EvidenceProf Blog

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

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Saturday, March 24, 2012

Without Prejudice?: 6th Circuit Deems Rape Shield Evidence Minimally Prejudicial To Victim, Reverses Conviction

The district court excluded the 2007 acts because those encounters occurred at a different place than the indicted offenses. Although there is certainly a difference between private sexual acts and those that take place in public, that does not eliminate, or even substantially reduce, the probative value of such acts in this case. This is especially true given Anderson's claim that his encounters with S.M. took place in atypical locations, such as the Medicine Lodge and a garage, in order to keep the activity hidden from her husband. Further, the prejudicial impact of this testimony was minimal, and any prejudice to S.M. was substantially outweighed by the probative value of this evidence to Anderson's defense of consent. Accordingly, we find that the district court abused its discretion in excluding this evidence. United States v. Anderson, 2012 WL 913709 (6th Cir. 2012) (emphasis added).

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March 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, March 23, 2012

Death Of The Furby: Supreme Court Of Kentucky Reverses Murder Conviction Based On Furby Shooting Evidence

According to Wikipedia,

A Furby (plural Furbys or Furbies) was a popular electronic robotic toy resembling a hamster/owl-like creature which went through a period of being a "must-have" toy following its launch in the holiday season of 1998, with continual sales until 2000. Furbies sold 1.8 million units in 1998, 14 million units in 1999, and altogether in its three years of original production, Furbies sold over 40 million units. Its speaking capabilities were translated into 24 languages.

Furbies were the first successful attempt to produce and sell a domestically-aimed robot. A newly purchased Furby starts out speaking entirely Furbish, the unique language that all Furbies use, but is programmed to start using English words and phrases in place of Furbish over time. This process is intended to resemble the process of learning English. In 2005, new Furbies were released, with voice-recognition and more complex facial movements, and many other changes and improvements. The Emoto-Tronic Furbies (Furby, Furby Baby, and Funky Furby) continued to be sold until late 2007, when these toys became extremely rare.

The year is 2001. Like many people back in the halcyon days of the Furby, Richard Gabbard became annoyed by the noises coming from one of the toys. Unlike most people, Gabbard decided to shoot at a Furby with his pistol, striking it between the eyes. About four and a half years later, Gabbard shot and killed his girlfriend and was later convicted of wanton murder. Part of the evidence against him consisted of testimony concerning the Furby shooting. Was this evidence properly admitted? According to the recent opinion of the Supreme Court of Kentucky in Gabbard v. Commonwealth, the answer is "no."

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March 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, March 22, 2012

March Madness: Court Of Appeals Of Texas Implies Insanity Defense Triggers Rule 405(b)

Similar to its federal counterpartTexas Rule of Evidence 405 provides that

(a) Reputation or Opinion. In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

(b) Specific Instances of Conduct. In cases in which a person's character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person's conduct.

So, in which cases is a person's character trait an essential element of a charge, claim, or defense, allowing for the admission of specific instances of conduct? The classic ones are negligent hiring/supervision, defamation, and entrapment. But what about insanity cases? Let's take a look at the recent opinion of the Court of Appeals of Texas, Dallas, in Beckett v. State, 2012 WL 955358 (Tex.App.-Dallas 2012).

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March 22, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, March 21, 2012

A Matter Of Conviction: District Of Montana Only Allows For Impeachment Through Fact Of Conviction

Federal Rule of Evidence 609(a)(1) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant....

A conviction's probative value under Rule 609(a)(1) depends on how much bearing it has on the witness' honesty while a conviction's prejudicial effect depends on how much the jury will use the conviction to conclude, "Once a criminal, always a criminal." What this means is that courts will often allow for the admission of evidence that a criminal has a prior conviction without allowing evidence of the nature of that prior conviction as was the case in United States v Durbin, 2012 WL 894410 (D.Mont. 2012).

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March 21, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 20, 2012

I'm Not An Expert: 11th Circuit Points Out District Court's Ignorance Of Rule 706

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As I have noted before, however, Rule 706(a) is rarely used, and courts are generally under no obligation to appoint experts. And indeed, the recent opinion of the Eleventh Circuit in Robinson v United States, 2012 WL 851623 (11th Cir. 2012), makes clear, some judges aren't even aware of the Rule.

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March 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, March 19, 2012

Cherry Picking: Court Of Appeals Of Minnesota Finds Harmless Error Despite Rule 704 Violation

Minnesota Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

That said, under Rule of Evidence 704, witnesses cannot testify regarding ultimate legal conclusions and/or the state of mind of a criminal defendant. But did the witnesses in State v. Hall, 2012 WL 896271 (Minn.App. 2012), cross the line?

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March 19, 2012 | Permalink | Comments (0) | TrackBack (0)