Saturday, March 5, 2011
(Not) OK Computer: Supreme Court Of Georgia Finds Computer Printout Not An Original Or Duplicate For Best Evidence Purposes
Federal Rule of Evidence 1002 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.
Meanwhile, OGCA Section 24-5-4(a) provides that
The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.
And, Federal Rule of Evidence 1001(3) provides, inter alia, that
If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an "original."
Georgia, however, has no counterpart to this portion of Federal Rule of Evidence 1001(3). Does this mean that a computer printout is not considered an "original" under Georgia's Best Evidence Rule? According to the recent opinion of the Supreme Court of Georgia in Baptiste v. State, 2011 WL 680793 (Ga. 2011), the answer is "yes."
Friday, March 4, 2011
About Schmitt: Court Of Appeals Of Iowa Finds Proper Foundation Was Laid For Admission Of Learned Treatise
Like its federal counterpart, Iowa Rule of Evidence 5.803(18) provides an exception to the rule against hearsay
To the extent called to the attention of an expert witness upon cross-examination or relied upon by that witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
The recent opinion of the Court of Appeals of Iowa in Schmitt v. Koehring Cranes, Inc., 2011 WL 649650 (Iowa.App. 2011), does a pretty good job of explaining the test for determining whether a writing qualifies as a learned treatise under Rule 803(18).
Thursday, March 3, 2011
Yesterday, I posted an entry about Justice Scalia accusing the majority in Michigan v. Bryant of retreating from Crawford v. Washington, 541 U.S. 36 (2004) and reverting to Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford rejected "as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause." In today's post, I wanted to explain the way in which I think that the majority resurrected Ohio v. Roberts. In Davis v. Washington, the Court held that
Without attempting to produce an exhaustive classification of all conceivable statements-or even all conceivable statements in response to police interrogation-as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
I think that the general assumption was that this language created a dichotomy. If the primary purpose of an interrogation was to enable police assistance to meet an ongoing emergency, statements made during that interrogation were nontestimonial. If, at the time of the interrogation, there were no (longer) such ongoing emergency, THEN the primary purpose of the interrogation was to establish or prove past events potentially relevant to later criminal prosecution and statements made during that interrogation were testimonial.
Wednesday, March 2, 2011
Yesterday, I posted an entry about the portions of Scalia's dissenting opinion in Michigan v. Bryant in which he claimed that "[t]he Court's distorted view creates an expansive exception to the Confrontation Clause for violent crimes." Today's post focuses upon those portion of his dissenting opinion in which he claims that that the majority is retreating from Crawford v. Washington, 541 U.S. 36 (2004) and reverting to Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford rejected "as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause."
Tuesday, March 1, 2011
Yesterday, I did two posts (here and here) about the Supreme Court's latest Confrontation Clause opinion: Michigan v. Bryant. Those opinions addressed the majority opinion. Today, I tackle Justice Scalia's "confrontational" dissent. In his dissent, Justice Scalia claims two things: (1) that "[t]he Court's distorted view creates an expansive exception to the Confrontation Clause for violent crimes; and (2) that the majority is retreating from Crawford v. Washington, 541 U.S. 36 (2004) and reverting to Ohio v. Roberts, 448 U.S. 56 (1980), which Crawford rejected "as an unworkable standard unmoored from the text and the historical roots of the Confrontation Clause." Oh, and he also makes a third claim: The majority are idiots. This post focuses upon Scalia's first claim.
Monday, February 28, 2011
My prior post on Michigan v. Bryant dealt with two aspects of the Court's opinion. It noted that under the opinion, the Court (1) adopted an objective test for determining whether statements are "testimonial" for Confrontation Clause purposes; and (2) concluded that this test should focus upon the statements and actions of both the interrogator and the declarant.
This post focuses upon three more important aspects of the Court's opinion and how the Court decided that Covington's statements were non-testimonial.
As noted in my prior post, the Supreme Court decided Michigan v. Bryant today. You can review the full facts of the case in the Court's opinion, but the basics are that police found Anthony Covington in a gas station parking lot, with Covington claiming that he had (1) been shot by Richard Bryant outside Bryant's house, and then (2) driven himself to the parking lot. Covington died as a result of his wounds, and the prosecution introduced his statements concerning his shooting at Bryant's murder trial. After Bryant was convicted, he appealed, claiming that the introduction of Covington's statements violated the Confrontation Clause, and the Supreme Court of Michigan agreed with him.
As I have previously noted,
In Crawford v. Washington, 541 U.S. 36 (2004), 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. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana, finding that
Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
In Michigan v. Bryant, the United States Supreme Court had to decide whether Covington's statements were testimonial or nontestimonial under this "primary" purpose test. Finding that they were nontestimonial, the Court reversed the opinion of the Supreme Court of Michigan and found no Confrontation Clause violation. Why, and what does the Court's opinion tell us about the Confrontation Clause going forward? Below is part one of my analysis. I wil post part two this afternoon after teaching a morning class.
Today, the Supreme Court issued its opinion in Michigan v. Bryant, its latest Confrontation Clause decision in the wake of Crawford v. Washington. Here is the start of the syllabus for the opinion:
Michigan police dispatched to a gas station parking lot found Anthony Covington mortally wounded. Covington told them that he had been shot by respondent Bryant outside Bryant’s house and had then driven himself to the lot. At trial, which occurred before Crawford v. Washington, 541 U. S. 36, and Davis v. Washington, 547 U. S. 813, were decided, the officers testified about what Covington said. Bryant was found guilty of, inter alia, second-degree murder. Ultimately, the Michigan Supreme Court reversed his conviction, holding that the Sixth Amendment’s Confrontation Clause, as explained in Crawford and Davis, rendered Covington’s statements inadmissible testimonial hearsay.
Held: Covington’s identification and description of the shooter and the location of the shooting were not testimonial statements because theyhad a “primary purpose . . . to enable police assistance to meet an ongoing emergency.” Davis, 547 U. S., at 822. Therefore, their admission at Bryant's trial did not violate the Confrontation Clause.
I will have more analysis later in the day. Hat tip to my colleague Tim O'Neill for the link
Sunday, February 27, 2011
Conspiracy Theory: Court Of Appeals Of Arizona Finds Statement "After" Burglary Qualified As Co-Conspirator Admission
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 a defendant is charged with burglary, and the prosecution calls one of his co-conspirators as a cooperating witness to testify that after the burglary another co-conspirator "made a comment...that the homeowners were inside the closet praying." Is this a statement made during the course of an in furtherance of the conspiracy to burglarize the house? According to the recent opinion of the Court of Appeals of Arizona, Division One, in State v. Martinez, 2011 WL 662434 (Ariz.App. Div. 1 2011), the answer is "yes."