EvidenceProf Blog

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

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Saturday, October 8, 2011

The Other Blue Book, Take 2: AZ Court Finds Trial Court Erred In Deeming Blue Book Evidence Inadmissible

Like its federal counterpart, Arizona Rule of Evidence 803(17) provides an exception to the rule against hearsay for 

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

So, are portions of the Kelley Blue Book admissible under Rule 803(17)? According to the recent opinion of the Court of Appeals of Arizona,Division 1, Department A, in Colvin v. Ameri-National Corp., 2011 WL 4575607 (Ariz.App. Div. 1 2011), the answer is "yes."

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October 8, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, October 7, 2011

Reelin' In The Years: NJ Case Reveals The State Has No Counterpart To Rule 609(b)

Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

And, according to the Advisory Committee's Note to the Rule

Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.

The New Jersey Rules of Evidence, however, do not have a counterpart to Federal Rule of Evidence 609(b); instead, New Jersey Rule of Evidence 609 generally provides that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

So, is a 12 year-old conviction too remote under New Jersey Rule of Evidence 609? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Joseph, 2011 WL 4577401 (N.J.Super.A.D. 2011), the answer is "no" (or at least "not necessarily").

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October 7, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 6, 2011

Defusing Confrontation: Supreme Judicial Court Of Massachusetts Applies Bryant To Find No Confrontation Clause Violation

Back in February, the Supreme Court decided Michigan v. Bryant, its latest Confrontation Clause case decided in the wake of its landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004). Part of what the Court did in Bryant was to flesh out a dichotomy it created in Davis v. Washington, 547 U.S. 813 (2004). In Crawford, the Court in effect held

that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant

Thereafter, in Davis, the Court concluded that

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose  of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

In Bryant, the Court thereafter laid out a nonexhaustive list of circumstances to consider when determining whether an ongoing emergency exists, rendering the declarant's statement nontestimonial. So, what will courts do with these factors? The recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Smith, 2011 Wl 3505497 (Mass. 2011), might provide a pretty good indication.

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October 6, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 5, 2011

Tough Guise: Court Of Criminal Appeals Of Alabama Seemingly Errs In Rule 607 Appeal

Like its federal counterpart, Alabama Rule of Evidence 607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

That said, Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible. And yet despite citing this principle, the Court of Criminal Appeals of Alabama found no problem with exactly this type of subterfuge in its recent opinion in Trawick v. State, 2011 WL 4511235 (Ala.Crim.App. 2011).

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October 5, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 4, 2011

In Rebuttal: 2nd Circuit Finds Rebuttal Waiver Triggered In American Airlines/Cocaine Case

Federal Rule of Evidence 410 states that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). Thereafter, every court that has addressed the issue has found that a prosecutor can force a defendant to sign a "rebuttal waiver" to get to the plea bargaining table, pursuant to which a the proseuctor can introduce the defendant's statements during plea discussions if the defendant presents any contradictory evidence, testimony, or arguments at trial. But when is such a waiver triggere? That was the question addressed by the recent opinion of the Second Circuit in United States v. Roberts, 2011 WL 4489813 (2nd Cir. 2011).

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October 4, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, October 3, 2011

More on the Future of Present Sense Impressions

I previously blogged about the challenges presented to the present sense impression hearsay exception by new methods of electronic communication.  The exception is also under siege on another front – from the increased use of recording devices by police departments.  With the inevitable march of technology, once can imagine a time when everything a police officer observes and says while on duty will be recorded.  Fans of the movie Aliens can think of the space marines who blast their way into the Aliens’ den while feeding live video and audio to a command post (staffed by Paul Reiser!?!).

An inevitable evidentiary issue that arises from such a possibility is what to do with the recorded officer’s own narrative description of the things he or she perceives.  An interesting preview of the courts’ answer can be found in the Texas case of Fischer v. State, 252 S.W.3d 375 (2008).  There, the Texas Court of Criminal Appeals rejected the prosecution’s effort to introduce an officer’s recorded real-time narration of a DWI stop.  Over a vigorous dissent, the Court struggled to explain why the officer’s statements, such as that he smelled “the strong odor of alcoholic beverage” on the suspect’s breath, did not fall within the present sense impression exception.  Id. at 376-77.

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

Disinterested: Supreme Court Of New Hampshire Finds Hearsay Error Of Trial Court Harmless In Murder Appeal

Similar to its its federal counterpart, New Hampshire Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in this position would not have made the statement unless the person believed it to be true....

As the recent opinion of the Supreme Court of New Hampshire in State v. Garcia, 2011 WL 4397490 (N.H. 2011), makes clear, however, if a trial court improperly precludes a defendant from presenting a statement against interest by another declarant that also implicates the defendant in the crime charged, an appellate court is likely to find harmless error.

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

Sunday, October 2, 2011

Waive Goodbye: Alabama Court Of Criminal Appeals Finds Defendant Can Waive Statutory Right To Credit For Time Served

Federal Rule of Evidence 410 states that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). So, does this mean that prosecutors can get defendants to waive other rules/protections to get to the plea bargaining table? Could a prosecutor get a defendant to waive the ban on the admission of propensity character evidence to get to the plea bargaining table? The rule against hearsay? The recent opinion of the Alabama Court of Criminal Appeals in Lay v. State, 2011 WL 4511228 (Ala.Crim.App. 2011), implies that the answer is "yes."

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