Saturday, December 24, 2011
Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
So, how hard is it for the opposing party to prove that a public record lacks trustworthiness, making it inadmissible under Rule of Evidence 803(8)(B)? According to the recent opinion of the United States District Court for the District of New Hampshire in Masello v. Stanley Works, Inc., 2011 WL 5843494 (D.N.H. 2011), the answer is "pretty tough."
Friday, December 23, 2011
Federal Rule of Evidence 405(b) provides that
When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
So, when is character an essential element of a charge, claim, or defense? Pretty rarely. It is an essential element in a negligent hiring/supervision case because how can a plaintiff prove, for example, that a company was negligent in hiring/supervising a driver with a history of DUIs without presenting evidence of these DUIs? It's also an essential element in a defamation case because how can a defendant prove, for example, that the story it published accusing a plaintiff-politician of adultery was true and thus not defamatory without presenting evidence of the plaintiff's extramarital affairs. And, as the recent opinion of the Ninth CIrcuit in United States v. Reed, 2011 WL 5869494 (9th Cir. 2011), makes clear, character is also an essential element of (disproving) an entrapment defense.
Thursday, December 22, 2011
Take Me To Another Rule: Supreme Court Of Tennessee Finds Court Of Appeals Applied Wrong Version Of Rule 703
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. 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. The court shall disallow testimony in the form of an opinion or inference if the underlying facts or data indicate lack of trustworthiness. (emphasis added).
The third, bolded sentence in Rule 703 was not added until 2009, however, and the appeal that the Supreme Court of Tennessee heard in Holder v. Westgate Resorts Ltd., 2011 WL 6148588 (Tenn. 2011), was from a case that took place before it was added. So, what effect did this have on the court's decision?
Wednesday, December 21, 2011
Consider two scenes:
Juror # 8: I just want to talk.
Juror # 7: Well, what's there to talk about? Eleven men in here think he's guilty. No one had to think twice about it except you.
Juror # 10: I want to ask you something: do you believe his story?
Juror # 8: I don't know whether I believe it or not—maybe I don't.
Juror # 7: So how come you vote not guilty?
Juror # 8: Well, there were eleven votes for guilty. It's not easy to raise my hand and send a boy off to die without talking about it first....We're talking about somebody's life here. We can't decide in five minutes. Supposin' we're wrong.
Juror # 6: I said...this is a very important case and we should be very convinced that if the defendant is found guilty that it is beyond a reasonable doubt....
Foreman: We have spent some time now trying to understand the reasonable basis for his doubt, and I personally did not yet understand it....I would say that two-thirds of the jurors have tried to persuade—have actively tried to persuade...him that his current view is incorrect....
Juror # 4: Well, I guess he believes from the evidence that he's seen that there hasn't been sufficient proof....
Juror # 5: I think the question may have been raised: "Do you have a political agenda?" I think [it] might have been in the heat of the argument, because it does get heated back and forth from a bunch of different people. It may have been said.
Juror # 9: Well, he said this is a serious thing, and I don't really feel that there is enough cause for—or something to that effect....What he said was, "I wouldn't want to take anyone's freedom away, unless," you know, "I was sure that certain things took place."....
This language is taken from Judge Reinhardt in the Ninth Circuit's recent opinion in Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011). As Judge Reinhardt went on to note,
The first passage above is dialogue from the classic Academy Award-winning 1957 film, 12 Angry Men, in which Henry Fonda plays a holdout juror who, over two tense hours, convinces his eleven peers that the defendant in a murder trial should be acquitted. The second excerpt comes from the transcript of proceedings during the petitioner's murder trial, in which each juror was examined and cross-examined, seriatim and mid-deliberation, after it was reported that one juror was taking a different view from the others.
So, what happened to the holdout juror, and how does this relate to Alyssa Rosenberg's latest post in her Pop Culture and the Death Penalty Project, which deals with what is (in my opinion) Sidney Lumet's masterpiece and the finest slice of celluloid ever concerning the American legal system?
Tuesday, December 20, 2011
Except as otherwise provided in this rule, evidence of the following is not admissible against the defendant who made the plea or was a participant in the plea discussions:...
any statement made in the course of plea discussions with an attorney for the prosecuting authority that does not result in a plea of guilty or a plea of nolo contendere or that results in a plea, later withdrawn, of guilty or nolo contendere.
So, let's say that the prosecutor violates Rule 410(4), but the defense does not object. If the defendant is convicted and appeals, should the court reverse for plain error? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in Parker v. State, 2011 WL 5984539 (Tex.App.-Fort Worth 2011), the answer is "no."
Monday, December 19, 2011
Indiana Rule of Evidence 412(a)(3), an exception to Iowa's rape shield rule, states that evidence of an alleged victim's sexual history can be admitted if it is "evidence that the victim's pregnancy at the time of trial was not caused by the defendant." Meanwhile, Indiana Rule of Evidence 412(b)(1) states that
So, let's say that a defendant charged with child molesting and related crimes believes that another man caused the alleged victim's pregnancy but does not file a written motion at least ten days before trial because the "other man" was uncooperative with his deposition requests. Does this constitute "good cause," such that evidence of the sexual acts between the "other man" and the alleged victim could be presented at trial? According to the recent opinion of the Court of Appeals of Indiana in Jeffers v. State, 2011 WL 6088615 (Ind.App. 2011), the answer is "no."
Sunday, December 18, 2011
However Much: Court Of Appeals Of Utah Reverses Conviction Based On Improper Exclusion Of Alibi Testimony
(1) A defendant, whether or not written demand has been made, who intends to offer evidence of an alibi shall, not less than 10 days before trial or at such other time as the court may allow, file and serve on the prosecuting attorney a notice, in writing, of his intention to claim alibi. The notice shall contain specific information as to the place where the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish alibi. The prosecuting attorney, not more than five days after receipt of the list provided herein or at such other time as the court may direct, shall file and serve the defendant with the addresses, as particularly as are known to him, of the witnesses the state proposes to offer to contradict or impeach the defendant's alibi evidence.
(2) The defendant and prosecuting attorney shall be under a continuing duty to disclose the names and addresses of additional witnesses which come to the attention of either party after filing their alibi witness lists.
(3) If a defendant or prosecuting attorney fails to comply with the requirements of this section, the court may exclude evidence offered to establish or rebut alibi. However, the defendant may always testify on his own behalf concerning alibi.
(4) The court may, for good cause shown, waive the requirements of this section.
It seems clear to me that under this Section, (1) a defendant must provide pre-trial notice of any alibi evidence; (2) the prosecution must then respond with pre-trial notice of any witnesses who will contradict this alibi evidence; (3) both sides have a continuing duty to disclose after these initial disclosures; (4) failure to comply with (1)-(3) can lead to the exclusion of alibi-related evidence; (5) the court can waive (1)-(3) for good cause shown; and (6) a defendant can always testify on his own behalf concerning alibi even if he fails to comply with (1) and/or (3). According to the recent opinion of the Court of Appeals of Utah in State v. Gallup, 2011 WL 6091688 (Utah App. 2011), however, part (6) of the above was not clear to a Utah trial court, necessitating a reversal of a defendant's conviction.