EvidenceProf Blog

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

Saturday, August 27, 2011

Under One Condition: Eastern District Of Pennsylvania Finds Evidence Of Doctor's Alcoholism Conditionally Relevant

Back in January, Joseph J. Kubacki, the former chair of the Temple University School of Medicine Ophthalmology Department, was charged with fraud and making false statements in health-care matters in a 144-count indictment from the United States Department of Justice.

Kubacki, a pediatric eye specialist, is accused of falsely claiming between 2002 and 2007 to have provided more than $1.5 million in services to patients at a clinic run by the ophthalmology department. The indictment says Kubacki, who had an office at Temple University Hospital, made notations in the charts of patients, seen by other doctors, indicating that he also had seen and evaluated those patients – when he hadn’t. In some cases, he wasn’t even in town when the patients were seen.

Recently, the government sought to introduce evidence relating to Dr. Kubacki's alcohol abuse when at the Ophthalmology Department. And as the United States District Court for the Eastern District of Pennsylvania noted in its recent opinion in United States v. Kubacki, 2011 WL 3627317 (E.D. Pa. 2011), the admissibility of this evidence required a finding of conditional relevance.

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

Friday, August 26, 2011

3 For 1: Supreme Court Of South Carolina Opinion Addresses 3 Important Evidentiary Issues, Including 2 Errors

South Carolina Rule of Evidence 106, the "rule of completeness," provides that

When a writing, or recorded statement, or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Meanwhile, South Carolina Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Finally, South Carolina Code section 16–3–659.1(1), South Carolina's rape shield rule, provides that

Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct is not admissible in prosecutions under Sections 16-3-615 and 16-3-652 to 16-3-656; however, evidence of the victim's sexual conduct with the defendant or evidence of specific instances of sexual activity with persons other than the defendant introduced to show source or origin of semen, pregnancy, or disease about which evidence has been introduced previously at trial is admissible if the judge finds that such evidence is relevant to a material fact and issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value. Evidence of specific instances of sexual activity which would constitute adultery and would be admissible under rules of evidence to impeach the credibility of the witness may not be excluded.

If you want a pretty discussion of some of the relevant features of each of these rules, you need look no further than the recent opinion of the Supreme Court of South Carolina in State v. Tennant, 2011 WL 3568527 (S.C. 2011).

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

Thursday, August 25, 2011

It's Too Late: Court Of Appeals Of Ohio Finds No Error In Exclusion Of Alleged Prior Consistent Statement

Like its federal counterpart, Ohio Rule of Evidence 801(d)(1)(b) provides that

A statement is not hearsay if...[t]he declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with declarant's testimony and is offered to rebut an express or implied charge against declarant of recent fabrication or improper influence or motive....

As the recent opinion of the Court of Appeals of Ohio, First District, in State v. Strutz, 2011 WL 3111983 (Ohio App. 1 Dist. 2011), (sort of) makes clear, however, a statement can only qualify as a prior consistent statement under this rule if it was made before any motive to lie arose.

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August 25, 2011 | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 24, 2011

A Private Matter?: Military Court Opinion Reveals Problem With Military Rape Shield Rule

Federal Rule of Evidence 412(a), the federal Rape Shield Rule, provides that evidence of an alleged victim's sexual predisposition or other sexual behavior is inadmissible to establish her propensity to consent to sexual acts and her conformity with that propensity, and thus consent, at the time of the alleged rape or sexual assault. In turn,Federal Rule of Evidence 412(b)(1)(A)-(C) set forth exceptions to the Rape Shield Rule when such evidence is offered for other purposes at criminal trials, as long as the evidence is "otherwise admissible" pursuant to Federal Rule of Evidence 403, which provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Meanwhile, Federal Rule of Evidence 412(b)(2) sets forth a general exception to the Rape Shield Rule when such evidence is offered for other purposes at civil trials, but only "if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." A comparison between the language in Federal Rule of Evidence 403 and Federal Rule of Evidence 412(b)(2) reveals at least a few key differences. Under Rule 403, evidence will be admissible unless its probative value is substantially outweighed by one of several dangers. Conversely, Rule 412(b)(2) flips that balancing test, with evidence only being admissible if its probative value substantially outweighs two dangers. Second, Rule 403 asks judges to consider the danger of unfair prejudice (and several other dangers never really raised in Rape Shield cases) while Rule 412(b)(2) asks judges to consider the danger of unfair prejudice "to any party" and "the danger of harm to any victim," the latter not being a danger listed in Rule 403. As the recent opinion of the United States Court of Appeals for the Armed Forces in United States v. Gaddis, 70 M.J. 248 (U.S. Armed Forces 2011), makes clear, the military rape shield partially incorrectly conflates these two tests. But are these tests as different as the court asserts, and does that difference have a Constitutional component?

