EvidenceProf Blog

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

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Saturday, September 24, 2011

What The Hell Is A Stipulation?: 9th Circuit Affirms Seemingly Questionable Impeachment Instruction

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

The (only) purpose of impeachment under Rule 609(a)(1) is to show the jury that, based upon the witness' prior conviction(s), he might not be a trustworthy witness. Thus, if a criminal defendant chooses not to testify at trial, his prior conviction(s) cannot be admitted under Rule 609(a)(1) because he would not be a witness, meaning that he could not be impeached. That being the case, I am confused by what (I think) went on in United States v. Williams, 2011 WL 4342648 (9th Cir. 2011). 

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

Friday, September 23, 2011

The Usefulness of . . . Evidence

Since this is EvidenceProf Blog, it seems appropriate to mention celebrate this post by Orin Kerr over at the Volokh Conspiracy.  The post describes the results of a survey of George Washington Law School alumni who were asked to identify the "most useful" elective they had taken in law school.  The survey results received surprisingly widespread coverage given that the results seem intuitive (at least to me).  Here is coverage on the Wall Street Journal Law Blog; here on the ABA Journal; here on Prof. Bainbridge (celebrating the third place finish of Corporations).

Whatever the survey's weaknesses (and why admit that there are any?), the results are good for Evidence professors.  Evidence was the winner, hands down.  Administrative Law came in second – although one suspects that Administrative Law would not have done nearly as well in a survey of alumni of any school not located in Washington, D.C., but I will let someone on CorporationsProf Blog take up that fight . . .

- Jeff Bellin

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

Court Of Appeals Of Maryland Affirms Trial Court's Judicial Notice Of Fact That Proceedings Before Judge X Are "Absolutely Unconstitutional"

I'm going to put on record exactly why I ruled the way I did in the State's motion in limine. I just want to make sure it's clear for the appellate record.

I find and I'll take judicial notice that the proceedings that take place in front of [the judge who accepted Ms. Williams's guilty plea] are absolutely unconstitutional. He does such things as ask people certain things, tell them to nod their head, and then he just takes pleas and just does it. There is no state's attorney present. There is no defense attorney present. There is no semblance of any type of due process or any rights given to the defendants. It is so widespread that even the federal judges in Greenbelt won't recognize that as convictions.
Now, I understand [Petitioner's] argument, and I am not taking anything away from it. I just wanted to make sure that the record indicated why I was ruling, not that I was saying that [Petitioner] couldn't use a conviction against the witness. It's this conviction. It's unique only to what happened in that courtroom. I have long lamented what happens there. I just wanted that on the record. Thomas v. State, 2011 WL 4389167 (Md. 2011) (emphasis added)

This language originally came from a Maryland trial court, and the Court of Appeals of Maryland (Maryland's highest court) cited it yesterday in deeming the conviction of a witness for the prosecution unconstitutional and thus inadmissible. The Court of Appeals of Maryland had to agree with the trial court's decision to take judicial notice because the trial court had no evidence that the witness' conviction was unconstitutional, just the prosecutor's bare allegation of unconstitutionally. In other words, the Court of Appeals of Maryland must have agreed with the trial court that this "fact" was "not subject to reasonable dispute...." Maryland Rule of Evidence 5-201(b).

The rest of the post will lay out some more of the details of Thomas, but here's my question: Who is Judge X, and what can be done to remove him from power immediately (if he's still in power)? What happens to the (possibly thousands) of individuals who have been convicted after guilty pleas before this judge? What is the obligation of the Maryland judges and prosecutors who recognize the unconstitutionality of proceedings before this judge? What is our obligation? 

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

Thursday, September 22, 2011

Putting It All In Context: Supreme Judicial Court Of Massachusetts Finds No Problem With Prior ID

Massachusetts does no have codified rules of evidence, it does have the Massachusetts Guide to Evidence. And, as I have noted before, "[a]lthough the Guide is only guidance and not rules, it was 'approved for use' by [the] Supreme Judicial Court [of Massachusetts] in 2008." Pursuant to "Rule 801(d)(1)(C)" of the Guide, a statement is not hearsay if it is "[a] statement of identification made after perceiving the person if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement." But what about statements surrounding the statement of identification? Are they admissible as well or are they inadmissible hearsay? That was the question addressed by the Supreme Judicial Court of Massachusetts in its recent opinion in Commonwealth v. Walker, 2011 WL 4357665 (Mass. 2011).

