Saturday, August 13, 2011
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:....
(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
The recent opinion of the Court of Appeals of Texas, Dallas, in Delagarza v. State, 2011 WL 3484797 (Tex.App.-Dallas 2011), provides good illustrations of how (and maybe how not) to authenticate writings under these Rules.
Friday, August 12, 2011
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 may embrace ultimate issues in their testimony, they may not offer ultimate legal conclusions, a distinction seemingly missed by the Court of Appeals of Texas, Houston, in its recent opinion in Ruiz-Angeles v. State, 2011 WL 3447468 (Tex.App.-Houston [14 Dist.] 2011).
Thursday, August 11, 2011
Guilt By Association?: Court Of Appeals Of Minnesota Finds Possibly Erroneous Admission Of Guilty Plea To Be Harmless
Let's say that a defendant is charged with murder and assault based upon allegedly having another man punch a woman he had impregnated. And let's say that the other man pleads guilty to crimes connected with the punching during a guilty plea hearing, implicating the defendant in the process. If the court errs by admitting the transcript of the other man's guilty plea hearing at the defendant's trial, can the error be harmless? According to the recent opinion of the Supreme Court of Minnesota in State v. Gatson, 2011 WL 3300351 (Minn. 2001), the answer is "yes."
Wednesday, August 10, 2011
The Informant!: Ohio Court Finds Confidential Informant's Statement Was a Nontestimonial Present Sense Impression
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter unless circumstances indicate lack of trustworthiness.
So, let's say that a detective drives a confidential informant to a controlled drug buy. After leaving the undercover car, the informant approaches the co-defendant and engages him in conversation. The informant then returns to the detective and tells him that the co-defendant "had a gun." Is this statement a present sense impression under Rule 803(1)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District in State v. Bulger, 2011 WL 3359861 (Ohio App. 8 Dist. 2011), the answer is "yes," and I agree. But is the statement "testimonial" for Confrontation Clause purposes?
Tuesday, August 9, 2011
Date Of Birth: Eastern DIstrict Of Arkansas Finds No Error WIth Admission Of Birth Certificate In Child Pornography Case
Federal Rule of Evidence 803(9) provides an exception to the rule against hearsay for
Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.
I don't believe that I have talked about Rule 803(9) yet on this blog, but the recent opinion of the United States District Court for the Eastern District of Arkansas in United States v. Blum, 2011 WL 3418399 (E.D.Ark. 2011), gives me my first chance.
about an incident in which the analyst who completed an autopsy was not available to testify at trial. Defense counsel refused to stipulate to the admissibility of the analyst's report, so the judge allowed the prosecutor to qualify the deputy medical examiner as an expert. Then the medical examiner testified about the meaning of a series of autopsy photos, relying on the absent analyst's inadmissible report.
The post deals with several popular issues on this blog: the Confrontation Clause, Federal Rule of Evidence 703 (which D.C. courts have adopted in case law), and the peculiar problems created by multi-defendant trial. Interested readers should check out the post, Rogers: On Autopsy Photos and the Perils of Being a Co-Defendant.
Monday, August 8, 2011
Facebook Status: Inadmissible: Appellate Court Of Connecticut Upholds Exclusion Of Facebook Messages
A defendant is charged with assault. A witness for the prosecution testifies against the defendant and claims that she had not spoken to the defendant in person, by telephone, or by computer since the assault. The defendant then seeks to impeach the witness with a printout of messages sent back-and-forth between a Facebook account indisputably belonging to the defendant and a Facebook account indisputably belonging to the witness. The witness claims that she could not have authored the messages from her account because her account was hacked, but the evidence reveals that the hacking occurred after the subject messages were sent. Has the defendant properly authenticated the messages as coming from the witness? According to the recent opinion of the Appellate Court of Connecticut in State v. Eleck, 2011 WL 3278663 (Conn.App. 2011), the answer is "no" because the "hacking" "highlights the general lack of security of the medium...." I disagree.
Sunday, August 7, 2011
Calling Mr. Oswald With The Swastika Tattoo: MN Court Finds No Error With Testimony About Defendant's Swastika Tattoo In Assault Appeal
A defendant with a Swastika tattoo gets into a physical altercation with a Caucasian man after an earlier incident between the defendant and the Caucasian' man's African-American fiancé. The defendant is charged with crimes connected to the physical altercation, and the fiancé testified at trial regarding the prior incident that the defendant
had asked me to give him a hug, and I replied no, because he didn't like me anyway, you know, for the fact that being he had a—a swastika emblem on his arm, you know, that I had seen way before then. So we had already had that conversation about that, so I told him, Why should I hug you? You don't even like me. You know, why would we even go there?
Was this testimony, which referenced the defendant's Swastika tattoo, properly admitted, or was its probative value substantially outweighed by the danger of unfair prejudice? That was the question addressed by the Court of Appeals of Minnesota in its recent opinion in State v. Swinger, 2011 WL 3241791 (Minn.App. 2011).