EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, December 17, 2011

The Vermont Frat Questionnaire & The Foreseeability Of Stranger Rape Based Upon Increased Acquaintance Rape At A College

If I could rape someone, who would it be?

This now infamous question, asked at the end of a fraternity questionnaire at the University of Vermont, led to the fraternity being suspended. But let's say that the university took no action in response to this question. And let's say that the university also took no or only minimal action in response to a rise in the number of (acquaintance) rapes on its campus over a period of two years. Finally, let's say that a victim was raped at college by a stranger, who turned out to be one of the members of this fraternity, and sued the school for negligence. If the university moved for summary judgment dismissing the complaint, claiming that the rape was not foreseeable, should the court grant the motion? According to the opinion of the United States District Court for the Eastern District of Wisconsin in Lees v. Carthage College, 2011 WL 3844115 (E.D.Wis. 2011), the apparent answer is, "yes, the court should grant summary judgment" even in the face of expert testimony to the contrary. In fact, according to the court, such expert testimony should be deemed inadmissible.

Continue reading

December 17, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, December 16, 2011

Making Weight: Court Of Appeals Of Indiana Doesn't Allow Jury Impeachment Regarding Jury Experiments On Weight Bench

A husband arrives home and allegedly finds his wife dead, her lifeless body lying on a weightlifting bench with the weight bar pinned across her throat. The State disagreed, believing that the wife's death was a case of foul play. It charges the husband with murder. The case proceeds to trial, where the prosecution introduces the weight machine into evidence as an exhibit. During deliberations, the jurors use the weight machine to perform experiments. Are the results of these experiments extraneous prejudicial information, allowing for juror impeachment? According to the recent opinion of the Court of Appeals of Indiana in Pattison v. State, 2011 WL 6130778 (Ind.App. 2011), the answer is "no." I disagree.

Continue reading

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

Thursday, December 15, 2011

The Weight Of The Evidence, Take 2: Court Of Criminal Appeals Of Texas Reverses Conviction In Rule 804(b)(1) Case

Last year, I posted an entry about Sanchez v. State, 2010 WL 4336169 (Tex.App.-San Antonio 2010). As I noted at the time,

In Sanchez, Ivan William Sanchez was convicted of three counts of indecency with a child by sexual contact and one count of aggravated sexual assault of a child. Before Sanchez's trial, there was a pretrial hearing during which Angelica Newsome testified about a statement the complainant made to her regarding alleged acts of abuse committed against her by Sanchez. The purpose of this testimony was to determine whether the complainant's statement qualified for admission under Texas Code of Criminal Procedure article 38.072 Section 2(a)(3), which provides an an exception to the rule against hearsay for "outcry testimony" if, among other conditions, the statement describing the alleged offense was "made to the first person, 18 years of age or older, other than the defendant, to whom the child...made a statement about the offense or extraneous crime, wrong, or act." The trial court deemed the statement admissible. At trial, however, Newsome was unavailable, prompting the State to read  into evidence the testimony Newsome gave at the pretrial hearing.

After he was convicted, Sanchez appealed, claiming that the admission of this testimony was improper under Texas Rule of Evidence 804(b)(1) and violated his rights under the Confrontation Clause because his motive to develop the testimony of Newsome at the pretrial hearing was not the same as his motive would have been at trial.

The Court of Appeals of Texas, San Antonio, disagreed, but yesterday the Court of Criminal Appeals of Texas reversed in Sanchez v. State, 2011 WL 6183607 (Tex.Crim.App. 2011). Why?

Continue reading

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

Wednesday, December 14, 2011

Law & Crit, Take 6: "To Kill A Mockingbird" And Voice-Over Narration

On Monday, Bert Schneider passed away after having produced such classics as "Easy Rider," "Five Easy Pieces," and "The Last Picture Show." He was also the producer on Terrence Malick's pastoral "Days of Heaven," and his passing led Jeffrey Wells at "Hollywood Elsewhere" (where I used to write DVD reviews) to quip,

Bert Schneider, the last producer to semi-successfully micro-manage Terrence Malick and keep him from his own self-indulgent tendencies by somehow persuading him to keep Days of Heaven down to a managable 94 minutes, died Monday at age 78.

