history. Many parties instituted litigation against the manufacturer of the rig, the owners of the rig, and numerous other parties. This Order concerning the marital privilege is one of many issued thus far in the case. 

Brian Morel was a drilling engineer employed by BP (British Petroleum) on the Macondo Well – the site of the drilling on the date of the explosion. He married a BP production engineer in 2008. His wife did not have any professional responsibilities on the Macondo Well. He sent her many email messages through their BP work accounts. The Plaintiff Steering Committee (PSC), the United States, the States of Louisiana and Alabama, Halliburton, and other litigants scheduled a deposition of Mr. Morel. His counsel informed the parties that he would invoke his Fifth Amendment privilege in response to any questions they might ask. BP had already turned over email sent by Mr. Morel. He objected to the release of 93 of these emails based upon an asserted marital privilege. In this Order, Magistrate Judge Shushan determined that Mr. Morel had no expectation of privacy in the emails sent to his wife through their BP account and the marital privilege did not apply. This is instructive as presumably we would have the same result if a party wishes to use that privilege at trial and there is an evidentiary objection. 

The emails were sent from Mr. Morel’s email account with BP to his wife’s email account with BP. His attorney argued that there was indeed an expectation of privacy in the emails because there was no evidence that BP monitored its employees’ emails and the parties seeking the emails had not met their burden to overcome the presumption of privilege. 

BP had a “pop-up screen” that appeared when their employees used their work computers and it stated the following: “within the bounds of law, electronic transmissions through internal and external networks may be monitored to ensure compliance with internal policies and legitimate business purposes.” BP also informed employees that personal data and communications were not private and that email was “subject to potential compulsory disclosure by subpoena.”  Despite these warnings, Mr. Morel’s counsel argued that BP had no prohibition against employees using the email network for personal use, and no policy of actual monitoring had ever been shown.  “Mr. Morel urges that the determination is not made on the basis of the written BP policies but on how those policies were implemented.”

Judge Shushan analyzed a 5th Circuit case, U.S. v. Slanina, 283 F. 3d 670 (5th Cir. 2002) in which the Court found an expectation of privacy despite an employee’s use of his work computer. In her Order, Judge Shushan distinguished Slanina because in that case, there was also no evidence that there was any sort of computer policy in place and there was no evidence that employees were informed of a dissemination policy or monitoring. She also considered a case cited by Mr. Morel, In re: Asia Global Crossing, Ltd., a bankruptcy case from New York (322 BR 247 (Bankr. S.D.N.Y. 2005)) that set forth the following four factors for determining an employee’s expectation of privacy:

  1. Does the corporation maintain a policy banning personal or other objectionable use;
  2. Does the company monitor the use of the employee’s computer or email;
  3. Do third parties have a right of access to the computer or emails; and
  4. Did the corporation notify the employee, or was the employee aware, of the use and monitoring policies. 

Judge Shushan decided that other cases did not require a finding that a company banned personal use of computers and email and that there was no specific evidence in this case that monitoring did not occur within BP. She decided to follow the reasoning of these other cases and specifically found the following:

It is not objectively reasonable for an employee to have an expectation of privacy where the employers’ policies clearly demonstrate that: 1) the employee’s electronic communications are not private; 2) they may be monitored and accessed by the employer; and 3) they are subject to production by a subpoena.

It is an interesting Order and brings to mind some of the similar cases of employee use of computers to contact and communicate with their attorneys. For an interesting recent case on that front, see Holmes v. Petrovich Development Co., LLC, a California Appellate case, available at: http://scholar.google.com/scholar_case?case=9181011446702902609&hl=en&as_sdt=2&as_vis=1&oi=scholarr


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