EvidenceProf Blog

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

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Saturday, November 5, 2011

Adoption Stories, Take 3: Rule 806 And Why Adoptive Admissions Are Different From Other Admissions

Yesterday's post was the second in a series of four posts dealing with adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) based upon the following fact pattern:

When Husband H confesses to Wife W that he had an affair with another woman, W is speechless. Now W is on trial for murdering the other woman. The prosecution calls H to testify to his admission of adultery.  W objects.

In my first post, I claimed that this statement shouldn't qualify as an adoptive admission admissible against Wife because it was not accusatory toward her. In my second post, I argued that this post shouldn't qualify as an adoptive admission admissible against Wife unless the prosecution could prove that Wife had personal knowledge of the affair before Husband made his statement. And I made the argument despite the fact that personal knowledge is not a prerequiste for the introduction of admissions under Federal Rule of Evidence 801(d)(2)(A) and Federal Rules of Evidence 801(d)(2)(C)-(E). So, what's my justification for treating Rule 801(d)(2)(B) differently? Rightfully or wrongfully, the Federal Rules of Evidence treat Rule 801(d)(2)(B) differently, and I would argue wrongfully.

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

Friday, November 4, 2011

Adoption Stories, Take 2: Why I Think There Should Be A Personal Knowledge Requirement For Adoptive Admissions

Yesterday's post was the first in a series of four posts dealing with adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) based upon the following fact pattern:

When Husband H confesses to Wife W that he had an affair with another woman, W is speechless. Now W is on trial for murdering the other woman. The prosecution calls H to testify to his admission of adultery.  W objects.

As I noted yesterday, the first problem with the prosecution trying to admit Husband's statement as an adoptive admission under Rule 801(d)(2)(B) to prove that Husband was in fact having an affair (the statement would be admissible to prove its effect on the listener) is the statement is not accusatory with regard to Wife. It doesn't accuse her of anything and thus could not qualify as an adoptive admission. The second potential problem for the prosecution would or at least should (in my view) be Wife's apparent lack of personal knowledge of the affair.

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

Thursday, November 3, 2011

Adoption Stories: Can A Husband's Admission Of An Affair Be Used As An Adoptive Admission Against His Wife?

Yesterday on the Evidence Professor Listserv, Professor David H. Kaye asked the following interesting question:

When Husband H confesses to Wife W that he had an affair with another woman, W is speechless. Now W is on trial for murdering the other woman. The prosecution calls H to testify to his admission of adultery.  W objects.

The obvious response is that the statement is not hearsay because it is introduced only to show its effect on the hearer, giving her a motive for the murder regardless of whether H's statement was true. But is the following argument also valid: Although W said nothing, she looked shocked and sad. In this way, "the party manifested that it...believed [H's statement] to be true"? FRE 801(d)(2)(B)

On the one hand, silence is not usually a statement unless the circumstances are such that the party would be expected to contradict the speaker. On the other hand, this is not a statement that accuses the party of anything. Is W's silence in this context, or at least her facial expressions, enough to manifest her belief?

Professor Kaye's question raises four separate issues connected to adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) that I will address over the next four days.

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November 3, 2011 | Permalink | Comments (1) | TrackBack (0)

Wednesday, November 2, 2011

Terror Alert: 11th Circuit Finds Special Agent's Testimony Navigated Fine Line, Didn't Violate Rule 704(b)

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Here are three examples of testimony by a Special Agent at a defendant's trial for terrorism-related crimes. Does this testimony violate Rule 704(b)?:

Example 1:

Q: Now, at the end of the clip...when Elie Assaad says, "What’s your plan?" and Batiste says, "To build Islam Army" and then further down, "an Islamic Army for Islamic jihad," what effect did that have on this investigation?

A. The effect that it had was it further established what Batiste’s intentions were, which was to build an organization by recruiting members from the local community and determining which of those members would be trusted with the ultimate objectives, which was to—which was advocating the overthrow of the United States Government and waging some kind of war in the streets.

Example 2:

Q: Agent Velazquez, at the beginning of this clip, where Narseal Batiste says, “It has to be more than just a bombing. It has to be a real ground war ‘cause somehow or other you got to get the civilians, you have to get the people involved, make them go crazy,” what effect did that statement have on your investigation, if any?

