EvidenceProf Blog

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

Saturday, August 6, 2011

Tell Me Lies; NJ Case Reveals Differences Between New Jersey & Federal Rule Of Evidence 608(b)

Federal Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

Meanwhile, New Jersey Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Except as otherwise provided by Rule 609, a trait of character cannot be proved by specific instances of conduct.

So, Federal Rule of Evidence 608(a) and New Jersey Rule of Evidence 608(a) are pretty similar. But, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in Department of Children and Families, Div. of Youth and Family Services v. F.D., 2011 WL 3274010 (N.J.Super.A.D. 2011), makes clear, Federal Rule of Evidence 608(b) and New Jersey Rule of Evidence 608(b) are quite different.

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

Friday, August 5, 2011

Submission Guide For Online Law Review Supplements, Version 5.0, Now Available On SSRN

Back in May 2009, I posted the initial Submission Guide For Online Law Review Supplements at SSRN. At the time, online law review supplements were a relatively new trend and a rarity at top law schools. Those days are over. By my count, there are now 36 online law review supplements, including (according to U.S. News), online law review supplements at:

∙7 of the top 10 schools;

∙15 of the top 20 schools;

∙18 of the top 30 schools;

∙19 of the top 40 schools; and

∙21 of the top 50 schools

In the near future, it will be 23 of the top 50 law schools as Notre Dame and Florida are set to add online supplements this year. You can download a copy of the Submission Guide For Online Law Review Supplements, Version 5.0 by clicking here. The new additions for Version 5.0 are:

The Docket (Buffalo);

The Circuit (California Berkeley);

DULR Online (Denver);

Hastings Law Journal Voir Dire;

HLRe (Houston);

Iowa Law Review Bulletin;

Kentucky Law Journal Online;

Louisiana Law Review Forum;

The Bulletin (Nebraska);

Addendum (North Carolina);

Just EnRICHment (Richmond);

Online Forum (Temple);

Discourse (UCLA); and

The Forum (Wake Forest)


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

Thursday, August 4, 2011

Independence Day, Take 4: NJ Court Upholds Admission Of Expert Testimony Based on Report By Non-Testifying Analyst

Back in June, the Supreme Court decided Bullcoming v. New Mexico, holding in a 5-4 opinion 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 forecasted. As I noted in a previous post,

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 turned out that the Court simply resolved the case before it, but Justice Sotomayor's concurring opinion in Bullcoming provided a strong indication that she would allow the expert witness testimony in the tougher case identified by Professor Friedman. At the end of my post, I concluded that lower courts would use Justice Sotomayor's concurrence to allow expert testimony in the tougher case. The first court (I believe) to deal with the tougher case in the wake of Bullcoming was the Superior Court of New Jersey, Appellate Division in its recent opinion in State v. Roach, 2011 WL 3241467 (N.J.Super.A.D. 2011). And, unsurprisingly, the court used Justice Sotomayor's concurrence to uphold the admission of expert testimony in the tougher case.

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August 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 3, 2011

Strength Of His Convictions: 9th Circuit Upholds Admission Of Prior Conviction Evidence Under Rule 703

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.

Usually, courts find that the balancing test set forth in Rule 703 is not satisfied and that otherwise inadmissible evidence underlying expert opinion testimony remains inadmissible. That was not the case, however, with the Ninth Circuit in its recent opinion in United States v. Smith, 2011 WL 2877819 (9th Cir. 2011).

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

Tuesday, August 2, 2011

Living With A Hernia: 9th Circuit Finds No Error In Failing To Appoint Expert Under Rule 706(a)

Federal Rule of Evidence 706(a) provides that

The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.

As the use of the word "may" in the first sentence of Rule 706(a) makes clear, it is usually within the court's discretion to appoint or not appoint expert witness, and Sanders v. York, 2011 WL 3152814 (9th Cir. 2011), was no exception.

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

Monday, August 1, 2011

Losing Your Privilege: Supreme Court Of Arkansas Finds Marital Privilege Doesn't Apply In Rape Appeal

Arkansas Rule of Evidence 504, Arkansas' husband-wife privilege, states:

(a) Definition. A communication is confidential if it is made privately by any person to his or her spouse and is not intended for disclosure to any other person.  

(b)  General Rule of Privilege. An accused in a criminal proceeding has a privilege to prevent his spouse from testifying as to any confidential communication between the accused and the spouse.  

(c)  Who May Claim the Privilege. The privilege may be claimed by the accused or by the spouse on behalf of the accused. The authority of the spouse to do so is presumed.  

(d)  Exceptions. There is no privilege under this rule in a proceeding in which one [1] spouse is charged with a crime against the person or property of (1) the other, (2) a child of either, (3) a person residing in the household of either, or (4) a third person committed in the course of committing a crime against any of them. 

In Clem v. Hobbs, 2011 WL 3135996 (Ark. 2011), the trial court allowed the defendant's wife to testify regarding confidential communications, but the problem for the defendant was that he was charged with crimes against their children.

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

Sunday, July 31, 2011

Not Warranted?: 8th Circuit Finds No Problem With Admission Of Arrest Warrant In Civil Action

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) 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, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.

So, under Rule 803(8)B), an arrest warrant could be excluded if offered in a criminal case but not if offered in a civil case, as was the case in Moore v. City of Desloge, Mo., 2011 WL 3189357 (8th Cir. 2011).

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July 31, 2011 | Permalink | Comments (0) | TrackBack (0)