Saturday, January 7, 2012
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.
So, let's say that pursuant to Montana Rule of Evidence 404(a)(2), defense counsel properly cross-examines a witness for the prosecution regarding the alleged victim's reputation for being a fighter. Can defense counsel now ask this witness about specific instances of fighting by the alleged victim? According to the recent opinion of the Supreme Court of Montana in State v. Daniels, 2011 WL 5357846 (Mont. 2011), the answer is "no."
Friday, January 6, 2012
Judicial notice is a doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. 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.
The opinion of the Second Circuit in Ke Chiang Dai v. Holder, 2012 WL 10969 (2nd Cir. 2012), is the second recent opinion (see here) to find that a court may take judicial notice of information from Google Maps. But how comfortable should we be with these conclusions?
Thursday, January 5, 2012
Return To Sender?: Court Of Appeals Of Arkansas Precludes Jury Impeachment Regarding Pre-Existing Knowledge
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 his or any other juror's mind or emotions as influencing him to asset [assent] to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions 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.
But, as the recent opinion of the Court of Appeals of Arkansas in Blake v. Shellstorm, 2012 WL 11254 (Ark.App. 2012), makes clear, the exception for "extraneous prejudicial information" covers information acquired after the start of trial, not pre-existing knowledge.
Wednesday, January 4, 2012
Striptease: DDC Finds Strip Club-Defendant Can Question Plaintiff-Strippers About Unreported Tips, But...
Federal Rule of Evidence 608(b) provides that
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
Under Rule 608(b), it is clear that witnesses can only be questioned about acts relating to crimen falsi, i.e., acts of falsehood or deceit, such as a waitress failing to report tips as income, as was the case in United States District Court for the District of Columbia in Tompson v. House, Inc., 2011 WL 6794939 (D.D.C. 2011). But as the language of Rule 608(b) makes clear, such questioning often won't be effective.
Tuesday, January 3, 2012
It's Of No Use: 6th Circuit Finds Proffer Statements Pursuant To Use Immunity Offer Aren't Statements Against Interest
Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for
A statement that:
(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and
(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
So, let's say that a co-defendant makes proffer statements that (patially) incriminate himself and (partially) exonerate himself pursuant to an offer of use, but not derivative-use, immunity. Do those statements qualify as statements against interest under Rule 804(b)(3)? According to the recent opinion of the Sixth CIrcuit in United States v. Jackson, 2011 WL 6881788 (6th Cir. 2011), the answer is "no."
Monday, January 2, 2012
Bleacher Report: Court Of Appeals Of North Carolina Finds Subsequent Remedial Measure Evidence Was Properly Precluded
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if those issues are controverted, or impeachment.
So, let's say that a six year-old is injured when he falls through the bleachers at a high school. And let's say that the school board thereafter adds a riser plate to the bleachers. Evidence of this subsequent remedial measure will be inadmissible under Rule 407 according to the recent opinion of the Court of Appeals of North Carolina in Davis ex rel. Gholston v. Cumberland County Bd. of Educ., 2011 WL 6365163 (N.C.App. 2011).
Sunday, January 1, 2012
A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition....
Meanwhile, Alabama Code § 15-25-31 provides that
An out-of-court statement made by a child under 12 years of age at the time of the proceeding concerning an act that is a material element of any crime involving child physical offense, sexual offense, and exploitation, as defined in Section 15-25-39, which statement is not otherwise admissible in evidence, is admissible in evidence in criminal proceedings, if the requirements of Section 15-25-32 are met.
So, let's say that an alleged child victim of a sex crime makes a statement that does not qualify for admission under Rule 801(d)(1)(A) but does qualify for admission under § 15-25-31. Should the court admit it. According to the recent opinion of the Supreme Court of Alabama in M.L.H. v. State, 2011 WL 6004617 (Ala. 2011), the answer is "yes."