A: It basically established that Batiste is laying out his business model for what his intentions and the ultimate intentions of his organization are, which is the overthrow of  the U.S. Government by creating a civil war, if you will, [by] creating chaos and confusion in the streets.

Example 3:

Q: What effect did this list, requesting these types of weapons, have on your investigation?

A: It further established that we needed to continue validating information we were receiving, as we did with the follow-up of the items on the list, and gather more information on other members of Batiste’s organization and the extent to which he had access to other parts of the country and other people.

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

Tuesday, November 1, 2011

The Oh In Ohio: Court Of Appeals Of Ohio Shockingly Concludes Rape Shield Rule Doesn’t Cover Nonconsensual Sexual Activity

We disagree with Michael to the extent that it stands for the proposition that the rape shield law has any application to prior sexual abuse suffered by a child victim. In construing the rape shield statute, "our paramount concern is the legislative intent" in enacting it....To discern this intent, we must "read words and phrases in context according to the rules of grammar and common usage."...Ohio's rape shield law prohibits evidence of "specific instances of the victim's sexual activity" unless one of four exceptions applies. The statute's reference to "specific instances of the victim's sexual activity" connotes volitional activity by the victim with another and not involuntary activity such as that which would stem from being subjected to sexual abuse. State v. Stoffer, 2011 WL 4579182 (Ohio App. 7 Dist. 2011).

In my research on rape shield rules from across the country, this is the first example that I could find in which a court categorically concluded that a rape shield rule does not preclude the admission of evidence of other acts of child sexual abuse committed against the alleged victim. Moreover, this quote strongly implies that the Court of Appeals of Ohio, Seventh District would find that the rape shield rule also does not preclude the admission of evidence of other rapes or sexual assaults committed against an allegedadult victim, a reading borne out by this later passage in the court's opinion:

[W]e construe that the legislative intent of Ohio's rape shield law was to address only past consensual sexual activity of the victim and not prior sexual abuse suffered by the victim.

In this post, I will explain why I think that Stoffer is not only horribly misguided but also dangerous.

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November 1, 2011 | Permalink | Comments (1) | TrackBack (0)

Finding Evidence on Facebook

I blogged earlier about looming questions on the evidence horizon as to the admissibility of electronic communications on social networking sites like Facebook.  In my last guest post (thanks again Colin!), I wanted to briefly touch on a precursor to that question – the ability of litigants to get at social media information, and particularly information stored on Facebook.  One of the most important rules of Evidence is that if you don’t have it, it is not admissible.  See A Few Good Men (1992) (Tom Cruise explains:  “It doesn't matter what I believe. It only matters what I can prove!")

Litigants are increasingly recognizing Facebook as a valuable source of evidence.  But how do you get at that evidence?  There are three obvious approaches: 

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November 1, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, October 31, 2011

EvidenceProf Blog's 5th Annual Halloween Movie Pick: Takashi Shimizu's "The Grudge"

It's Halloween again, which means that it's time for EvidenceProf's Blog's fifth annual Halloween movie pick (after "The Gift," "Homecoming," "Henry: Portrait of a Serial Killer," and "The Spiral Staircase."). For this year's pick, I'm once again digging into the archives from my days reviewing DVDs and pulling out a review. Ths year's pick is the director cut of "The Grudge," Takashi Shimizu's English-language remake of "Ju-On." 

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October 31, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 30, 2011

Forward Bias: Middle District Of Alabama Applies Rule 613(b) To Extrinsic Evidence Of Bias

Federal Rule of Evidence 613 provides that

(a) Examining witness concerning prior statement.

In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness.

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

So, under Rule 613(b), extrinsic evidence of a witness' prior inconsistent statement is only admissible if "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." So, does the same hold with regard to extrinsic evidence of a witness' bias? According to the recent opinion of the United States District Court for the Middle District of Alabama in Johnson v. Alabama Community College System, 2011 WL 5078776 (M.D.Ala. 2011), the answer is "yes."

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October 30, 2011 | Permalink | Comments (1) | TrackBack (0)