Saturday, October 15, 2011
The Number 23: Eastern District Of Virginia Finds 23 Year-Old Conviction Admissible To Impeach Plaintiff
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.
Furthermore, the Advisory Committee's Note to Rule 609(b) provides that
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.
In its recent opinion in Salmons, Inc. v. First Citizens Bank & Trust Co., 2011 WL 4828838 (E.D.Va. 2011), the United States District Court for the Eastern District of Virginia found that the defendant could use the plaintiff's 23 year-old criminal fraud conviction to impeach him. So, what were the exceptional circumstances?
Friday, October 14, 2011
In Context: 5th Circuit Finds Specific Ground For Rule 404(b) Objection Was Apparent From The Context
Federal Rule of Evidence 103(a)(1) provides that
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and...[i]n case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context....
You don't find many cases in which an appellate court finds that the specific ground of an objection is "apparent from the context...." The recent opinion of the Fifth Circuit in United States v. Mireles, 2011 WL 4584763 (5th Cir. 2011), is an exception.
Thursday, October 13, 2011
Georgia On My Mind: Supreme Court Of Georgia Looks To New Georgia Rules Of Evidence For Prior Consistent Statement Ruling
As I have previously noted, Georgia recently passed a Comprehensive Revised Evidence Code patterned on the Federal Rules of Evidence. This new Code will not take effect until 2013, but, as the recent opinion of the Supreme Court of Georgia in Stephens v. State, 2011 WL 4532671 (Ga. 2011), makes clear, this new Code is already having an effect on how Georgia courts interpret the existing Georgia Rules of Evidence.
Wednesday, October 12, 2011
Anything Resembling Furtherance?: Court Of Appeals Of Iowa Finds Trial Court Erred In Admitting Co-Conspirator Admissions
The statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
As the language of the Rule makes clear, it is not enough for a statement to be made during the course of a conspiracy. Instead, for a statement to qualify as a co-conspirator admission, the statement must have been made during the course of and in furtherance of the conspiracy. And this latter fact was something that the prosecution did not sufficiently in State v. Dayton, 2011 WL 4578505 (Iowa App. 2011), according to the recent opinion of the Court of Appeals of Iowa.
Tuesday, October 11, 2011
The New SCOTUSblog "Community" Feature & Florence v. Board of Chosen Freeholders of Burlington County, et al.
SCOTUSblog recently launched a cool new online "community" feature where folks can join up and discuss key issues having to do with the Supreme Court (http://www.scotusblog.com/community). Today's discussion centered around the upcoming case of Florence v. Board of Chosen Freeholders of Burlington County, et al., which deals with the question of whether the government can conduct suspcionless strip searches of every person admitted to jail. The entire discussion can be found here. Below is the comment that I contrbibuted:
If a man's home is his castle and a man's body is his temple, then perhaps the Supreme Court should consider its opinion in Buie v. Maryland, 494 U.S. 325 (1990), in deciding whether the government can conduct suspiconless strip searches of every person admitted to jail. In Buie, the Supreme Court held that as an incident to a lawful home arrest, police officers can, "as a precautionary matter and without probable cause or reasonable suspicion, look in closets and other spaces immediately adjoining the place of arrest from which an attack could be immediately launched." The Court cautioned, however, that for officers to conduct a "protective sweep" beyond these spaces, "there must be articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene."
An analogy can be drawn to station house searches of arrestees. Pursuant to Illinois v. Lafayette, 462 U.S. 640 (1983), as an incident to the lawful booking and jailing of a suspect, police officers can, as a precautionary matter and without probable cause or reasonable suspicion, conduct an inventory or booking search. If, however, officers want to further invade the privacy of the arrestee and search the recesses of his body, then, like officers seeking to search the recesses of an arrestee's home during a protective sweep, there must be at least reasonable suspicion. Indeed, this was the precise argument made by the Eleventh Circuit in Evans v. Stephens, 407 F.3d 1272 (11th Cir. 2005). According to the Eleventh Circuit, "[w]hen we balance the need for investigative strip searches for evidence that might be hidden on the arrestee's body against the intrusiveness inherent in a strip search, we believe Buie, 494 U.S.at 325...provides the analytical framework that, at a minimum, would apply to strip searches for evidence." And, under that framework, "an officer must have at least a reasonable suspicion that the strip search is necessary for evidentiary reasons."
I previously blogged (here) about the courts’ flawed application of federal evidence rule 609 (and state variants) – a rule that purports to restrict impeachment of testifying criminal defendants with past crimes.
The courts’ failure to meaningfully restrict this type of impeachment is significant in numerous ways, but perhaps the most compelling is its effect on innocent defendants. Professor John Blume’s fascinating empirical study of defendants cleared through post-conviction DNA testing provides powerful empirical evidence to support the widespread intuition that prior conviction impeachment stops even innocent defendants from testifying. See John Blume, The Dilemma of the Criminal Defendant with a Prior Record - Lessons from the Wrongfully Convicted, Journal of Empirical Legal Studies (2008) (concluding that “the current legal regime discourages defendants, even factually innocent defendants from telling their story at trial”) (available here).
One can imagine jurors in the cases Prof. Blume studied wondering why an innocent defendant would not testify, and proclaim his or her innocence to the jury. Well, as Professor Blume found, the likelihood of impeachment with prior convictions – something the jury will rarely contemplate – is often the answer.
Monday, October 10, 2011
Murder For Hire: 6th Circuit Finds Statements Made After Murder In Murder For Hire Qualify As Co-Conspirator Admissions
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.
If a defendant is charged with conspiracy to commit murder, the conspiracy typically ends with the murder (or its immediate aftermath), meaning that later statements cannot qualify as co-conspirator admissions because they were not made during the course of the conspiracy. But if the defendant is charged with conspiracy to commit murder for hire...well, then you have a case like United States v. Johnson, 2011 WL 4585234 (6th Cir. 2011).
Sunday, October 9, 2011
That's Ancient History: Court Of Appeals Of Kentucky Finds Old Newspaper Articles Admissible As Ancient Documents
Statements in a document in existence twenty (20) years or more the authenticity of which is established.
And, as the recent opinion of the Court of Appeals of Kentucky in Rehm v. Ford Motor Co., 2011 WL 4632924 (Ky.App. 2011), makes clear, if you are seeking to admit newspaper articles that are 20 years old or older, Rule 803(16) is your go-to rule.