EvidenceProf Blog

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

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Saturday, February 5, 2011

I Am Number Four: 10th Circuit Becomes 4th Federal Appellate Court To Approve Of Case-In-Chief Waivers

Federal Rule of Evidence 410 states in relevant part that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). The Court, however, left open the question of the validity of a "case-in-chief" waiver, under which a defendant waives the protections of Rule 410 and permits the prosecutor to present evidence otherwise excludable under it as part of its case-in-chief, regardless of whether the defendant testifies. Before Thursday, three federal circuit circuit courts -- the Fifth Circuit, the Eighth Circuit, and the D.C. Circuit -- had been presented with the question and a found such a waiver to be valid. With its opinion in United States v. Mitchell, 2011 WL 322371 (10th Cir. 2011), the Tenth Circuit can be added to the tally.

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

Friday, February 4, 2011

In Completion: Court Of Appeals Of Kentucky Finds Rule Of Completeness Applied In Gastric Bypass Case

Like its federal counterpart, Kentucky Rule of Evidence 106 provides that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

And, as the recent opinion of the Court of Appeals of Kentucky in Perry v. Larson, 2011 WL 181326 (Ky.App. 2011), makes clear, this "rule of completeness" applies even when the other part of the writing is offered for a different purpose as long as it concerns the same subject matter.

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

Thursday, February 3, 2011

Et Tu, Bruton?: Seventh Circuit Finds Admission Of Non-Facially Incriminatory Statement Didn't Violate Bruton Doctrine

Pursuant to the Bruton doctrine, in a jury trial, the admission of a co-defendant's confession that also facially incriminates another defendant violates the Confrontation Clause unless (1) the co-defendant testifies, or (2) the confession is independently admissible against the other defendant. When, however, the co-defendant's confession does not facially incriminate the other defendant, there is no Bruton doctrine problem as is made clear by the recent opinion of the Seventh Circuit in United States v. Spagnola, 2011 WL 181480 (7th Cir. 2011).

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February 3, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 2, 2011

Dead Letter: Court Of Appeals Of Michigan Finds Dead Man's Statute Abrogated By Rule 601

MCL 600.2166, Michigan's Dead Man's Statute, provides that

In an action by or against a person incapable of testifying, a party's own testimony shall not be admissible as to any matter which, if true, must have been equally within the knowledge of the person incapable of testifying, unless some material portion of his testimony is supported by some other material evidence tending to corroborate his claim.

Meanwhile, Michigan Rule of Evidence 601 provides that

Unless the court finds after questioning a person that the person does not have sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every person is competent to be a witness except as otherwise provided in these rules.

In its recent opinion in In re Moon Estate, 2011 WL 254934 (Mich.App. 2011), the Court of Appeals of Michigan had to address whether Rule 601 abrogated MCL 600.2166.

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

Tuesday, February 1, 2011

A Is For Apple: ND Cal Finds Former Testimony Inadmissible Against Apple In Patent Infringement Case

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.

And, as the recent opinion of the United States District Court for the Northern District of California in Affinity Labs of Texas, LLC v. Apple, Inc., 2011 WL 232521 (N.D. Cal. 2011), makes clear, Rule 804(b)(1) requires a contemporaneous opportunity and similar motive to develop the testimony of the witness.

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

Monday, January 31, 2011

A Loan Tonight: WDNC Finds Evidence of Bank's Discontiuing Of Non-Income Verification Loans Inadmissible Under Rule 407

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, as the recent opinion of the United States District Court for the Western District of North Carolina in Suntrust Mortg., Inc. v. Busby, 2011 WL 251201 (W.D.N.C. 2011), makes clear, this Rule excludes not only evidence of changes to instrumentalities after they allegedly caused accidents (e.g., adding a handrail to stairs that a victim fell down) but also evidence of, say, a bank discontinuing the use of non-income verification loans.

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January 31, 2011 | Permalink | Comments (1) | TrackBack (0)

Sunday, January 30, 2011

Sleep Experts: Ninth Circuit Allows Expert Testimony Under Rule 703 Based Upon Alleged Juror Misconduct

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.

Meanwhile, Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

So, let's say that a juror allegedly engages in misconduct during trial/deliberations. Obviously, jurors cannot testify about this misconduct after a verdict is entered in an attempt to impeach the verdict. But can these jurors tell an expert about this misconduct, with the expert then testifying that it is his opinion that the verdict was improperly reached? According to the recent opinion of the Ninth Circuit in Anderson v. Terhune, 2011 WL 148912 (9th Cir. 2011), the answer is "yes." I'm not sure that I agree.

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January 30, 2011 | Permalink | Comments (0) | TrackBack (0)