EvidenceProf Blog

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

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Saturday, October 22, 2011

Can I Get A Summary?: 1st Circuit Finds No Obligation To Produce Summaries Before Trial Under Rule 1006

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.

So, the proponent of a summary under Rule 1006 must make the originals or duplicates that are summarized available for examination and/or copying by other parties at a reasonable place and time. But what about the summary itself? Mist that also be made available? According to the recent opinion of the First Circuit in Colon-Fontanez v. Municipality of San Juan, 2011 WL 4823189 (1st Cir. 2011), the answer is "no." I disagree.

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

Friday, October 21, 2011

The Hound Baskerville: 3rd Circuit Finds District Court Didn't Err In Failing To Hold Forfeiture By Wrongdoing Hearing

Federa Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for 

A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

So, let's say that the prosecution files a motion in limine seeking to introduce statements under this forfeiture by wrongdoing exception. Does the trial court need to hold a pretrial evidentiary hearing before it deems the statements admissible? According to the recent opinion of the Third Circuit in United States v. Baskerville, 2011 WL 4850257 (3rd Cir. 2011), the answer is "no."

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

Thursday, October 20, 2011

Law & Crit: Alyssa Rosenberg's Pop Culture and the Death Penalty Project

Alyssa Rosenberg is one of my favorite writers on the internet because she writes about two of my passions -- politics and pop culture -- in an idiosyncratic but accessible way. You can find some of her pieces in The Atlantic, but in the post I want to focus upon her work at ThinkProgress, and specifically her new Pop Culture and the Death Penalty Project. Basically, in the shadow of the Troy Davis execution, Rosenberg decided to "to pay some serious attention to the death penalty in popular culture." And her attention will consist of weekly blog posts on a series of books, movies, and TV shows that could provide serious fodder for a "Law & Film" or "Law & Literature" seminar.

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

Wednesday, October 19, 2011

Gross Out, Take 2: Texas Also Allows Experts To Testify About Defendant Doctors' Gross Negligence

In a post a couple of days ago, I noted that expert testimony that Dr. Conrad Murray acted with "gross negligence" was likely proper under California law even though it would be improper under the law of many (most?) other jurisdictions. After some further, research, I uncovered a Supreme Court of Texas opinion revealing that the such testimony would also be admissible under Texas law.

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

Tuesday, October 18, 2011

Wild West Virginia: SD WVa Deems Child Molestation Conviction Inadmissible Under Rule 609(a)(1)

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....

So, let's say that a plaintiff brings tort and constitutional claims against defendants. And let's say that the plaintiff has a prior child molestation conviction. Should the defendants be able to use evidence of that conviction to impeach the plaintiff? According to the recent opinion of the United States District Court for the Southern District of West Virginia in Merritt v. Matheny, 2011 WL 4833043 (S.D.W.Va. 2011), the answer is "no."

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

Monday, October 17, 2011

Gross Out?: Was Expert Testimony That Conrad Murray Acted With "Gross Negligence" Objectionable?

Professor David H. Kaye at Penn State has posted Some clips from the Conrad Murray trial and asked whether testimony by experts that Dr. Murray's acts/omissions constituted "gross negligence" would have been ruled inadmissible if defense counsel objected to it. My conclusion: While the answer would be "yes" in many (most?) jurisdictions, the answer is "no" in California.

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October 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 16, 2011

Don't Be Tardy: Western District Of Michigan Finds State Court Properly Deemed Witness For Prosecution "Unavailable"

Federal Rule of Evidence 804(a)(5) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means.

Meanwhile, Michigan Rule of Evidence 804(a) provides that a declarant is "unavailable" if he

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown. (emphasis added)

So, when are attempts to procure a declarant's attendance reasonable but not an exercise in due dilligence? That question was not answered by the United States District Court for the Western District of Michigan in its recent opinion in Smith v. McQuiggin, 2011 WL 4824492 (W.D.Mich. 2011), but it does point us toward a partial answer.

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October 16, 2011 | Permalink | Comments (0) | TrackBack (0)