EvidenceProf Blog

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

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Saturday, July 23, 2011

Triple Play: D.C. Court Of Appeals Reverses Murder Conviction Based Upon 3 Serious Error By Trial Court

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.

The District of Columbia does not have codified rules of evidence, but as the recent opinion of the District of Columbia Court of Appeals in Smith v. United States, 2011 2899126 (D.C. 2011) (Download Smith v. United States), makes clear, it has adopted the Rule in case law, and the trial court's failure to adhere to the Rule led to a reversal of the defendant's conviction.

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

Friday, July 22, 2011

Total Recall: 7th Circuit Finds No Problem With Introducing Prior ID After Declarant Testifies

Federal Rule of Evidence 801(d)(1)(C) 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...one of identification of a person made after perceiving the person...

But does the statement of identification have to be introduced contemporaneous with the declarant's testimony, or can it be introduced later as long as the opposing party is allowed to recall the declarant as a witness? According to the recent opinion of the Seventh Circuit in United States v. Foster, 2011 WL 2909455 (7th Cir. 2011), contemporaneity is not required.

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

Thursday, July 21, 2011

A Shock To The System: TN Court Finds No Problem With Admission Of Excited Utterance Following Subsequent Startling Event

Like its federal counterpartTennessee Rule of Evidence 803(2) provides an exception to the rule against hearsay for 

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

So, let's say that a child is allegedly sexually abused, and the next day her mother tells her to urinate before taking a bath. Instead of complying, the child cries and screams out that she was sexually abused by her uncle. Does this qualify as an excited utterance under Rule 803(2)? According to the Court of Criminal Appeals of Tennessee in its recent opinion in State v. Taylor, 2011 WL 2767032 (Tenn.Crim.App. 2011), the answer is "yes."

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July 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 20, 2011

Polly Wants A New Trial: DDC Seemingly Errs Badly In Finding Harmless Error In Connection With Rule 703 Ruling

Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

So, let's assume that the plaintiff's expert relies upon an inadmissible report to offer opinion testimony at trial. And, assume that the court improperly allows the plaintiff to "parrot" the report's conclusions to the jury. Also, assume that the report is really good. So good, in fact, that the defendant's expert endorses the report. That has to be reversible error, right? Not according to the recent opinion of the United States District Court for the District of Columbia in Huthnance v. District of Columbia, 2011 WL 2836363 (D.D.C. 2011).

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July 20, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 19, 2011

Character Of The Matter: 8th Circuit Case Reveals Rule 405(a) Limitation On Rule 404(a)(2) Evidence

Back on Sunday, I posted an entry about how defendants seeking to present good character evidence about themselves under the "mercy rule" of Federal Rule of Evidence 404(a)(1) can only present reputation and/or opinion testimony under Federal Rule of Evidence 405(a) unless character is an essential element of his defense. As the recent opinion of the Eighth Circuit in United States v. Drapeau, 2011 WL 2652317 (8th Cir. 2011), makes clear, the same principle applies when defendant seek to present bad character evidence about victims under the "mercy rule" of Federal Rule of Evidence 404(a)(2).

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July 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, July 18, 2011

Attention, Wal-Mart Shoppers: Court Of Appeals Of Texas Seemingly Botches Best Evidence Analysis

Like its federal counterpart, Texas Rule 1002, Texas' Best Evidence Rule, provides tha

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 law.

But, like its federal counterpart, Texas Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

In its recent opinion in Massey v. State, 2011 WL 2698608 (Tex.App.-Dallas 2011), the Court of Appeals of Texas, found that a videotape cobbled together from numerous surveillance cameras at Wal–Mart was properly admitted under Rule 1003, but was this the correct decision?

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July 18, 2011 | Permalink | Comments (1) | TrackBack (0)

Sunday, July 17, 2011

Not Too Helpful: Fourth Circuit Finds Character Evidence Regarding Helpfulness Was Properly Excluded

Federal Rule of Evidence 404(a)(1) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...[i]n a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

Meanwhile, Federal Rule of Evidence 405 provides that

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

What this means is that while a criminal defendant can use Rule 404(a)(1)'s "mercy rule" to present evidence of a pertinent character trait, he can only prove that trait through opinion and/or reputation testimony unless that trait is an essential element of the charge against him or his defense. And this limitation was a problem for the defendant in United States v. Lecco, 2011 WL 2708416 (4th Cir. 2011).

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July 17, 2011 | Permalink | Comments (0) | TrackBack (0)