EvidenceProf Blog

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

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Saturday, December 31, 2011

The Big C: Supreme Court Of Minnesota Finds Statements By Cancer-Ridden Declarant Weren't Dying Declarations

Like its federal counterpartMinnesota Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

So, let's say that a declarant makes a statement while terminally ill with cancer, but the statement does not concern his cancer. Does the statement qualify as a dying declaration? According to the recent opinion of the Supreme Court of Minnesota in Roby v. State, 2011 WL 6783876 (Minn. 2011), the answer is "no."

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December 31, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, December 30, 2011

Child Bride: Supreme Court Of Louisiana Finds Evidence Of Marriage To Child Bride Admissible To Prove Lustful Disposition

La. C.E. art 412(2)(A) states that

When an accused is charged with a crime involving sexually assaultive behavior, or with acts that constitute a sex offense involving a victim who was under the age of seventeen at the time of the offense, evidence of the accused's commission of another crime, wrong, or act involving sexually assaultive behavior or acts which indicate a lustful disposition toward children may be admissible and may be considered for its bearing on any matter to which it is relevant subject to the balancing test provided in Article 403.

This Rule is somewhat similar but also somewhat different from Federal Rule of Evidence 414(a), which provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what's the difference? Well, in many jurisdictions, the age at which an individual can consent to a marriage is often lower than age at which an individual can consent to sexual acts. And there can't be statutory rape between a husband and a wife. What this means is that an adult who engages in sexual acts with a minor of a certain age is engaging in statutory rape if the minor is not his wife while an adult who engages in sexual acts with a minor of the same age is not engaging in statutory rape if the minor is his wife. 

So, let's say that a defendant is charged with aggravated incest against a minor and previously married his wife (and engaged in sexual acts with her) when he was an adult and she was 14 year-old. Is evidence of the marriage and marital relations admissible under Federal Rule of Evidence 414(a)? No. Is it admissible under La. C.E. art 412(2)(A)? As the recent opinion of the Supreme Court of Louisiana in State v. Wright, 2011 WL 6091243 (La. 2011), makes clear, the answer is "yes."

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

Thursday, December 29, 2011

Taking Exception: Is Evidence Of Prior Oral Sex By 15 Year-Old Victim Admissible In Prosecution Of 38 Year-Old?

A 38 year-old defendant is charged with four counts of sexual conduct with a minor, and it is undisputed that he engaged in four acts of oral sexual intercourse with the victim, who was 15 years-old. The defendant, however, seeks to present evidence that the victim had engaged in oral sex with two other individuals, claiming that it went to his belief that the victim was eighteen or older. Should the court deem this evidence admissible? According to a trial court the answer is "yes," and it may reach the same conclusion after a remand from the Court of Appeals of Arizona.

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December 29, 2011 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 28, 2011

This Is A Recording: Court Of Appeals Of Arizona Finds Videotape Qualifies As Recorded Recollection

Like its federal counterpart, Arizona Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

Usually, this recorded recollection exception applies to writings (or typewritten documents), and you can see from the language of Rule 803(5) that this was the original intent of the Rule ("may be read into evidence"). That said, as is made clear by opinions such as the recent opinion of the Court of Appeals of Arizona, Division 1, Department E., in State v. Silva-Acosta, 2011 WL 6747389 (Ariz.App. Div. 1 2011), courts have also found that the exception covers videotapes.

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December 28, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 27, 2011

Collateral Damage: Court Of Appeals Of Arizona Finds Collateral Evidence Rule Doesn't Apply To Bias Evidence

Like its federal counterpartArizona Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The portion of Rule 608(b) that excludes extrinsic evidence of specific instances of conduct, however, only applies to instances of conduct unrelated to the case at hand used to prove that a witness is generally a liar. For instance, under Rule 608(b), defense counsel could ask an (eye)witness for the prosecution whether he ever cheated on his taxes but could not prove the act (of cheating) through extrinsic evidence. Conversely, defense counsel could both ask the (eye)witness whether some specific act (such as the defendant stealing his girlfriend) rendered him biased against the defendant and prove this act through extrinsic evidence, as is made clear by the recent opinion of the Court of Appeals of Arizona,Division 1, Department E., in State v. Herrera, 2011 WL 6747405 (Ariz.App. Div. 1 2011).

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December 27, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, December 26, 2011

E Tu, Bruton, Take 2: Eastern District Of Michigan Finds Nontestimonial Statements Beyond Scope Of Bruton

The statements from John Henry Williams to Kareemah Greer, Deville Thedford, Richard Peeples, and Donnell Hornbuckle concerning petitioner's involvement in the robbery and murder do not qualify as testimonial statements covered by the Confrontation Clause because they were casual remarks made to a friend or family member and not ones made to law enforcement....Morever, because the Confrontation Clause has no applicability to non-testimonial statements, they may be admitted even if they lack indicia of reliability. See Whorton v. Bockting, 549 U.S. 406, 420...(2007). Thus, the admission of Williams' statements to Greer, Thedford, Peeples, and Hornbuckle did not violate petitioner's Sixth Amendment right to confrontation. Frazier v. Scutt, 2011 WL 5507 383 (E.D.Mich. 2011) (emphasis added).

Following up on my post from yesterday, the recent opinion of the United States District Court for the Eastern District of Michigan in Frazier v. Scutt is yet another example of a court finding that nontestimonial statements are beyond the scope of the the Bruton doctrine in the wake of Crawford v. Washington, 541 U.S. 36 (2004). And, I would argue that it is yet another example of a court getting it wrong.

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December 26, 2011 | Permalink | Comments (1) | TrackBack (0)

Sunday, December 25, 2011

E Tu, Bruton?: Supreme Court Of Nevada Finds Bruton Doctrine Doesn't Cover Nontestimonial Hearsay

The Confrontation Clause of the Sixth Amendment states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. In Crawford v. Washington, 541 U.S. 36 (2004), however, 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 declarant.

In the wake of Crawford, several courts have been presented with the question of whether the Bruton doctrine still covers nontestimonial hearsay in the wake of Crawford. Almost every court, including the Supreme Court of Nevada in its recent opinion in Perez v. State, 2011 WL 4527520 (Nev. 2011), has answered this question in the negative. I continue to contend that these courts are wrong.

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December 25, 2011 | Permalink | Comments (0) | TrackBack (0)