Saturday, November 12, 2011
Federal Rule of Evidence 1002, the Best Evidence Rule, provides that
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
So, let's say that a debtor in a bankruptcy action testifies that she never made a contribution to an IRA and produces account statements for that IRA that cover a certain stretch of time but does not produce statements that cover another stretch of time. Does the testimony violate the Best Evidence Rule? According to the recent opinion of the United States Bankruptcy Court for the District of Massachusetts in In re LeClair, 2011 WL 5282605 (Bkrtcy.D.Mass. 2011), the answer is "no."
Friday, November 11, 2011
The Prisoner: United States District Court for the District Of Idaho Refuses To Appoint Expert In Prisoner Case
Federal Rule of Evidence 706(a) provides that
The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
The word "may" is the key word in this Rule as courts are under no obligation to appoint experts except in some cases involving scientific evidence or complex issues. So, if a prisoner sues a correctional facility, claiming that its officials were deliberately indifferent to his serious medical needs, does the court need to appoint an expert under Rule 706(a)? According to the recent opinion of the United States District Court for the District of Idaho in Orr v. Valdez, 2011 WL 4239223 (D.Idaho 2011), the answer is "no."
Thursday, November 10, 2011
Federal Rule of Evidence 606(b) provides that
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
Many (myself included) have tried to argue that there should be an exception to Rule 606(b), whether constitutional or otherwise, in cases of jurors expressing racial, religious, or other bias during deliberations. Advocates, however, usually run into a brick wall. That wall? Justice O'Connor's opinion in Tanner v. United States, 483 U.S. 107 (1987). Tanner is the paradigmatic case of jurors gone wild: Jurors got drunk during the deliberations. They used drugs. They sold drugs. They slept. And they couldn't testify to any of it after the verdict was entered pursuant to Rule 606(b).
protected by several aspects of the trial process. The suitability of an individual for the responsibility of jury service, of course, is examined during voir dire. Moreover, during the trial the jury is observable by the court, by counsel, and by court personnel....Moreover, jurors are observable by each other, and may report inappropriate juror behavior to the court before they render a verdict....Finally, after the trial a party may seek to impeach the verdict by nonjuror evidence of misconduct.
Jessica West, a Visiting Researcher at Yale Law School, uses Justice O'Connor's retort as the launching point for her terrific recent article, 12 Racist Men: Post-Verdict Evidence of Juror Bias, 27 Harv. J. on Racial & Ethnic Just. 165 (2011) (forthcoming). West's objective is two-fold: She seeks to reveal why the mechanisms listed by Justice O'Connor are currently inadequate and explain how they can be recalibrated to achieve front-end justice given that Tanner seems to preclude peering behind the curtain on deliberations after a verdict has been entered. Or, as she describes it, while the mechanisms listed by Justice O'Connor
contain the potential to preempt many instances of juror bias or misconduct, these mechanisms have failed to deliver on the promise of providing adequate protections from racial bias in the deliberative process. As a result, claims of deliberative bias have proliferated while courts and litigants have struggled with the limitations imposed by Rule 606(b). Rather than discard the evidentiary rule, however, another possibility is to address the deficiencies in the pre-deliberative process, in an effort to achieve the promise set out in Tanner.
Wednesday, November 9, 2011
Today, Alyssa Rosenberg at ThinkProgress posted her third entry in The Pop Culture and the Death Penalty Project. Her post deals with John Grisham's "The Confession." I haven't had the chance to read "The Confession" yet, but it deals with a topic of significant interest to me: What happens when a man sits on death row and another man confesses that he committed the subject crime by himself? This topic, and specifically the Alton Logan case, led to me writing Ordeal by Innocence: Why There Should Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality, 102 NW. U. L. REV. COLLOQUY 391 (2008).
"The Confession" won the Harper Lee Prize for Legal Fiction, and I bet it's a good novel. In my opinion, though, Grisham's best piece of writing is actually a nonfiction book covering similar territory: "The Innocent Man: Murder and Injustice in a Small Town." The book tells the story of Ron Williamson, a former minor leaguer wrongfully convicted of the rape and murder of Debra Sue "Debbie" Carter. You can read Williamson's Innocence Project "baseball card" by clicking here. Also, I'm not sure about its current status, but I know that Grisham at one point was attached to write a screenplay about the "Norfolk Four," four men also wrongfully convicted of a rape/murder. The "Norfolk Four" might not have gotten as much attention as the "West Memphis Three," but the injustice was no less extreme, and I was disheartened to her that the Supreme Court of Virginia recently rejected appeals from three of the four men to have their convictions overturned (I was living in Norfolk's neighbor, Virginia Beach, during the summer of 1997 when the rape/murder occurred and remember the case seeming fishy from the start).
Tuesday, November 8, 2011
Adoption Stories, Take 5: 5th Circuit Finds Phone Bill Qualified As Business Record, Adoptive Admission
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth....
So, can a phone bill qualify as an adoptive admission? The usual answer would be "no," with such a bill usually being admissible as a business record under Federal Rule of Evidence 803(6). Under the odd circumstances in United States v. Beasley, 2011 WL 5103324 (5th Cir. 2011), the answer is "yes."
Monday, November 7, 2011
Confidence Testing: The Good Wife Episodes Raises Two Interesting Questions About Duty Of Confidentiality
Last night's episode of "The Good Wife," "Executive Order 13224" was probably the best of the season. It had an interesting A story (client-of-the-week): Alicia and company represent a former translator for a military contractor in Afghanistan who is suing the federal government for false imprisonment and torture. It also had a solid B story: Peter uses smarm-king Cary to go after Will under the guise of taking down the firm's Stringer Bell-ish client, Lamond Bishop.
The show deftly unpacked the concept of the deposition dump for viewers (and no doubt caused night terrors for any viewers who have ever done document review). There was a delciously awful sexual harassment industrial video that capped the episode. There was the return of Elsbeth Tascioni, possibly the funniest lawyer in TV history, played with scatterbrained verve by Carrie Preston ("True Blood"). And, best of all, there was no dancing tutor.
What the show did have, though, were two situations in which there were alleged exceptions to an attorney's duty of confidentiality. What were they?
Sunday, November 6, 2011
Adoption Stories, Take 4: Why Adoptive Admissions Should Be Governed By Standards Governing Statements Against Interest
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. In my third post, I contended that it makes sense to treat adoptive admissions differently from other admissions under Rule 801(d)(2) because the Federal Rules of Evidence treat them differently under Federal Rule of Evidence 806. Today's post takes this argument to its logical conclusion: The standards governing adoptive admissions under Federal Rule of Evidence 801(d)(2)(B) should be the standards governing statements against interest under Federal Rule of Evidence 804(b)(3), not the standards governing other admissions under Rule 801(d)(2).