Saturday, December 3, 2011
Night Swimming: 1st Circuit Upholds Introduction Of Co-Conspirator Admission In Scheme To Swim Drugs Into Canada
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement that meets the following conditions is not hearsay:...The statement is offered against an opposing party and...was made by the party’s coconspirator during and in furtherance of the conspiracy.
So, when is a statement in furtherance of a conspiracy, and when is it mere idle chatter? That was the question addressed by the First Circuit in its recent opinion in United States v. Fogg, 2011 WL 5988232 (1st Cir. 2011).
Friday, December 2, 2011
Like many state counterparts, Federal Rule of Evidence 412(a), the Federal Rape Shield Rule, precludes the admission of evidence of an alleged victim's prior sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with that propensity, and thus consent, at the time of the crime charged. And, like many state counterparts, Federal Rule of Evidence 412(b) contains three enumerated and narrowly construed exceptions to this proscription. See, e.g., United States v. Shamsud-Din, 2011 WL 5118840 (N.D.Ill. 2011) ("The Seventh Circuit has noted that the exceptions to Rule 412 apply in 'limited circumstances.'").
As the recent opinion of the Supreme Court of Arkansas in State v. Kindall, 2011 WL 5112841 (Ark. 2011), reveals, however, Arkansas' rape shield rule contains an undifferentiated, catch-all exception. And, as the opinion also reveals, that's a dangerous thing.
Thursday, December 1, 2011
Restyled FRE 611: Maybe a Passive Court Isn’t a Bad Thing
To render the Federal Rules of Evidence more easily understandable, the Advisory Committee on Evidence Rules, at the suggestion of style consultant Joseph Kimble, sought to eliminate the passive voice from the rules throughout the restyling project. Nonetheless, two examples of the passive voice remain in revised Rule 611(b) and (c). This was no oversight.
Wednesday, November 30, 2011
it’s a pretty terrible movie, chock-full of sassy black death row inmates who call Stone’s sweet former-addict killer "girl" a lot, a weak-sauce and sentimental discussion of racial and economic disparities in the death penalty, and a lot of thick-accented callous Southern stereotypes. But it does a couple of things that I think are interesting, even if I don’t think it does them particularly well.
First is the way it addresses lingering discomfort with executing women. Sam, the head of the appeals office...;
Second, there’s the question of how race and class interact in the death penalty...;
the ridiculousness and cruelty of our last-minute appeals process.
Conversely, one of the things that the movie gets (very) wrong is that its primary focus is not on Stone's character but on the spiritual journey taken by her attorney (who comes off as the idiot younger brother of Frank Galvin from "The Verdict"), a journey that ends with "an Annie Lennox-scored trip to the Taj Mahal in her memory...." As Anthony Paul Farley wrote in Amusing Monsters, 23 Cardozo L. Rev. 1493 (2002),
In Last Dance, the conflict within the heart of the condemned murderer, played by Sharon Stone, has been resolved long before the narrative begins. The observer, a wealthy white man played by Rob Morrow, appears as a suitor in need of a philosopher, and he finds her in Stone. His desperate attempts to save her from the Leviathan's lethal injection, which she is as willing to receive as was Socrates to receive the hemlock prescribed him by his fellow Athenians, fail. In his failure, however, he succeeds in making peace with himself and, as we are led to imagine, his own struggle on behalf of forgiveness and against vengeance. Our own role, Leviathan's role, in producing the conditions that lead to the body of the death that occasioned the making of the film and our own entry into the dark of the cathedral, the theatre, is never seriously addressed.
So, why does this make me think about Governor John Kitzhaber's decision to place a moratorium on the death penalty in Oregon?
Tuesday, November 29, 2011
Sacred Formatting: Why the Advisory Committee Chose Not to Reformat Rule 803
In restyling the Federal Rules of Evidence, the Advisory Committee on Evidence Rules resolved to amend the rules to make them more easily understandable and to achieve consistency in style and terminology. The Committee aimed to achieve uniformity in formatting across all the rules of practice and procedure. To accomplish this, they applied a familiar outlining format including progressively indented subparagraphs, hanging indents, and substituting vertical lists for horizontal lists. Formatting revisions of this type abound in Rule 801.
Monday, November 28, 2011
Back in March, I posted an entry about Katharine Traylor Schaffzin and her terrific article, Out with the Old: An Argument for Restyling Archaic 'Sacred Phrases' Retained in the Proposed Amendments to the Federal Rules of Evidence, 77 Tenn. L. Rev. 849 (2000). Professor Schaffzin's article dealt with the new restyled Federal Rules of Evidence set to take effect on December 1, 2011. At the time, I promised that Professor Schaffzin would have a few guest posts on the new Rules around the time that they took effect. Below is the first of these guest posts:
Sunday, November 27, 2011
Give It A Shot: Northern District Of Texas Finds Printout Of Screen Shot Satisfies Best Evidence Rule
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 litigant takes a screen shot of a web page, prints out the screen shot, and then seeks to introduce the printout into evidence. Does the printout satisfy the Best Evidence Rule? According to the recent opinion of the United States District Court for the Northern District of Texas in Conceal City, L.L.C. v. Looper Law Enforcement, LLC, 2011 WL 5557421 (N.D.Tex. 2011), the answer is "yes."