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

Wednesday, September 21, 2011

The Trade-Off Is...: Court Of Appeals Of Texas Finds Jurors Can't Testify About Trading-Off Of Answers

Similar to its federal counterpart, Texas 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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that jurors "trade-off answers," i.e., they reach a compromise verdict. Can jurors impeach their verdict through testimony concerning their trading-off of answers? Unsurprisingly, according to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Damian v. Bell Helicopter Textron, Inc., 2011 WL 3836464 (Tex.App.-Fort Worth 2011), the answer is "no." What is surprising to me is that this wasn't always the case in Texas.

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

Tuesday, September 20, 2011

To Summarize: 10th Circuit Notes That Rule 1006 Doesn't Provide An Exception To Rule Against Hearsay

Federal Rule of Evidence 1006 provides that

The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place. The court may order that they be produced in court.

As the recent opinion of the Tenth Circuit in United States v. Irvin, 2011 WL 3833812 (10th Cir 2011), makes clear, however, Rule 1006 only provides parties with a (sort of) way around the Best Evidence Rule; it provides no exception to the rule against hearsay.

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

Monday, September 19, 2011

Character Of The Matter: Supreme Court Of Iowa Finds Trial Court Erred In Admitting Defendant's Harassment Conviction

Similar to Federal Rule of Evidence 609(a)(1), Iowa Rule of Evidence 5.609(a)(1) provides that

Evidence that a witness other than the accused has been convicted of a crime shall be admitted, subject to rule 5.403, if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

A prior conviction is probative to the extent that jurors use it as evidence that the defendant might not be a trustworthy witness at trial. A prior conviction is prejudicial to the extent that jurors (mis)use it as propensity character evidence, i.e., to conclude, "Once a criminal, always a criminal." In State v. Redmond, 2011 WL 3962864 (Iowa 2011), the prosecution had argued that a defendant's prior conviction was admissible under Rule 5.609(a)(1) to prove, in effect, "Once a criminal, always a criminal." And because the trial court bought this reasoning, the Supreme Court of Iowa had to reverse.

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

Sunday, September 18, 2011

Memory Loss: Supreme Court Of Mississippi Finds Confrontation Clause Violated By Admission Of Statement From Witness w/Memory Loss

In United States v. Owens, 448 U.S. 554 (1988),

the Supreme Court addressed whether a Confrontation Clause violation can be based upon a witness's loss of memory....In that case, a prison correction counselor had sustained severe memory impairment after being beaten with a metal pipe....When the counselor first spoke with the FBI, he was unable to remember his attacker's name....Weeks later, in a second interview with an FBI agent, he was able to describe the attack, name his attacker, and identify his attacker from a photo line-up....At trial, the counselor recounted what he had been doing just prior to the attack, described feeling blows to his head, and recalled seeing blood on the floor....He also vividly remembered identifying the defendant as his assailant during the second interview....On cross-examination, however, he acknowledged that he could not remember seeing his assailant at the time of the assault....And, even though he had received numerous visitors during his hospital stay, the counselor could not remember any of them except one, nor could he recall if any of those visitors had suggested that the defendant was his attacker....Defense counsel unsuccessfully sought to refresh the counselor's recollection with hospital records, which showed that he had, at one point, attributed the assault to someone other than the defendant....The Supreme Court held that no Confrontation Clause violation had occurred.....The Court explained that the opportunity for cross-examination "is not denied when a witness testifies as to his current belief but is unable to recollect the reason for that belief."

So, did Owens stand for the proposition that a live body on the witness stand is all that is required to satisfy Confrontation Clause concerns? And did the Supreme Court's landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004), change anything? These were the questions addressed by the recent opinion of the Supreme Court of Mississippi in its recent opinion in Goforth v. State, 2011 WL 4089967 (Miss. 2011).

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