Saturday, February 12, 2011
In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. But what about if the trial court determines that character evidence will be admissible in the event that a defendant testifies at trial and raises a certain defense. Does the defendant need to so testify to preserve that issue for appeal? According to the recent opinion of the Court of Appeals of Washington, Division 2, in State v. Phillips, 2011 WL 396479 (Wash.App. Div.2 2011), the answer is "yes."
Friday, February 11, 2011
Federal Rule of Evidence 706(a) provides that
The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. An expert witness shall not be appointed by the court unless the witness consents to act. A witness so appointed shall be informed of the witness' duties by the court in writing, a copy of which shall be filed with the clerk, or at a conference in which the parties shall have opportunity to participate. A witness so appointed shall advise the parties of the witness' findings, if any; the witness' deposition may be taken by any party; and the witness may be called to testify by the court or any party. The witness shall be subject to cross-examination by each party, including a party calling the witness.
And, as the recent opinion of the United States District Court for the District of Columbia in Carranza v. Fraas, 2011 WL 380164 (D.D.C. 2011), makes clear, judges uses Rule 706(a) to help themselves gain a better understanding of complex issues at trial, not to assist one of the litigating parties.
Thursday, February 10, 2011
Telephone Line: TN Court Best Evidence Violation Regarding Jailhouse Telephone Calls Not Plainly Erroneous
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 Act of Congress or the Tennessee Legislature.
As the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Graves, 2011 WL 398024 (Tenn.Crim.App. 2011), makes clear, however, if a party does not raise a Best Evidence objection at trial, it is unlikely that the party will successfully be able to raise the issue on appeal.
Wednesday, February 9, 2011
Open And Shut: Supreme Court Of Minnesota Finds Defendant's Statement During Omnibus Hearing Covered By Rule 410
Evidence of a plea of guilty, later withdrawn, or a plea of nolo contendere, or of an offer to plead guilty or nolo contendere to the crime charged or any other crime or of statements made in connection with any of the foregoing pleas or offers, is not admissible in any civil, criminal, or administrative action, case, or proceeding whether offered for or against the person who made the plea or offer.
In its recent opinion in State v. Brown, 2011 WL 13753 (Minn. 2011), the Supreme Court of Minnesota had to resolve a question of first impression: whether Rule 410 applies to statements made by a defendant in connection with plea discussions, or in connection with offers of settlement made by the State, when the statements by the defendant are made in open court and in response to questions posed by the district court. And, according to the court, the answer is "yes."
Tuesday, February 8, 2011
Nothing Compares: 9th Circuit Finds Best Evidence Rule Doesn't Cover Absence Of Entries In Computer Databases
Federal 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 Act of Congress.
So, let's say that the prosecutor wants to call a witness to testify about the absence of an entry in a computer database. Under the Best Evidence Rule, would the prosecutor be required to introduce a printout of the search results from the database? According to the recent opinion of the Ninth Circuit in United States v. Diaz-Lopez, 625 F.3d 1198 (9th Cir. 2010), the answer is "no."
Monday, February 7, 2011
Under the Bruton doctrine, at a joint jury trial, the admission of a codefendant's confession that facially incriminates another defendant violates the Confrontation Clause unless the co-defendant testifies at trial. The "facially incriminatory" portion of this doctrine comes from the Supreme Court's opinion in Richardson v. Marsh, 481 U.S. 200 (1987), in which it distinguished facially incriminatory confessions -- which violate the Confrontation Clause -- from confessions that only incriminate by inference -- which do not. Of course, in this regard, the Supreme Court merely set the Constitutional minimum, and there is nothing wrong with lower courts finding Confrontation Clause violations based upon co-defendant confessions that only incriminate by inference as was the case with the recent opinion of the Supreme Court, Appellate Division, Second Department, New York in People v. Russo, 2011 WL 337886 (N.Y.A.D. 2 Dept. 2011).
Sunday, February 6, 2011
That's One Interpretation: NJ Court Finds Confrontation Clause Doesn't Cover "Interpreters" Of Statements To Police
The Sixth Amendment's Confrontation Clause provides that
In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him.
Pursuant to the Supreme Court's opinion in Crawford v. Washington, 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. But let's assume that the declarant makes a statement to the police and does not speak English. And let's assume that the police get an interpreter to translate the declant's statements to them. If the police officer testifies concerning these translated statements, does the interpreter have to testify at trial? According to the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Venable, 2011 WL 10053 (N.J.Super.A.D. 2011), the answer is "no."