EvidenceProf Blog

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

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Wednesday, September 12, 2012

Unauthorized Transfer, Take 2: People v. Banos & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Yesterday, I posted an entry questioning the legitimacy of a transferred intent doctrine of forfeiture by wrong. A commenter then responded by asking for my thoughts on People v. Banos, 100 Cal.Rptr.3d 476 (Cal.App. 2 Dist. 2009). Here's my post on Banos, which I follow with a post on what I think is the key portion of Justice Scalia's opinion in Giles v. California.

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September 12, 2012 | Permalink | Comments (2) | TrackBack (0)

Tuesday, September 11, 2012

Unauthorized Transfer?: Should Courts Apply A Transferred Intent Doctrine Of Forfeiture By Wrongdoing?

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Over the last few days, I have posted several entries about the doctrine of forfeiture by wrongdoing. In the comments sections of these posts, there has been a lively debate about whether the Supreme Court has implicitly enorsed or repudiated a transferred intent doctrine of forfeiture by wrongdoing and whether transferred intent makes sense in the context of forfeiture. The key case often cited in support of the transferred intent doctrine is United States v. Gray, 405 F.3d 227 (4th Cir. 2005), and I have always taken that case as gospel on the subject. But, upon further review, I'm not sure that the Fourth Circuit's opinion holds water.

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September 11, 2012 | Permalink | Comments (11) | TrackBack (0)

Monday, September 10, 2012

Forfeit Loss: 8th Circuit Finds Forfeiture By Wrongdoing Applies To GF Who Aided & Abetted in Killing Witnesses Against BF

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Prompted by the recent Drew Peterson verdict and the revelation that the conviction was secured in large part due to application of the forfeiture by wrongdoing doctrine, I have posted a couple of entries (here and here). In turn, these posts have led to some animated comments that have led me to conduct a good deal of research into the forfeiture by wrongdoing and whether and to what extent the concept of transferred intent applies to the doctrine. The opinion of the Eighth Circuit in United States v. Johnson, 495 F.3d 951 (8th Cir. 2007), predates the Supreme Court's landmark forfeiture opinion in Giles v. California by about a year, but it presents an interesting question that I hadn't seen addressed before. Can a defendant's intent to render a witness unavailable at somebody else's trial transfer to the defendant's subsequent murder trial? According to the Eighth Circuit, the answer is "yes."

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September 10, 2012 | Permalink | Comments (6) | TrackBack (0)

Sunday, September 9, 2012

Common Law, Take 2: Were The Hearsay Statements In Drew Peterson's Trial Admitted In Compliance With Giles?

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

So, as established by my previous post, at the Drew Peterson trial, the prosecution admitted statements by Drew Peterson's third and fourth wives pursuant to the common law doctrine of forfeiture by wrongdoing and not "Drew's law." Accordingly, if Peterson is going to be successful on appeal, it will be based upon the statements being inadmissible under the common law doctrine as interpreted by the Supreme Court in Giles v. California and not based upon the statements being inadmissible under "Drew's law" (and not based upon the unconstitutionality of "Drew's law"). So, is Peterson likely to be successful?

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September 9, 2012 | Permalink | Comments (11) | TrackBack (0)

Saturday, September 8, 2012

Class Act: Eastern District Of New York Finds Rule Against Hearsay Applies At Class Certification Stage

Outside the Second Circuit, courts are split as to how stringently to apply the rules of evidence at the class certification stage. See, e.g., Serrano v. Cintas Corp., Civ Nos. 04–40132, 06–12311, 2009 WL 910702, at *3 (E.D.Mich. Mar.31, 2009) (declining to strike declarations in connection with motion to certify, despite admissibility challenges; holding that it was appropriate to consider all evidence at the class certification stage, while deferring admissibility determinations); Lewis v. First Am. Title Ins. Co., 265 F.R.D. 536, 552–53 (D.Idaho 2010) (noting split, but deciding that, for class certification purposes, court would not strictly apply evidentiary rules). Lujan v. Cabana Management, Inc., 2012 WL 3062017 (E.D.N.Y. 2012).

So, how did the Eastern District of New York rule in Lujan?

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September 8, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, September 7, 2012

Common Law: Why Drew Peterson Shouldn't Be Able To Appeal His Verdict Based On The Unconstitutionality of "Drew's Law"

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Yesterday, a jury finally convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Many articles discussing the verdict made reference to hearsay statements by Savio and Stacy Peterson (Drew Peterson's fourth wife) being admitted under "Drew's law," a state counterpart to Federal Rule of Evidence 804(b)(6) enacted specifically for the Peterson prosecution (see, e.g., here and here). Indeed, many articles discussed how these hearsay statements were the key pieces of evidence in a trial that was otherwise based upon circumstantial evidence (see, e.g., this article with quotes from a holdout juror). But here's the thing: Unless I'm missing something, these statements were not admitted pursuant to "Drew's law," contained in 725 ILCS 5/115-10.6.

