EvidenceProf Blog

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

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Saturday, November 19, 2011

Things We Lost In The Fire: NY Opinion Reveals That The State Bars Evidence Of Subsequent Remedial Measures

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

And while New York doesn't have codified rules of evidence, the recent opinion of the Supreme Court of New York, Appellate Division, First Department in Stolowski v. 234 East 178th Street LLC, 2011 WL 5527716 (N.Y.A.D. 1 Dept. 2011), makes clear that the state similarly deems evidence of subsequent remedial measures inadmissible subject to certain exceptions.

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

Friday, November 18, 2011

Book 'Em Danno, Take 2: Court Of Appeals Of Colorado Finds Rule 803(8)(B) Doesn't Bar Admission Of Booking Reports

Similar to its federal counterpartColorado Rule of Evidence 803(8) provides an exception to the rule against hearsay for

(8) Public records and reports. Unless the sources of information or other circumstances indicate lack of trustworthiness, records, reports, statements, or date compilations in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law.

So, let's say that the prosecution wants to introduce booking reports and a mittimus against a defendant. Are these documents admissible under Colorado Rule of Evidence 803(8)(A) or are they inadmissible under Colorado Rule of Evidence 803(8)(B)? According to the recent opinion of the Colorado Court of Appeals of Colorado, Div. VI in People v. Warrick, 2011 WL 5089464 (Colo.App. 2011), they're admissible.

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

Thursday, November 17, 2011

Where There's Smoke: Will Evidence Of Other Acts Of Child Molestation Be Admissible Against Jerry Sandusky?

An e-mail on the Evidence Professor listserv yesterday raised an interesting question: When former Penn State assistant football coach Jerry Sandusky is tried criminally and likely civilly for acts of child molestation, will evidence of uncharged/other acts of child molestation be admissible under the Pennsylvania Rules of Evidence? I think that the answer is likely "yes," but the question of admissibility won't be as easy as it is under the Federal Rules of Evidence and many other state evidentiary codes.

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November 17, 2011 | Permalink | Comments (3) | TrackBack (0)

Wednesday, November 16, 2011

Law & Crit, Take 4: Patty Jenkins' "Monster" And The "Monster" In All Of Us

I'm working with a couple of high school students on a project related to the insanity defense, and today I gave them Russell D. Covey's terrific new article, Temporary Insanity: The Strange Life and Times of the Perfect Defense to read. The focus of their project is on how mental disorders truly impact people and their judgment and under what circumstances a defendant should be found not guilty by reason of insanity. Based upon Professor Covey's article, we had an interesting discussion about how the legal system should treat those claiming insanity and how it should treat those claiming temporary insanity. 

In a certain sense, it seems easier for judges or jurors to put themselves into the shoes of a person pleading temporary insanity. Sure, the judge/juror might never have been molested as a child, but if one of the children allegedly molested by Jerry Sandusky killed him and claimed temporary insanity, it wouldn't be too difficult for the judge/juror to intuit what was basically going through the defendant's head even if the judge/juror could never truly grasp the depth and the breadth of the psychological damage done (more on this case tomorrow). And a judge/juror may never have fought in a war, but if a recent veteran charged with murder claims temporary insanity/PTSD, that judge/juror probably has a sense that war is hell (on the soldier), even if the magnitude of the soldier's suffering cannot be fully grasped. Conversely, unless a judge/juror has a history of schizophrenia, borderline personality disorder, etc. in his family, he likely has no idea what was going through the head of a defendant claiming a traditional insanity defense based upon one of these conditions.

This, of course, is not a problem unique to the insanity defense. To serve as a juror in a capital case, you must be death-qualified. But being death-qualified doesn't mean that you need any special education, training, or experience to decide between life (in prison) and death; it simply means that you must be willing to impose the death penalty based upon balancing aggravating and mitigating factors. Let's say that you're a capital juror and the defendant/murder was physically abused as a child. Let's say that she was raped. If you haven't suffered from a history or violence, would you have the ability to get inside the head of the defendant, to decide whether her life should be spared? 

This leads me to Alyssa Rosenberg's post today in her Pop Culture and the Death Penalty Project, which deals with Patty Jenkins' "Monster."

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

Tuesday, November 15, 2011

A Picture Is Worth A Thousand Words: Court Of Appeals Of Iowa Fails To Resolve Whether Facebook Photos Trigger Rape Shield Rule Analysis

Similar to its federal counterpartIowa Rule of Evidence 5.412a, Iowa's rape shield rule,

Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual abuse is not admissible.

A grandfather is charged with sexual crimes against his granddaughter based upon acts committed starting in 2004 when she was 8 years-old. At trial, the grandfather wants to introduce into evidence three photographs posted to a Facebook page in 2010 depicting: (1) the alleged victim holding several condoms and her mother standing behind her; (2) the alleged victim inflating a condom like a balloon; and (3) the alleged victim's mother making a gesture with her hand/face that could be interpreted as a sexual gesture. Do these photographs depict "sexual behavior," rendering them inadmissible under the rape shield rule? That was a question that the Court of Appeals of Iowa didn't (have to) answer in its recent opinion in State v. Parker, 2011 WL 5387212 (Iowa App. 2011).

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November 15, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, November 14, 2011

The Areas of My Expertise: Court Of Appeals Of Texas Finds Rule 702 Objection Didn't Preserve Rule 701 Issue

Texas Rule of Evidence 701 provides that

If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue.

Meanwhile, Texas Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Finally, Texas 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

(1) Objection. In 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. When the court hears objections to offered evidence out of the presence of the jury and rules that such evidence be admitted, such objections shall be deemed to apply to such evidence when it is admitted before the jury without the necessity of repeating those objections.

So, let's say that a defendant objects that a police officer's opinion testimony is inadmissible because he was not an expert witness under Rule 702. And let's say that the court's response is that the police officer could offer lay opinion testimony under Rule 701. Has the defendant preserved the issue of the admissibility of the officer's testimony under Rule 701? According to the recent opinion of the Court of Appeals of Texas, Waco, in State v. Simmons, 2011 WL 5247891 (Tex.App.-Waco 2011), the answer is "no." I disagree.

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November 14, 2011 | Permalink | Comments (1) | TrackBack (0)

Sunday, November 13, 2011

Come Be My Conspiracy: Does The Co-Conspirator Admission Rule Only Cover The Charged Conspiracy?

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.

So, under this co-conspirator admission rule, is a co-conspirator's statement only admissible against a defendant if the statement was made during the course and in furtherance of the conspiracy charged in the indictment, or can a co-conspirator admission made during a different conspiracy also be admissible? This was a question that the Fourth Circuit didn't quite have to answer in its recent opinion in United States v. Medford, 2011 WL 5317751 (4th Cir. 2011), but it seems that there is no "same conspiracy" requirement under Rule 801(d)(2)(E).

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November 13, 2011 | Permalink | Comments (0) | TrackBack (0)