EvidenceProf Blog

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

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Saturday, July 30, 2011

Highway Robbery?: ND Ill Makes 2 Seeming Errors In Deeming Armed Robbery Conviction Inadmissible

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

In its recent opinion in Blackwell v. Kalinowski, 2011 WL 3046320 (N.D. Ill. 2011), the the United States District Court for the Northern District of Illinois made two seeming errors in applying this Rule to a plaintiff's felony armed robbery conviction.

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July 30, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, July 29, 2011

Say Cheese: Tenth Circuit Finds Subsequent Remedial Measure Evidence Properly Excluded For Irrelevance

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But while a party can use evidence of subsequent remedial measures to impeach witnesses, it can only do so if such evidence is relevant, which was a problem for the defendant in Leprino Foods Co. v. Factory Mut. Ins. Co., 2011 WL 3134625 (10th Cir. 2011).

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

Thursday, July 28, 2011

The Bullet & The Damage Done: Court Of Appeals Of Mississippi Finds No Error In Admission Of Dying Declaration Based On Nature Of Wound

Like its federal counterpart, Mississippi Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

But let's say that a declarant makes a statement relatively soon before dying without being told that his death is imminent or any overt indication that he believes his death to be imminent. Can the court infer such a belief based solely on the nature of the declarant's injuries? According to the recent opinion of the Court of Appeals of Mississippi in Moore v. State, 2011 WL 3066211 (Miss.App. 2011), the answer is "yes."

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

Wednesday, July 27, 2011

Not Surprising: Court Of Appeals Of Ohio Reverses Conviction Based On Prosecution's Improper Impeachment Of Own Witness

Ohio Rule of Evidence 607(A) provides in relevant part that

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.

And because the prosecution impeached its own witness through a prior inconsistent without a showing of surprise and affirmative damage in State v. Holloway, 2011 WL 2899596 (Ohio App. 8 Dist. 2011), the Court of Appeals of Ohio, Eighth District, had to reverse the defendant's conviction.

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

Tuesday, July 26, 2011

D.C. Follies: D.C. Court Errs In Analysis Of (In)Admissibility Of Plaintiff's Conviction For Distributing A Controlled Substance

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

Sometimes, courts apply Rule 609(a)(1) correctly. Other times, they badly botch the analysis as was the case with the United States District Court for the District of Columbia in its recent opinion in Jennings v. Thompson, 2011 WL 2976936 (D.D.C. 2011).

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July 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, July 25, 2011

Call The Police: Eastern District Of Pennsylvania Finds Testimony From Police Expert Inadmissible Under Rule 704(a)

Federal Rule of Evidence 704(a) states that

Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

But while witnesses can embrace ultimate issues in their testimony, they cannot feed ultimate legal conclusions to jurors. And this limitation was a problem for the plaintiff in the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Quagliarello v. Dewees, 2011 WL 2937396 (E.D.Pa. 2011) 

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July 25, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 24, 2011

In Plain Sight? Colorado Court Fins Probation Records Qualify For Admission Under Public Records Exception To Hearsay Rule

Like its federal counterpart, Colorado Rule of Evidence 803(8)(B) provides an exception to the rule against hearsay

Unless the sources of information or other circumstances indicate lack of trustworthiness, [for] records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel....

So, are probation records admissible under Rule 803(8)(B) or inadmissible under its criminal case restriction? According to the recent opinion of the Colorado Court of Appeals in People v. Gregg, 2011 WL 2899622 (Colo.App. 2011), they are admissible. But was the court correct that the plain language of the Rule compels this conclusion?

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July 24, 2011 | Permalink | Comments (0) | TrackBack (0)