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September 7, 2012 | Permalink | Comments (14) | TrackBack (0)

Thursday, September 6, 2012

Your Prejudice, I Presume?: 7th Circuit Rejects Indiana's Presumption Against Jury Prejudice

A defendant is on trial for neglecting and murdering his three year-old stepson. After he is convicted, the defendant learns that (a) before his trial, a juror's son informed the juror that the defendant was likely innocent, but that (b) during the trial, the juror found out that his son and several co-inmates changed their mind about the defendant and thought him guilty. The juror then shared this information with at least some other jurors. If the defendant appeals his verdict, is the presumption that he was unfairly prejudiced by this extraneous prejudicial information or that he was not prejudiced by this information. In Indiana, it used to be the latter, but thankfully that is no longer the case given the recent opinion of the Seventh Circuit in Hall v. Zenk, 2012 WL 3711879 (7th Cir. 2012).

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September 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 5, 2012

Informer, You Know Say: NJ Court Finds that Identity Of Confidential Informant Didn't Have To Be Disclosed

A defendant is charged with possession of cocaine with intent to distribute. That cocaine was seized pursuant to a search warrant obtained in large part on the basis of information from a confidential informant.  After the defendant is convicted, he appeals, claiming that the identity of the confidential informant should have been disclosed so that he could mount a challenge to the search warrant. Does he have a winning argument? As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Colon, 2012 WL 3705087 (N.J.Super.A.D. 2012), the answer is likely "no." But did the court's analysis make any sense?

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September 5, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 4, 2012

Free Musketeer? Dezmine Wells & The Due Process Implications Of Student Disciplinary Proceedings

When I was at the University of Virginia, I served as a judge on the First-Year Judiciary Committee and later as a student attorney for the University Judiciary Committee. During my time on those committees, I saw students found "not guilty" in criminal courts found "guilty" by the judiciary committees. And, during my time on those committees, I saw students found "guilty" by criminal courts found "not guilty" by the judiciary committees. (In fact, I secured a "not guilty" verdict in one of these cases). When I look back on my experience, I realize that the whole student justice thing is kind of crazy. Student attorneys and student judges decide the fate of other students while using a lower burden of proof and nothing really resembling the rules of evidence. Does such student justice constitute due process, especially when it results in the dismissal of a student? And what about when that student is found "not guilty" by the criminal justice system? Or, worse yet, what about when that student is not even indicted by a grand jury? This brings us to the case of Dezmine Wells.

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September 4, 2012 | Permalink | Comments (1) | TrackBack (0)

Monday, September 3, 2012

Silence Please: Court Of Appeals Of Texas Applies Silent Witness Theory Of Authentication To "Jumbled Mess"

A defendant is convicted of driving while intoxicated. This conviction is based in large part on the admission of a DWI videotape recorded at the scene of the accident. "Admittedly, the videotape was a 'jumbled mess' because it did not operate correctly as it was produced from an older model dashboard camera." Was the videotape properly authenticated? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Hines v. State, 2012 WL 3731646 (Tex.App.San Antonio 2012), the answer is "yes." I disagree.

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September 3, 2012 | Permalink | Comments (3) | TrackBack (0)

Sunday, September 2, 2012

Deep Impact: 9th Circuit Concludes That Retroactive Application Of Victim Impact Law Isn't Ex Post Facto

Article I, Section 9 of the Constitution states in relevant part that

No bill of attainder or ex post facto Law shall be passed.

And, Article I, Section 10 states in relevant part that 

No state shall enter into any ex post facto law.

Pursuant to the Supreme Court's opinion in Calder v. Bull, these Ex Post Facto clauses prohibit the retroactive application of, inter alia

"Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender."

Moreover, "[w]hile the Ex Post Facto Clause applies directly to legislative acts, the Fourteenth Amendment extends Article 1, Section 10's prohibition on ex post facto laws to include judicial decisions." So, can a new law allowing for the admission of victim impact evidence be applied retroactively consistent with the Ex Post Facto clauses? According to the recent opinion of the Ninth Circuit in Gentry v. Sinclair, 2012 WL 3667319 (9th Cir. 2012), the answer is "no." "yes." I disagree.

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September 2, 2012 | Permalink | Comments (5) | TrackBack (0)

Saturday, September 1, 2012

There's No Business Like Court Business: 9th Circuit Refuses To Take Judicial Notice In Marilyn Monroe Case

Federal Rule of Evidence 201(b) provides that

The court may judicially notice a fact that is not subject to reasonable dispute because it:  

(1) is generally known within the trial court’s territorial jurisdiction; or  

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

It is well established under Federal Rule of Evidence 201(b) that a court may take judicial

"notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989); E.I. DuPont de Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir.1986); Coney v. Smith, 738 F.2d 1199, 1200 (11th Cir.1984); Green v. Warden, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir.) (court took judicial notice of proceedings and filings in other courts, including a decision of the California Supreme Court issued while the parties' appeal in the federal case was pending), cert. denied, 404 U.S. 967, 92 S.Ct. 344, 30 L.Ed.2d 287 (1971).

But what if the other proceedings do not have a direct relation to the matters at issue in a case? That was the question addressed by the Ninth Circuit in its recent opinion in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 2012 WL 3743100 (9th Cir. 2012).

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September 1, 2012 | Permalink | Comments (3) | TrackBack (0)