EvidenceProf Blog

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

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Friday, March 9, 2012

Spring Break

I will be traveling for the next week or so and won't have any new entries during that time.

March 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Lack Of Immediacy: Court Of Appeals Of North Carolina Finds Statements Were Excited Utterances & Present Sense Impressions

Like their federal counterpartsNorth Carolina Rules of Evidence 803(1) and (2) provide exceptions to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

and

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Often both of these exceptions apply in the same case as was the case with the recent opinion of the Court of Appeals of North Carolina in State v. Moore, 2012 WL 698593 (N.C.App. 2012). Or was it?

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March 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 8, 2012

Death Valley: Court Of Appeals Of South Carolina Finds Statement About Will Inadmissible Under State Of Mind Exception

Similar to its federal counterpartSouth Carolina 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.

In Estate of Gill ex rel. Grant v. Clemson University Foundation, 2012 WL 720378 (S.C.App. 2012), the Court of Appeals of South Carolina found that a special referee did not err in excluding testimony about a statement made by the drafter  of a will because the statement came one year after the will was executed. But does this decision make sense given the language of Rule 803(3)?

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March 8, 2012 | Permalink | Comments (2) | TrackBack (0)

Wednesday, March 7, 2012

Going Retro: Appellate Court Of Illinois Finds Illinois Rules Of Evidence Apply Retroactively

Similar to its federal counterpartIllinois Rule of Evidence 409 provides that

In addition to the provisions of section 8–1901 of the Code of Civil Procedure (735 ILCS 5/8–1901), evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

But unlike its federal counterpartIllinois Rule of Evidence 409 only took effect on January 1, 2011. But does it apply retroactively? That was the question addressed by the recent opinion of the Appellate Court of Illinois, Fourth District, in its recent opinion in Lambert v. Coonrod, 2012 WL 697855 (Ill.App. 4 Dist. 2012).

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March 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 6, 2012

Copping A Plea: District Of Puerto Rico Finds Prosecutorial Compliance W/Witness Request Didn't Breach Plea Deal

The vast majority of criminal cases in this country are now resolved via plea agreement rather than through a criminal trial. In the typical plea bargaining scenario, the defendant agrees to plead guilty to a certain crime or crimes in exchange for the prosecutor recommending that the judge impose a certain sentence. But to what extent is the prosecutor bound to defend the plea agreement and the recommended sentence in the face of skepticism from the trial judge? That was the question addressed by the recent opinion of the United States District Court for the District of Puerto Rico in its recent opinion in United States v. Sevilla-Oyola, 2012 WL 642467 (D.Puerto Rico 2012).

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

Sunday, March 4, 2012

What Were You Thinking DNJ Finds Statement By Minor Victim Wasn't Admissible Under State Of Mind Exception

Federal 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 (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

As Rule 803(3) makes clear, this state of mind exception only covers statements indicating the declarant's then-existing state of mind, not statements that reflect the declarant's state of mind at a prior time. This was also made clear in the recent opinion of the United States District Court for the District of New Jersey in Mayfield v. United States, 2012 WL 664806 (D.N.J. 2012).

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March 4, 2012 | Permalink | Comments (0) | TrackBack (0)

Going Unnoticed: District Of Colorado Finds Exhibit List Is Insufficient Notice Under Rule 609(b)

Federal Rule of Evidence 609(b) states that

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

So, what exactly constitutes reasonable written notice under Rule 609(b)(2)? That was a question referenced by the recent opinion of the United States District Court for the District of Colorado in its recent opinion in Doyle v. Denver Dept. of Human Services, 2012 WL 652673 (D.Colo. 2012).

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March 4, 2012 | Permalink | Comments (0) | TrackBack (0)