EvidenceProf Blog

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

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Saturday, July 16, 2011

No Shit!: Court Of Appeals Of Iowa Implies Statement, "I Got You WIth Shit" Was Not An Admission Of Feces Throwing

During a road trip this week, my wife and I got into a discussion of why the word "shit" is a curse word (I don't remember what prompted the discussion). Why is "shit" a curse word, "crap" a quasi-curse word, and "poo" not a curse word? And why do we use certain animal feces in expressions? Why is something that is nonsense "bullshit" or "horseshit" and not "catshit?" I guess that calling someone "batshit crazy" makes sense because batshit -- guano -- really can make someone crazy. And calling a wimpy person "chickenshit" also makes sense because we also call wimpy people "chicken."

One consequence of using the word "shit" as a profanity is that we don't always know whether a person using the term is cursing or actually referring to feces. Or, at least that was the belief of the Court of Appeals of Iowa in its recent opinion in State v. Landis, 2011 WL 2694717 (Iowa.App. 2011). 

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July 16, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, July 15, 2011

Express Yourself: Massachusetts Appeals Court Finds Bruton Doctrine Inapplicable To Witness Intimidation

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. Thus, if Carl and Dan are charged with bank robbery and jointly tried before a jury, the prosecution could not introduce Carl's statement that "Dan and I robbed the bank" unless Carl testifies at trial. Conversely, if Carl's confession was that "someone and I robbed the bank," the prosecution could introduce it because it would not have facially incriminated Dan. But what if Carl's statement were a threat to a prospective witness against Carl and Dan that testimony would leave her vulnerable to 'deal with Dan's cousins and that she could end up dead? According to the recent opinion of the Massachusetts Appeals Court in Commonwealth v. Teixeira, 2011 WL 2610557 (Mass.App. 2011), such a statement is not facially incriminatory. I disagree.

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July 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 14, 2011

Maintaining Consistency: Court Of Appeals Of Minnesota Finds "Reasonably Consistent" Prior Statement Qualifies As Prior Consistent Statement

Minnesota Rule of Evidence 801(d)(1)(B) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness....

But does a prior statement have to be essentially the same as the declarant's testimony to qualify as a prior consistent statement, or can there be (minor) discrepancies? According to the recent opinion of the Court of Appeals of Minnesota in State v. Standifer, 2011 WL 2672025 (Minn.App. 2011), the statements can differ as long as they are "reasonably consistent."

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July 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 13, 2011

Passive Aggressive?: Court Of Appeals Of Utah Finds Invited Errors Doctrine Precludes Rule 609(d) Appeal

Like its federal counterpart, Utah Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is generally not admissible under this rule. The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult and the court is satisfied that admission in evidence is necessary for a fair determination of the issue of guilt or innocence. 

As the recent opinion of the Court of Appeals of Utah in State, ex rel. P.N., 2011 WL 2670451 (Utah.App. 2011), makes clear, however, the proscriptive language of Rule 609(d) does not matter if the invited error doctrine applies.

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July 13, 2011 | Permalink | Comments (1) | TrackBack (0)

Tuesday, July 12, 2011

Tried And Prejudice: Supreme Court Of Connecticut Finds Presumed Prejudice When Prosector Invades A-C Privilege

A prosecutor invades a defendant's attorney-client privilege by reading privileged materials containing trial strategy. Even assuming that the invasion was not intentional, should the court presume prejudice? And assuming that the court does presume prejudice, should there be a presumption in favor of dismissal? According to the recent opinion of the Supreme Court of Connecticut in State v. Lenarz, 2011 WL 2638158 (Conn. 2011), the answer to both questions is "yes."

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July 12, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, July 11, 2011

Just The Facts, Ma'am: Court Of Special Appeals Of Maryland Finds Confrontation Clause Covers Objective Facts

The Confrontation Clause states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

But does the Confrontation Clause cover only analytical and conclusory statements, or does it also cover "routine and descriptive and objectively ascertained and reliable facts?" According to a Maryland trial court, it only covers the former. According to the Court of Special Appeals of Maryland in its recent opinion in Green v. State, 2011 WL 2578562 (Md.App. 2011), it also covers the latter.

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July 11, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 10, 2011

Beast Of Burden: 7th Circuit Finds § 1983 Plaintiffs Bears Burden Of Proving Warrantless Search Not Justified By Exigency

Federal Rule of Evidence 301 provides that

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

I haven't had the opportunity yet to discuss Rule 301 on this blog, but the recent opinion of the Seventh Circuit in Bogan v. City of Chicago, 2011 WL 2623504 (7th Cir. 2011), gives me my first chance.

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July 10, 2011 | Permalink | Comments (0) | TrackBack (0)