Saturday, December 10, 2011
Something Old, Something New: Court Of Appeals Of Texas Opinion Reveals Differences Between Texas & FRE 609(b)
Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.
But, as the recent opinion of the Court of Appeals of Texas, Waco, in Parker v. State, 2011 WL 6091248 (Tex.App.-Waco 2011), makes clear, there's an important distinction between the two rules.
Friday, December 9, 2011
When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
A defendant is charged with possession of a firearm by an ineligible person, and the complainant doesn't testify at his trial. Her hearsay statement, however, is introduced at trial, but the trial court precludes the defendant from impeaching her. Surely the trial court's decision is error, if not reversible error, right? Not according to the recent opinion of the Court of Appeals of Minnesota in State v. Craig, 2011 WL 6015031 (Minn.App. 2011).
Thursday, December 8, 2011
evidence of the following is not admissible in any civil or criminal proceeding against the defendant who made the plea or who was a participant personally or through counsel in the plea discussions:
So, let's say that a defendant pleads "no contest" and is convicted of the crime charged. Clearly, evidence of his plea is inadmissible under Rule 410(A)(2). But what about evidence of the resulting conviction? According to the recent opinion of the Court of Appeals of Ohio, Seventh District, in State v. Hubbs, 2011 WL 5995622 (Ohio App. 7 Dist. 2011), evidence of the conviction is inadmissible as well.
Wednesday, December 7, 2011
Saves The Day: Court Of Appeals Of Arizona Finds Entire Child Molestation Statement Admissible Under Rule 803(4)
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
Under Rule 803(4), statements about the general source of an injury are admissible. Thus, Paul's statement to his doctor that he hurt his arm when he was pushed down would be admissible. Conversely, statements about the person causing the illness/injury are generally not admissible. Thus, if Paul also told his doctor that it was Dan who pushed him down, this statement would typically be inadmissible. Why? Such statements of identification are ordinarily not reasonably pertinent to diagnosis or treatment. But does this limitations apply in cases of sexual assault or molestation? According to the recent opinion of the Court of Appeals of Arizona, Division 1, Department C., in State v. Cheatam, 2011 WL 5964514 (Ariz.App. Div. 1 2011), that changes things.
Tuesday, December 6, 2011
Federal Rule of Evidence 704(b) provides that
In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.
But let's say that a lay witness wants to offer opinion testimony on a criminal defendant's mental state? Is such testimony admissible? According to the recent opinion of the Tenth Circuit in United States v. Abramson-Schmeiler, 2011 WL 5925582 (10th Cir. 2011), the answer is "yes." I disagree.
Monday, December 5, 2011
The Case-In-Chief Waiver, Take 2: 4th Circuit Becomes 5th Circuit Court To Approve Case-In-Chief Waivers
In relevant part, Federal Rule of Evidence 410 provides that
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....
(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.
In United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a criminal defendant can waive Rule 410 protection and make his otherwise excludable plea statements admissible to impeach him should he make contradictory statements at trial. The Court left open the question of whether a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence. Thereafter, a most (all?) federal appellate courts found that a defendant could make such a waiver by presenting evidence at trial contradicting his otherwise excludable plea statements, which would allow the prosecution to use his statements substantively to rebut the evidence elicited, i.e., the "rebuttal waiver."
Until a few days ago, however, four federal appellate courts had found that a criminal defendant could waive Rule 410 and make his otherwise excludable plea statements admissible as substantive evidence even when he did not present evidence at trial contradicting his otherwise excludable plea statements. But after the opinion of the Fourth Circuit in United States v. Stevens, 2011 WL 5925327 (4th Cir. 2011), that number has risen to four.
Sunday, December 4, 2011
Suicidal Tendencies?: Court Of Appeals Of Maryland Finds Statement 1 Month Before Death Admissible Under State Of Mind Exception
A defendant is charged with murder. At trial, he seeks to present evidence that approximately 30 days prior to his death, the alleged victim said to a state trooper who placed him under arrest for a DUI, "I don't need this in my life at this point." The defendant claims that this statement was relevant to prove the alleged victim's suicidal state of mind. Should the statement qualify for admission under the state of mind exception to the rule against hearsay? According to the Court of Special Appeals of Maryland, the answer is "no." According to the recent opinion of the Court of Appeals of Maryland in State v. Smith, 2011 WL 5924338 (Md. 2011), that decision was an abuse of discretion.