EvidenceProf Blog

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

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Saturday, February 26, 2011

Silence, Please!: Court Of Appeals Of Wisconsin Finds Court Can Preclude Attorney From Sharing Prior Testimony With Future Witnesses

Wisconsin Stat. Section 905.15(3) provides that

The judge or circuit court commissioner may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended. 

But does this Section give courts the power to prevent an attorney from discussing with a nonparty witness the testimony of other witnesses? According to the recent opinion of the Court of Appeals of Wisconsin in State v. Copeland, 2011 WL 659381 (Wis.App. 2011), the answer is "yes."

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February 26, 2011 | Permalink | Comments (0) | TrackBack (0)

Friday, February 25, 2011

Without Limits: Court Of Appeals Of Indiana Finds No Problem With Limiting Instruction Given Before Introduction Of Evidence

Like its federal counterpart, Indiana Rule of Evidence 105 provides that

When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly.

But can a party only ask for a limiting instruction under Rule 105 only after the opposing party has introduced evidence admissible for one purpose but inadmissible for another, or can it ask for, and receive, such an instruction before such evidence is introduced? According to the recent opinion of the Court of Appeals of Indiana in State v. Velasquez, 2011 WL 601216 (Ind.App. 2011), the answer is that there is no need to wait.

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

Thursday, February 24, 2011

Hitting On The Moonshine: Court of Appeals Of Kentucky Finds Evidence Defendant Drank Moonshine Inadmissible Under Rule 403

Like its federal counterpart, Kentucky Rule of Evidence 403 provides that

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of undue prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

So, assume that a plaintiff sues a defendant for assault and seeks to present evidence that the defendant admitted to drinking "moonshine" before the alleged assault. Should the plaintiff be able to present evidence relating to the defendant's ingestion of "moonshine," or should the trial court exclude such evidence under Rule 403? According to the recent opinion of the Court of Appeals of Kentucky in Wilkerson v. Williams, 2011 WL 559218 (Ky.App. 2011), there was no problem with the trial court excluding such evidence. I disagree.

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February 24, 2011 | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 23, 2011

Take Good Care Of My Baby: Court Of Appeals Of Kentucky Deems Will Related Statements Inadmissible Under Rule 803(3)

Like its federal counterpart, Kentucky Rule of Evidence 803(3) provides an exception to the rule against hearsay for 

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

So, let's say that after executing a will, the testator tells (1) a friend how he had taken care of his wife and how she had always taken care of him; and (2) his reverend that his wife would be taken care of. Are these statements admissible under Rule 803(3)? According to the recent opinion of the Court of Appeals of Kentucky in Kemper v. Kemper, 2011 WL 557708 (Ky.App. 2011), the answer is "no." I disagree.

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February 23, 2011 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 22, 2011

The Hole Dang Thing: Supreme Court Of Rhode Island Finds Calling Of Defendant By Nickname Not Hearsay

Like its federal counterpart, Rhode Island Rule of Evidence 801(c) defines hearsay as

a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.

So, let's say that an eyewitness to a crime testifies that a man with the nickname "Dang" committed a crime. Can the prosecution call a witness to testify that people use that nickname to refer to the defendant charged with the crime. Is the use of that nickname hearsay? According to the recent opinion of the Supreme Court of Rhode Island in State v. Johnson, 2011 WL 576082 (R.I. 2011), the answer is "no."

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February 22, 2011 | Permalink | Comments (0) | TrackBack (0)

Monday, February 21, 2011

Thanks For The Opportunity: Court Of Appeals Of Ohio Finds Deficient Cross-Examination Doesn't Preclude Application Of Rule 804(b)(1)

Similar to its federal counterpart, Ohio Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for 

Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. Testimony given at a preliminary hearing must satisfy the right to confrontation and exhibit indicia of reliability.

So, let's say that a witness for the prosecution testifies at a preliminary hearing, and the prosecution seeks to present that testimony at trial without having that witness testify again. Will the fact that defense counsel engaged in a deficient cross-examination of that witness present the testimony from being introduced under this "former testimony" exception. According to the recent opinion of the Court of Appeals of Ohio, Tenth District, in State v. Sidibeh, 2011 WL 553140 (Ohio App. 10 Dist. 2011), the answer is "no" because Rule 804(b)(1) only requires the opportunity and similar motive to develop the testimony.

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February 21, 2011 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 20, 2011

¿Hablas Español?: Supreme Court Of Indiana Finds No Problem With Admission Of Translation Under Best Evidence Rule

Like its federal counterpart, Indiana Rule of Evidence 1002, its Best Evidence Rule, provides in relevant part 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. 

So, let's say that a confidential informant surreptitiously records Spanish-language drug deals between the defendant and himself. Can the prosecution admit English language translations of these recordings without introducing the original recordings at trial? According to the recent opinion of the Supreme Court of Indiana in Romo v. State, 2011 WL 446285 (Ind. 2011), the answer is "yes"...sort of.

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February 20, 2011 | Permalink | Comments (0) | TrackBack (0)