Saturday, October 1, 2011
In Need Of A Refresher: Court Of Appeals Of Louisiana Finds Trial Court Erred In Precluding Refreshment Of Recollection
In a criminal case, any writing, recording, or object may be used by a witness to refresh his memory while testifying. If a witness asserts that his memory is refreshed he must then testify from memory independent of the writing, recording, or object. If while testifying a witness uses a writing, recording, or object to refresh his memory an adverse party is entitled, subject to Paragraph C, to inspect it, to examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
And, as the recent opinion of the Court of Appeal of Louisiana, Fourth Circuit in State v. McElveen, 2011 WL 4486054 (La.App. 4 Cir. 2011), makes clear, the refreshing writing, recording, or object can be prepared by anyone, not just the testifing witness.
Friday, September 30, 2011
Going Unnoticed: Court Of Appeals Of Texas Finds Lack Of Notice of Character Evidence Doesn't Support Reversal
Texas Rule of Evidence 404(b) provides that
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction. (emphasis added)
Meanwhile, Article 37.07, section 3(a) of the Texas Code of Criminal Procedure provides in relevant part that
[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including...evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.
Finally, Article 37.07, section 3(g) of the Texas Code of Criminal Procedure provides that
On timely request of the defendant, notice of intent to introduce evidence under this article shall be given in the same manner required by Rule 404(b), Texas Rules of Evidence. If the attorney representing the state intends to introduce an extraneous crime or bad act that has not resulted in a final conviction in a court of record or a probated or suspended sentence, notice of that intent is reasonable only if the notice includes the date on which and the county in which the alleged crime or bad act occurred and the name of the alleged victim of the crime or bad act.
But what happens if the State violates Article 37.07, but the trial court still allows it to admit character evidence against the defendant at sentencing? That was the question addressed by the recent opinion of the Court of Appeals of Texas, Waco, in its recent opinion in Wham v. State, 2011 WL 4413745 (Tex.App.-Waco 2011).
Thursday, September 29, 2011
Unimpeachable: 7th Circuit Finds Evidence That Sauna Was Used As Place Of Prostitution Inadmissible Under Rape Shield Rule
Like all states, Wisconsin has a rape shield rule. Under Wisconsin's rule, WIS. STAT. Section 972.11(2)(b), in civil and criminal cases involving alleged sex crimes,
any evidence concerning the complaining witness's prior sexual conduct or opinions of the witness's prior sexual conduct and reputation as to prior sexual conduct shall not be admitted into evidence during the course of the hearing or trial, nor shall any reference to such conduct be made in the presence of the jury....
The general purpose of rape shield rules is two-fold: (1) preventing a defendant from presenting evidence of an alleged victim's sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with that propensity, and thus consent, at the time of the crime charge; and (2) preventing a defendant from using such evidence to prove that the alleged victim is a liar.
Rape shield rules, of course, are subject to exceptions, including an exception for when the exclusion of evidence would violate the Constitutional rights of the accused. As noted, a main purpose of rape shield rules is to prevent impeachment of alleged victims of sexual crimes. But what if the defendant wants to impeach a witness other than the alleged victim through evidence of the alleged victim's sexual behavior? That was the unique question recently addressed by the Seventh Circuit in its recent opinion in Jardine v. Dittman, 2011 WL 4056677 (7th Cir. 2011).
Wednesday, September 28, 2011
A Family Matter: Supreme Court Of Vermont Finds Inadmissible Hearsay Improperly Admitted Under Rule 703
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. (emphasis added)
As the last sentence of Rule 703 makes clear, while inadmissible evidence can sometimes form the basis for an expert witness' conclusion, that inadmissible evidence itself almost always remains inadmissible. This was a distinction recently missed by a Vermont family court as is made clear by the recent opinion of the Supreme Court of Vermont in Chickanosky v. Chicakanosky, 2011 WL 4389396 (Vt. 2011).
Tuesday, September 27, 2011
A Civil Action: 7th Circuit Finds Ohler Preservation Rule Applies In Civil As Well As Criminal Cases
When a court authorizes the impeachment of a criminal defendant, the prosecution thereafter usually cross-examines the defendant about his conviction, thereby discrediting his direct testimony. In order to reduce the sting of such cross-examinations, defense attorneys began to elicit such convictions from criminal defendants during direct examinations. This practice greatly diminished, however, in the wake of the opinion in Ohler v. United States, 529 U.S. 753 (2000), in which the Supreme Curt found that a defendant waives his objection to a court's impeachment ruling by using such a technique. So, does the same hold with prior convictions of a plaintiff in a civil trial? According to the recent opinion of the Seventh Circuit in Clarett v. Roberts, 2011 WL 4424790 (7th Cir. 2011), the answer is "yes."
Monday, September 26, 2011
I've written before (see here and here) about the terrific work being done by the National Clearinghouse for Science, Technology, and the Law (NCSTL) at the Stetson University College of Law. I now write to inform you that
Law 101: A Legal Guide for the Forensic Expert, produced by the National Clearinghouse for Science, Technology, and the Law (NCSTL) at http://www.ncstl.org, went live in August. It is free and it is located at: https://law101.dna.gov. Anyone serving as an expert witness will benefit from learning the legal procedures, expectations, and principles presented in this course. There is also a text version of the Legal Guide, which is located at: https://law101.dna.gov/rawmedia_repository/9af62ee8_fd43_4041_b977_1982154535cf?document.pdf.
I had a chance to peruse the Guide this weekend, and I can say that it is a terrific resource for not only expert witnesses and attorneys working with expert witnesses but also for professors teaching a class in Evidence.
Sunday, September 25, 2011
Call Me: 10th Circuit Finds Officer Properly Authenticated Defendant's Voice On Recorded Conversations
Federal Rule of Evidence 901(b)(5) provides that
By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:....
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
So, how well must a witness know a voice before he can authenticate it consistent with Rule 901(b)(5)? According to the recent opinion of the Tenth Circuit in United States v. McDaniel, 2011 WL 4396976 (10th Cir. 2011), the answer is "not very."