EvidenceProf Blog

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

Saturday, February 19, 2011

Dead Cert: Supreme Court Of Mississippi Finds Death Certificate Listing Time Of Death Admissible Under Rule 803(9)

Like its federal counterpart, Mississippi Rule of Evidence 803(9) provides an exception to the rule against hearsay for

Records or data compilations of vital statistics, in any form, if the report thereof was made to a public officer pursuant to requirements of law.

The recent opinion of the Supreme Court of Mississippi in Birkhead v. State, 2011 WL 539056 (Miss. 2011), gives me my first chance to address either version of Rule 803(9) and how the Rule differs from the common law in at least some states.

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February 19, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, February 18, 2011

Follow The Leader: Ninth Circuit Finds Statements Of Customer Confusion Admissible Under State Of Mind Exception To Rule Against Hearsay

Customers call a company complaining that they were confused because they visited what they thought was the company's website but could not find any information about the company. It turns out that an "Internet entrepreneur" acquired a domain name with the company's name and created a website that consisted only of a few lines of code redirecting visitors to a different website with search result links, including links to the company's competitors. The company sues the individual, claiming that he violated the Lanham Act, the Anticybersquatting Consumer Protection Act, a consumer protection act, and common law. Should the company be able to present evidence about the customer complaints that they received? According to the recent opinion of the Ninth Circuit in Lahoti v. Vericheck, Inc., 2011 WL 540541 (9th Cir. 2011), the answer is "yes."

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February 18, 2011 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 17, 2011

10 Years Have Got Behind You: Court of Appeals Of North Carolina Finds No Error With Admission Of Conviction Under Rule 609(b)

Like its federal counterpart, North Carolina Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than 10 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

As Rule 609(b) and the recent opinion of the Court of Appeals of North Carolina in State v. Bortone, 2011 WL 532136 (N.C.App. 2011), make clear this ten-year rule is based upon the date of conviction or the date of release, whichever is the later date.

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

Wednesday, February 16, 2011

(Un)Masked and Anonymous: Supreme Court Of Arizona Finds Anonymous Call Admissible Under Rule 804(b)(3)

Similar to its federal counterpart, Arizona Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

As I have previously noted on this blog, courts typically have found that anonymous statements cannot qualify as statements against interest under Rule 804(b)(3). The recent opinion of the Supreme Court of Arizona is Arizona v. Machado, 2011 WL 519752 (Ariz. 2011), is an exception to this general practice.

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

Tuesday, February 15, 2011

D.C. Cab: DDC Denies Motion For Pretrial Hearing On Admissibility Of Co-Conspirator Admissions In Cab Corruption Case

Federal Rule of Evidence 801(d)(2)(E) provides that 

A statement is not hearsay if...[t]he 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 the prosecution wants to admit alleged co-conspirator admissions against a defendant. Should the court allow the prosecution to introduce these alleged admissions only after it establishes that the declarant was a co-conspirator of the defendant and that the statements were made during the course and in furtherance of the conspiracy? Or should the prosecution be able to introduce these alleged admissions contingent upon its subsequent introduction of evidence sufficient to satisfy the Rule's requirements, with the court declaring a mistrial or instructing the jury to disregard the statements if such evidence is not presented? According to the recent opinion of the United States District Court for the District of Columbia in United States v. Loza, 2011 WL 340290 (D.D.C. 2011), the answer is "no." I disagree, at least in cases in which the court only instructs the jury after it determines the the alleged admissions are inadmissible.

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

Monday, February 14, 2011

Blue Valentine: Court Of Appeals Of Mississippi Finds Rule 408 Doesn't Cover Divorce Property Settlement Agreement

Similar to its federal counterpart, Mississippi Rule of Evidence 408 provides that

Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

But does Rule 408 preclude the admission of a property settlement agreement in a divorce agreement? According to the recent opinion of the Court of Appeals of Mississippi in Wilson v. Wilson, 2011 WL 386814 (Miss.App. 2011), the answer is "no."

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February 14, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 13, 2011

The Sound Of Silence: Court Of Appeals of Iowa Precludes Jury Impeachment After Jury Finds Guilt Based On Defendant's Choice Not To Testify

Similar to its federal counterpart, Iowa Rule of Evidence 5.606(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, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

So, let's say that a defendant exercises his Fifth Amendment right not to testify at trial, and jurors improperly use his failure to testify as evidence of his guilt. Can this jury misconduct form the proper predicate for jury impeachment under Rule 5.606(b)? According to the recent opinion of the Court of Appeals of Iowa in State v. Blair, 2011 WL 441968 (Iowa.App. 2011), the answer is "no."

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