EvidenceProf Blog

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

Saturday, September 3, 2011

Pretty Intimidating: Tenth Circuit Denies Appealability Petition In Jury Intimidation Case

Similar to its federal counterpart, Colorado 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 his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jurors' attention or whether any outside influence was improperly brought to bear upon any juror. Nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received for these purposes.

In its recent opinion in Selectman v. Zavaras, 2011 WL 3805614 (10th Cir. 2011), the Tenth Circuit denied a petition for a Certificate of Appealability to challenge the district court's denial of the petitioner's petition for writ of habeas corpus. And while I don't disagree with the court's conclusion, I wonder why the Colorado appellate courts did not previously award the petitioner a new trial based upon jury impeachment that was admissible under an exception to Rule 606(b).

Continue reading

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

Friday, September 2, 2011

Wrong Turn?: Supreme Court Of Montana Finds Placement Of Sign At Intersection After Accident Not Admissible To Impeach Under Rule 407

Like its federal counterpart, Montana 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 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.

So, evidence of subsequent remedial measures are not admissible to probve negligence, but it is admissible to impeach a witness. So, let's say that a witness testified concerning the (lack of) dangerousness in the intersection in which an accident occurred. Can the plaintiff then present evidence of a "no left turn" sign placed at the intersection after the accident, not to prove negligence, but to impeach the witness' testimony? According to the recent opinion of the Supreme Court of Montana in United Tool Rental, Inc. v. Riverside Contracting, Inc., 2011 WL 2011 WL 3847217 (Mont. 2011), the answer is "no."

Continue reading

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

Thursday, September 1, 2011

Rule 609 and the Frustratingly Unkillable Five-Factor Mahone Framework

Thanks Colin for inviting me to be a guest blogger!  I wanted to start my stint with a somewhat technical critique of the courts’ application of Evidence Rule 609 – I see this as one of the lowest hanging fruits in terms of things I would love to change in modern evidence jurisprudence, and a fairly important one for criminal trial practice.

Every few weeks, an American court publishes an opinion that explains why a defendant’s criminal conviction was admissible to impeach his credibility under Federal Rule of Evidence 609, or a state analogue.  See Federal Rule Evidence of 609 (permitting prosecution to impeach a defendant with prior convictions “if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused”).  The opinion inevitably contains an argument along these lines:  the defendant’s testimony, in which he claimed to be innocent, was “important” and his credibility “central” to the case and therefore impeachment was necessary to allow the jury to render a proper verdict.

Here is a recent example:

“The court agrees with the government that the . . . Defendant’s testimony will conflict with that of the government's witnesses, making Defendant’s credibility central to the case.  As Defendant’s testimony and credibility will be of great importance, the court believes 99–CF–491 may be used as impeachment evidence should Defendant elect to testify.”

U.S. v. Sutton, No. 10–CR–20048, 2011 WL 2671355, 5 (C.D.Ill. July 8, 2011)

This reasoning reflects a misunderstanding of the applicable legal standard – a misunderstanding that is now so common that it seems almost futile to try to correct it. 

At the same time, the flaw in the reasoning described above is so obvious it is difficult to understand its persistence.  Every time a defendant testifies, his testimony will be “important” (if believed) and therefore his credibility will be “central to the case.”  How can these factors – which will always be present in this form – be determinants of whether to allow impeachment under Rule 609?

Continue reading

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

(Not To) Burst Your Bubble: 3rd Circuit Finds District Court Erred In Applying Rule 301 In Mortgage Cancelling Appeal

Federal Rule of Evidence 301 provides that

In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

So, what does it take for a party to to detroy the presumption prescribed by Rule 301? According to the recent opinion of the Third Circuit in Cappuccio v. Prime Capital Funding LLC, 2011 WL 3584323 (3rd Cir. 2011), the answer is "not much."

Continue reading

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

Wednesday, August 31, 2011

Please Welcome Guest Blogger Jeffrey Bellin

Please welcome Jeffrey Bellin as a guest blogger for the months of September and October. Professor Bellin is an Assistant Professor at the SMU Dedman School of Law, where he teaches Evidence, Criminal Law, and Criminal Procedure. Before joining SMU, Professor Bellin was a prosecutor with the United States Attorney’s Office in Washington, D.C, an associate at the San Diego office of Latham & Watkins, and a Senior Attorney for the California Courts of Appeal. His articles include:

Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, 160 UNIVERSITY OF PENNSYLVANIA LAW REVIEW (forthcoming 2011-2012);

Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 CORNELL LAW REVIEW 1075 (2011) (with Junichi P. Semitsu);

Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, 71 OHIO STATE LAW JOURNAL 229 (2010) (reviewed here); and

Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. DAVIS LAW REVIEW 289 (2008).