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

Tuesday, August 23, 2011

The University of Wisconsin Law School Invites Applications For Tenure-Track Faculty Positions

From an e-mail I just received:

THE UNIVERSITY OF WISCONSIN LAW SCHOOL invites applications for one or more tenure-track faculty positions to begin Fall 2012 (negotiable). Applications are welcome across legal fields and at the intersection of law and other academic disciplines. The University of Wisconsin Law School has a strong institutional commitment to diversity of all types, and we encourage applications from those whose backgrounds can further contribute to the diversity of the faculty. Applicants should submit a letter of interest, current résumé (including a list of teaching interests), a research agenda, and references to:

Professor Anuj C. Desai, Chair, Faculty Appointments Committee, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706-1399 (or via e-mail to <acdesai@wis.edu>). The University of Wisconsin-Madison is an affirmative action/equal employment opportunity employer.

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

Hairy Situation: D.C. Judge Precludes Investigator From Testifying About Defendant's Inability To Grow A Beard

The Felony Calendars is blogging about the murder trial of Gary Dickens and Antwarn Fenner. Here is the blog's inroductory description of the case:

On August 8, 2008, in the late evening hours, Stanley Daniels was shot to death in the 3500 block of Georgia Avenue, Northwest, in Washington, D.C.  Daniels was 48 years old at the time.

Two men are charged with premeditated murder for Daniels' death:  Gary Dickens, now 41; and Antwarn Fenner, now 37. 

The government's theory is that Daniels' killing was a revenge killing.  On July 8, 2008 -- one month to the day before Daniels was killed -- Gary Dickens' estranged wife was stabbed to death.  In the days leading up to the shooting, Dickens and Antwarn Fenner -- Dickens' cousin -- understood that Stanley Daniels was the one who killed the wife.  

And so, the government will say, Dickens and Fenner conspired to kill Daniels.  Documents filed with the court suggest prosecutors will try to prove that both men planned the murder, and then Fenner pulled the trigger.

Fenner and Dickens were both indicted on first-degree murder and conspiracy charges.  Fenner alone faces weapons possession charges.

You can check out The Felony Calendars for detailed descriptions of the daily goings-on in the case, but in this post I wanted to focus on an interesting evidentiary ruling in the case dealing with the (in)admissibility of evidence about Fenner's alleged inability to grow a beard.

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August 23, 2011 | Permalink | Comments (4) | TrackBack (0)

Monday, August 22, 2011

No (P)reservations: 7th Circuit Finds Plaintiff Failed To Preserve Impeachment Issue In Section 1983 Appeal

Federal Rule of Evidence 103(a)(2) provides that

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...

(2) Offer of proof. - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

When, at trial, the court prevents the admission of evidence and there was no prior definitive ruling, the adverse party must make an offer of proof in compliance with Rule 103(a)(2). And that was a problem for the plaintiffs in Duran v. Town of Cicero, 2011 WL 3444353 (7th Cir. 2011).

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

Sunday, August 21, 2011

Some Call It Subterfuge: Court Of Appeals Of North Carolina Finds Impeachment Of Reluctant Witness Fine Under Rule 607

North Carolina Rule of Evidence 607 provides that "The credibility of a witness may be attacked by any party, including the party calling him." That said,  courts have consistently ruled that such impeachment is impermissible where it is used as a mere subterfuge to present evidence to the jury that is otherwise inadmissible. So, let's say that the prosecution knows that it has a reluctant witness who is only testifying because he was subpoenaed and advised that he would be arrested if he failed to appear at trial. Can the prosecution call this witness and then impeach him with statements that incriminate the defendant? According to the recent opinion of the Court of Appeals of North Carolina in State v. Austin, 2011 WL 3570111 (N.C.App. 2011), the answer is "yes," at least based upon the facts before it.

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