Saturday, September 17, 2011
Like its federal counterpart, Arkansas Rule of Evidence 901(b)(1) provides that a party can authenticate evidence through the "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." And, like its federal counterpart, Arkansas Rule of Evidence 901(b)(9) provides that a party can authenticate evidence through "[e]vidence describing a process or system used to produce a result and showing that the process or system produces an accurate result." And, as the recent opinion of the Court of Appeals of Arkansas in Williams v. State, 2011 WL 4067412 (Ark.App. 2011), makes clear, if the prosecution seeks to introduce DVDs containing video recordings of a defendant selling drugs to a confidential informant, it can authenticate the DVDs by satisfying both rules.
Friday, September 16, 2011
Source Code: 1st Circuit Finds Plaintiff Couldn't Satisfy Best Evidence Rule In Aircraft Tracking Software Appeal
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.
Federal Rule of Evidence 1004, however, provides that
The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if [one of four situations apply]....
If however, a party seeks to prove the content of a writing and cannot satisfy one of the Rule 1004 factors (or produce a duplicate), it will be unsuccessful as was the case in the recent opinion of the First Circuit in Airframe Systems, Inc. v. L-3 Communications Corp., 2011 WL 4058676 (1st Cir. 2011).
Thursday, September 15, 2011
Judicial Notice: 5th Circuit Finds Failure To Disclose FBI Interview Not A Brady Violation In Judicial Sexual Favor Appeal
Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. That said, the Fifth Circuit has determined that evidence turned over to the defense during trial has not been "suppressed" within the meaning of Brady so long as "the evidence is received in time for its effective use at trial." And that was a problem for the defendant in United States v. Barraza, 2011 WL 3925675 (5th Cir. 2011).
Wednesday, September 14, 2011
Florida Rule of Evidence 90.610(1) provides that
A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....
But what proof of the witness' prior convictions must the party possess for impeachment to be permissible? That was the question addressed by the recent opinion of the District Court of Appeal of Florida, Fourth District, in Barcomb v. State, 2011 WL 3903118 (Fla.App. 4 Dist. 2011).
Tuesday, September 13, 2011
In The Habit?: Central District Of Illinois Deems Safety Rating Evidence Admissible As Habit Evidence
Federal Rule of Evidence 406 provides that
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
So, let's say that a car driver sues a truck driver and his employer for negligence after a car accident and seeks to present into evidence the employer's safety ratings? Should the court allow for the admission of the evidence pursuant to Federal Rule of Evidence 406? According to the recent opinion of the United States District Court for the Central District of Illinois in Campbell v. RAP Trucking Inc., 2011 WL 3924177 (C.D.Ill. 2011), the answer is "yes." I agree that the evidence was admissible but don't agree that it was admissible under Rule 406.
Monday, September 12, 2011
Internet blogs recently lit up with reports of a minor traffic collision involving a Honda Civic and a Ferrari driven by pop sensation Justin Bieber (see, e.g., here). The next day, bloggers reported an interesting development (see, e.g., here): according to these blogs, another celebrity – “Everlast” – sent out the following electronic message (i.e., “tweet”) on Twitter “moments before the crash”:
What is particularly interesting about this sequence of events from an evidentiary perspective is the potential admissibility of Everlast’s “tweet” in any subsequent litigation.
Of course the tweet, if offered for its truth, is hearsay. At the same time, as with many tweets (which are intended to communicate “what’s happening” at any given moment, see twitter.com), Everlast’s tweet may fall within the hearsay exception for present sense impressions.
Sunday, September 11, 2011
In General, Take 3: DRI Finds Testimony About Hernia Patch Admissible Despite Lack Of General Acceptance
Last week, I noted that someone on the Evidence professor listserv posed the question of whether a court has ever found that expert evidence that did not have general acceptance within the relevant expert community still satisfied the Daubert test. A follow-up e-mail asked the question of "What is the 'thing' that must be generally accepted?" This was the question addressed by the United States District Court for the District of Rhode Island in its recent opinion in Thorpe v. Davol, Inc., 2011 WL 470613 (D.R.I. 2011), with the court noting that it is the expert's principles and methodology, not the conclusions that they generate, that must be generally accepted.