I can certainly appreciate where Jeff is coming from. I remember seeing "The New World" (the original cut) at the Regal Union Station 14 with a friend, who looked like she had just escaped from the ninth circle of hell as we exited the theater doors. Personally, I'm a fan of Malick, both his newer films as well as his 1970s twin bill of "Badlands" and "Days of Heaven" And one thing that these earlier films share is that they feature voice-over narration by young female characters (Sissy Spacek's Holly in "Badlands" and Linda Manz's Linda in "Days of Heaven").

Reading Jeff's post got me thinking about the best use of voice-over narration in movies. Certainly, Linda's narration in "Days of Heaven" would be the near the top of the list. As noted by Tim Dirks, in "Days of Heaven,"

The simple love story set on a pastoral landscape becomes a profound allegorical tale of harmony and discontinuity, love and hate, hopes and fears, and good and evil. Its emotional impact is shaped by the unique perspective of the narrator - a typical teenager telling the tale out of her own youthful concerns (having fun, her uncertain future), combining her beliefs about the dual contradictory nature of humanity ("you just got half-devil and half-angel in ya"), and imaginative and fearsome fantasies of religious judgment and divine retribution (the flaming end of the world, and the Devil's presence on Earth).

Also up there would be Morgan Freeman's narration in "The Shawshank Redemption." Of course, unlike Linda in "Days of Heaven," Freeman's Red is a man who has suffered for decades based upon the mistakes he made in his youth, and he is often relaying the wisdom he has gained as tears go by. In one particularly poignant scene, Red is before the parole board and responds to a question about whether he's sorry about what he did with the following:

There's not a day goes by I don't feel regret. Not because I'm in here, or because you think I should. I look back on the way I was then: a young, stupid kid who committed that terrible crime. I want to talk to him. I want to try and talk some sense to him, tell him the way things are. But I can't. That kid's long gone and this old man is all that's left. I got to live with that. Rehabilitated? It's just a bullshit word. So you go on and stamp your form, sonny, and stop wasting my time. Because to tell you the truth, I don't give a shit. 

This leads me to Alyssa Rosenberg's post today in her Pop Culture and Death Penalty Project.

Continue reading

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

Tuesday, December 13, 2011

Conspiracy Theory: Court Of Appeals Of Iowa Finds Statements After Discovery Of Body Qualified As Co-Conspirator Admissions

Like its federal counterpartIowa Rule of Evidence 5.801(d)(2)(E) provides that a statement is not hearsay if

The 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, let's say that three men allegedly conspire to kill a victim and then kill the victim. And let's say that the day after the body is discovered, with a police officer in the front yard of one of the co-conspirators, one alleged co-conspirator says to another that he is only one of three people who knew about the body. Does this statement qualify as a co-conspirator admission under Rule 5.801(d)(2)(E)? According to the recent opinion of the Court of Appeals of Iowa in State v. Huser, 2011 WL 6079120 (Iowa App. 2011), the answer is "yes."

Continue reading

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

Monday, December 12, 2011

Are You Available: Per Curiam Supreme Court Opinion Addresses Confrontation Clause Unavailability Question

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarantCrawford overruled Ohio v. Roberts, which held that held that the admission of a hearsay statement against a criminal defendant violates the Confrontation Clause unless (1) the hearsay declarant is "unavailable," and (2) the statement has adequate indicia of reliability in that it (a) falls within a firmly rooted hearsay exception or (b) bears particularized guarantees of trustworthiness. 

But when exactly is a declarant unavailable for Crawford/Roberts purposes? That was the question addressed by the United States Supreme Court today in Hardy v. Cross.

Continue reading

December 12, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 11, 2011

Can I Get A Copy: Court Of Appeals Of North Carolina Finds Copy Of Surveillance Video Admissible Under Rule 1004(a)

Like its federal counterpartNorth Carolina 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 statute.

That said, like its federal counterpartNorth Carolina Rule of Evidence 1004(a) provides that

An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:

all the originals are lost or destroyed, and not by the proponent acting in bad faith....

In its recent opinion in State v. Mitchell, 2011 WL 6046201 (N.C.App. 2011), the Court of Appeals of North Carolina used North Carolina Rule of Evidence 1004(a) to allow for the admission of a copy of convenience store surveillance tape. My question: Why didn't the court simply rely on North Carolina Rule of Evidence 1003?

Continue reading

December 11, 2011 | Permalink | Comments (0) | TrackBack (0)