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

Please Welcome Guest Blogger Marc C. McAllister

Please welcome Marc C. McAllister as a guest blogger for the month of September. Professor McAllister is a Professor at the Florida Coastal School of Law, where his teaching and scholary interests are in the fields of Criminal Law, Criminal Procedure, Evidence, Constitutional Law, Administrative Law, and Comparative Law. His specific areas of expertise are in Confrontation Clause jurisprudence and the use of emerging technologies in criminal investigation, enforcement, and adjudication. Before coming to Florida Coastal, he was a judicial clerk for Judge Charles R. Wilson, Eleventh Circuit Court of Appeals and the Director of Legal Research and Writing at the Western State University College of Law. His articles include:

Evading Controntation: From One Amorphous Standard to Another (anticipated publication spring 2012);

The Disguised Witness and Crawford's Uneasy Tension with Craig: Bringing Uniformity to the Supreme Court's Confrontation Jurisprudence, 58 Drake L. Rev. 481 (2010) (reviewed here);

Down But Not Out: Why Giles Leaves Forfeiture by Wrongdoing Still Standing, 59 Case W. Res. L. Rev. 393 (2009); and

Two-Way Video Trial Testimony and the Confrontation Clause: Fashioning a Better Craig Test in Light of Crawford, 34 Florida State University Law Review 835 (2007).


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

Unspecified Error, Tale 2: Supreme Court Of Minnesota Reverses Prior Precedent, Allows For Impeachment Through Unspecified Prior Convictions

About two years ago, I posted an entry about the opinion of the Court of Appeals of Minnesota in State v. Utter, 2009 WL 2926510 (Minn.App. 2009). In Utter, the defendant was on trial for violating a harassment restraining order, and the prosecution sought to impeach him through his prior conviction for violating an order of protection. The trial court ruled that the prosecution could impeach Utter by asking him whether he had a prior conviction but could not ask him any questions concerning the crime leading to that conviction or the circumstances surrounding that conviction. This is what is known as impeachment through an unspecified prior conviction.

After he was convicted, Utter appealed, claiming that impeachment through unspecified convictions is improper, and the Court of Appeals of Minnesota agreed, concluding that

The court's solution substantially reduced the risk of admitting a prior conviction to impeach that is identical or similar to the current conviction, namely that the jury may conclude that because the defendant “did it before, he most likely has done it again.” But the court's solution also discarded the measure by which the jury could assess the impeachment value of the prior conviction. The impeachment value of the prior crime varies with the nature of the offense....By shielding the jury from the nature of appellant's prior conviction, the district court allowed the jury to speculate that the prior crime had much greater impeachment value than it may actually have had.

In its recent opinion in State v. Hill, 2011 WL 3687535 (Minn. 2011), however, the Supreme Court of Minnesota overruled Utter and endorsed the idea of impeachment through unspecified prior convictions.

Continue reading

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

Tuesday, August 30, 2011

Emergency Urgent: District Of Oregon Seemingly Errs In Deeming Testimony Concerning E-Mails Beyond Scope of Best Evidence Rule

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.

So, let's say that a party wants to introduce testimony concerning e-mails but does not produce those e-mails. Can the party get around the Best Evidence Rule by claiming that it is not proving the contents of those e-mails and is instead merely proving the witness' opinions/impressions of the content of the e-mails? According to the recent opinion of the United States District Court for the District of Oregon in HTI Holdings, Inc. v. Hartford Cas. Ins. Co., 2011 WL 3704821 (D.Or. 2011), the answer is "yes." I disagree.

Continue reading

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

Monday, August 29, 2011

Can You Hear Me?: Court Of Appeals Of Texas Finds Failure To Hold In Camera Rape Shield Hearing Isn't Reversible Error

Similar to its federal counterpartTexas Rule of Evidence 412(c) provides that if a criminal defendant is trying to present evidence under an exception to the rape shield rule,

the defendant must inform the court out of the hearing of the jury prior to introducing any such evidence or asking any such question. After this notice, the court shall conduct an in camera hearing, recorded by the court reporter, to determine whether the proposed evidence is admissible....The court shall determine what evidence is admissible and shall accordingly limit the questioning. The defendant shall not go outside these limits or refer to any evidence ruled inadmissible in camera without prior approval of the court without the presence of the jury.

So, let's say that the defendant informs the court of his intention to present evidence under an exception to the rape shield rule. And let's say that the court hears arguments from both sides before deeming the evidence inadmissible but does not hold an in camera hearing. Is this evidentiary error that could form the basis for a new trial? Or is the requirement of an in camera hearing a requirement put in place to protect the alleged victim, meaning that the failure to hold one should not lead to reversal? For the answer, let's look at the recent opinion of the Court of Appeals of Texas, Houston, in Nevelow v. State, 2011 WL 2899377 (Tex.App.-Houston [14 Dist. 2011]).

Continue reading

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

Sunday, August 28, 2011

Tattoo You: Court Of Appeals Of Texas, Dallas, Finds Evidence Of Defendant's "187" Tattoo Admissible

Like its federal counterpart, Texas Rule of Evidence 403 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, or needless presentation of cumulative evidence.

So, let's say that a defendant is charged with murder and claims that he acted in self-defense. And let's say that after the killing the defendant gets "187" tattooed on his hand. Should the prosecution be able to present evidence of this tattoo at trial? According to the recent opinion of the Court of Appeals of Texas, Dallas, in Salazar v. State, 2011 WL 3770297 (Tex.App.-Dallas 2011), the answer is "yes."

Continue reading

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