EvidenceProf Blog

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

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Saturday, August 20, 2011

Unadulterated?: Court Of Appeals Of Mississippi Case Touches On The Crime Of Adultery & Spousal Privilege

Mississippi Annotated Code Section 97-29-1 (still) provides that

If any man and woman shall unlawfully cohabit, whether in adultery or fornication, they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.

In other words, adultery is still apparently a crime in Mississippi. So, how did Section 97-29-1 and Mississippi Rule of Evidence 504, Mississippi's husband-wife privilege (kind of) come into play in the recent opinion of the Court of Appeals of Mississippi in McDonald v. McDonald, 2011 WL 3570011 (Miss.App. 2011)?

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

Friday, August 19, 2011

Free Your Mind: 9th Circuit Finds Harmless Error In Connection With Expert Hypos In Aryan Brotherhood Appeal

It is well established that experts may be asked hypothetical questions on cross-examination, but such questions "must not require the expert to assume facts that are not in evidence." United States v. Stinson, 2011 WL 3374231 (9th Cir. 2011), provides a nice illustration of a prosecutor engaging in misconduct by asking an expert to assume facts not in evidence. It also illustrates the laissez faire approach that the Ninth Circuit has taken with regard to such misconduct on appeal.

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

Thursday, August 18, 2011

Same Sex: 8th Circuit Uses Same Logic To Uphold Rule 414 As It Used To Uphold Rule 413 Against Constitutional Attack

Federal Rule of Evidence 414(a), enacted by Congress as part of the Violent Crime Control and Law Enforcement Act of 1994, provides in relevant part that

In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.

In its opinion in United States v. Mound, 149 F.3d 799 (8th Cir. 1998), the Eight Circuit found that Federal Rule of Evidence 413(a), which allows for the admission of evidence of prior sexual assaults by defendants charged with sexual assault, to be constitutional. And, in its recent opinion in United States v. Coutentos, 2011 WL 3477190 (8th Cir. 2011), the Eighth Circuit reached the same conclusion with regard to Rule 414(a).

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August 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 17, 2011

In The Public Eye: Court Of Appeals Of Texas Finds Public Records Weren't Self-Authenticating In Negligence Appeal

Texas Rules of Evidence 902(4) & (10) provide that

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:....

(4) Certified Copies of Public Records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2) or (3) of this rule or complying with any statute or other rule prescribed pursuant to statutory authority.....

(10) Business Records Accompanied by Affidavit.

(a) Records or photocopies; admissibility; affidavit; filing. Any record or set of records or photographically reproduced copies of such records, which would be admissible under Rule 803(6) or (7) shall be admissible in evidence in any court in this state upon the affidavit of the person who would otherwise provide the prerequisites of Rule 803(6) or (7), that such records attached to such affidavit were in fact so kept as required by Rule 803(6) or (7), provided further, that such record or records along with such affidavit are filed with the clerk of the court for inclusion with the papers in the cause in which the record or records are sought to be used as evidence at least fourteen days prior to the day upon which trial of said cause commences, and provided the other parties to said cause are given prompt notice by the party filing same of the filing of such record or records and affidavit, which notice shall identify the name and employer, if any, of the person making the affidavit and such records shall be made available to the counsel for other parties to the action or litigation for inspection and copying. The expense for copying shall be borne by the party, parties or persons who desire copies and not by the party or parties who file the records and serve notice of said filing, in compliance with this rule. Notice shall be deemed to have been promptly given if it is served in the manner contemplated by Rule of Civil Procedure 21a fourteen days prior to commencement of trial in said cause.

(b) Form of affidavit. A form for the affidavit of such person as shall make such affidavit as is permitted in paragraph (a) above shall be sufficient if it follows this form though this form shall not be exclusive, and an affidavit which substantially complies with the provisions of this rule shall suffice....

In its recent opinion in Husain v. Petrucciani,  2011 WL 3449497 (Tex.App.-Houston [14 Dist.],2011), the Court of Appeals of Texas, Houston correctly concluded that non-certified copies of public records no accompanied by an affidavit were not self-authenticating under these rules. But couldn't they still have been authenticated under Texas Rule of Evidence 901(b)(7)?

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

Tuesday, August 16, 2011

Is There A Doctor In Your Past?: Supreme Court Of Mississippi Permits Jury Impeachment Regarding Lies During Voir Dire

Similar to its federal counterpart, Mississippi Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

But while jurors may not testify as part of an inquiry into the validity of a verdict, almost all courts have found that jurors can testify to prove that a juror lied during voir dire, with the result being that a verdict is overturned. Most courts find that such testimony simply falls outside the scope of Rule 606(b). But in its recent opinion Merchant v. Forest Family Practice Cliic, P.A., 2011 WL 3505309 (Miss. 2011), the Supreme Court of Mississippi found that when a juror conceals information during voir dire, such information constitutes an improper outside influence, permitting juror testimony under the Rule.

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

Monday, August 15, 2011

Mommie Dearest: 10th Circuit Finds District Court Erred In Excluding Testimony Of Mother Who Ignored Sequestration Order

Federal Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or (4) a person authorized by statute to be present.

So, let's say that a trial court enters an order of sequestration pursuant to Rule 615, but a witness remains in the courtroom during other testimony. But let's say that the witness does this without the knowledge of the party calling her. Should the court allow the witness testify? According to the recent opinion of the Tenth Circuit in United States v. Washington, 2011 WL 3455826 (10th Cir. 2011), the answer is "yes."

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

Sunday, August 14, 2011

Self Preservation Instinct: 3rd Circuit Finds Defendant's Failure To Testify Precludes Review Of Cross-X Ruling

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant under Federal Rule of Evidence 609 through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. Meanwhile, Federal Rule of Evidence 611(b) states generally that

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

So, let's say that a defendant files a motion in limine before trial, seeking generally to restrict the scope of the prosecution's cross-examination of him in the event that he testifies at trial. If the court denies that motion, and the defendant thereafter declines to testify, is his appeal foreclosed by the logic of Luce? According to the recent opinion of the Third Circuit in United States v. Ferrer, 2011 WL 3468319 (3rd Cir. 2011), the answer is "yes."

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