EvidenceProf Blog

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

Saturday, July 9, 2011

Simple Fracture: Supreme Judicial Court Of Massachusetts Finds No Problem With "Fracture Match" Testimony

A "fracture match" is a "physical match" or "jigsaw match" that occurs when a substance or an item has been broken into one or more pieces, and the jagged ends are observed to fit together. The underlying premise of a "fracture match" is that an item that is broken or torn by human action will not be fractured in exactly the same way twice. This is because the application of human force is not precisely reproducible, and the characteristics of a break or a tear will be different every time. Thus, a break or a tear brought about by human force will be unique, and the resulting ends at the point of the break or tear will interlock in a unique "match." And, as the recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Gomes, 944 N.E.2d 1007 (Mass. 2011), "fracture-match" testimony has been accepted in at least six States and has seemingly not yet been rejected. 

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July 9, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, July 8, 2011

His Dying Words: NY Court Finds Confrontation Clause Exception For Testimonial Dying Declarations

A few months ago, I posted an entry about the Supreme Court of Wisconsin becoming the latest court to find that the admission of testimonial dying declarations does not violate the Confrontation Clause. At the time, I noted that "[s]ince Crawford, no state court has found that the admission of a testimonial dying declaration violated the Confrontation Clause." And the recent opinion of the Supreme Court of New York, Appellate Division, Second Department, in People v. Clay, 2011 WL 2570701 (N.Y.A.D. 2 Dept. 2011), doesn't change things.

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July 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 7, 2011

They Call Them The Diamond Dogs: Cadaver Dogs, Take 2

In the wake of the Casey Anthony verdict, I thought that I would do another post about cadaver dogs. In my prior post on the subject, I compared the standards used by courts (or at least the Court of Appeals of Texas) in allowing testimony concerning scent-lineup dogs and cadaver dogs. As I noted in that post, the Court of Appeals of Texas has held that

In determining whether a dog used in a scent lineup was qualified, we have applied five factors....In Risher, we held that a scent-lineup dog is qualified if "it (1) is of a breed characterized by acuteness of scent and power of discrimination, (2) has been trained to discriminate between human beings by their scent, (3) has been found by experience to be reliable, (4) was given a scent known to be that of the alleged participant of the crime, and (5) was given the scent within the period of its efficiency."... The Fourteenth Court of Appeals applied these same five factors in Winston to determine the reliability of a dog that tracked a burglary suspect based on human scent left at the crime scene.

Conversely, the Court of Appeals of Texas held that

Searches by cadaver dogs are different from searches by dogs for scents left by live humans. Deputy Pikett testified that cadaver searching is a less rigorous skill because it only requires the dog to be able to distinguish between human scents and animal scents, and the dog need not further distinguish between individual humans. As we explain below, because the skills necessary for a cadaver dog differs from the skills necessary for scent lineups or the tracking of suspects, we conclude that only some of the five factors in Risher apply to searches by cadaver dogs.

The rest of the post then went into more detail about the ways in which it is easier to admit cadaver dog testimony that scent-lineup dog testimony. But should cadaver dog testimony be readily admitted? Is the use of cadaver dogs generally accepted in the relevant scientific community, the only factor under Frye and one of the factors under Daubert? That was the question addressed by the Court of Special Appeals of Maryland in Clark v. State, 781 A.2d 913 (Md.App. 2001).

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July 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 6, 2011

Be My Guide: The Massachusetts Guide to Evidence

In a recent post about Georgia becoming the 43rd state to create state rules of evidence similar to the Federal Rules of Evidence, I noted that

The Supreme Judicial Court of Massachusetts famously refused to adopt the Proposed Massachusetts Rule of Evidence in 1982 and has shown no signs of wavering in its position. California and Kansas both have codified rules of evidence based upon the Uniform Rules of Evidence, and I don't see them jumping tracks to the Federal Rules of Evidence any time soon.

Moreover, I have written several previous posts about some of the problems caused by Massachusetts' failure to have codified rules of evidence (see, e.g. here). That said, Massachusetts lawyers and judges aren't rudderless in this regard. Rather, as the Honorable Peter W. Agnes, Jr. recently pointed out to me, there is the Massachusetts Guide to Evidence.

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

Tuesday, July 5, 2011

You've Got It: Court Of Appeals Of Ohio Upholds Breach Of Contract Verdict Based On Rule 1004(3)

Like its federal counterpart, Ohio 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 statute enacted by the General Assembly not in conflict with a rule of the Supreme Court of Ohio.

That said, like its federal counterpart, Ohio Rule of Evidence 1004(3) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]t a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be subject of proof at the hearing, and that party does not produce the original at the hearing....

Rule 1004(3) is pretty rarely applied, so it is always nice to come across a case like Publishing Group, Ltd. v. Cooper, 2011 WL 2418654 (Ohio App. 10 Dist. 2011), which shows the Rule in action.

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

Monday, July 4, 2011

None Of Your Business: Supreme Court Of Tennessee Finds Doctor's Report Not A Business Record In 4th Of July Case

Like its federal counterpart, Tennessee Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses made at or near the time by or from information transmitted by a person with knowledge and a business duty to record or transmit if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with Rule 902(11) or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term “business” as used in this paragraph includes business, institution, profession, occupation, and calling of every kind, whether or not conducted for profit.

So, what criteria do Tennessee court use in determining whether a document qualifies as a business record under Tennessee Rule of Evidence 803(6)? Well, let's take a look at Arias v. Duro Standard Products Co., 303 S.W.3d 256 (Tenn. 2010), for the answer.

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

Sunday, July 3, 2011

What Is This, An Interrogation?: Court Of Appeals Of Wisconsin Finds Trial Judge Crossed Line With Judicial Interrogation

Like its federal counterpart, Wis. Stat. Ann. Section 906.14 provides:

(1) Calling by judge. The judge may, on the judge's own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.
(2) Interrogation by judge. The judge may interrogate witnesses, whether called by the judge or by a party.
(3) Objections. Objections to the calling of witnesses by the judge or to interrogation by the judge may be made at the time or at the next available opportunity when the jury is not present.

So, when does a judge cross the line from engaging in proper interrogation to becoming an improper advocate? According to the Court of Appeals of Wisconsin, the line is crossed when a judge engages in behavior like the judge in In re Exsavon A.J., 2011 WL 2462975 (Wis.App. 2011).

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