EvidenceProf Blog

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

Saturday, April 14, 2012

Where's My Subpoena?: SDNY Doesn't Quash Subpoena Seeking Impeachment Material

Federal Rule of Criminal Procedure 17(c)(1) provides that

A subpoena may order the witness to produce any books, papers, documents, data, or other objects the subpoena designates. The court may direct the witness to produce the designated items in court before trial or before they are to be offered in evidence. When the items arrive, the court may permit the parties and their attorneys to inspect all or part of them.

It is well established that

Rule 17(c) is "not intended to provide a means of discovery for criminal cases," and the scope of the rule is confined to "evidentiary" materials. See United States v. Nixon, 418 U.S. 683, 698-99...(1974).  Under Nixon, a party seeking the production of the documents must demonstrate that the materials are: (1) relevant; (2) admissible; (3) specifically identified; and (4) not otherwise procurable. United States v. Carollo, 2012 WL 1195194 (S.D.N.Y. 2012).

Therefore, in deciding whether to quash a subpoena, a court must deterime whether the materials sought will be admissible as evidence at trial, as was the case in Carollo.

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April 14, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, April 13, 2012

I Guaranty It: Southern District Of California Finds Loan Documents To Be Self-Authenticating Under Rule 902(9)

Federal Rule of Evidence 902(9) provides that

The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted:...

(9) Commercial Paper and Related Documents. Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.

The recent opinion of the United States District Court for the Southern District of California in Rancho Mountain Properties, Inc. v. Gray, 2012 WL 1192755 (S.D.Cal. 2012), provides one of the few examples that I have seen of a court applying Rule 902(9).

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April 13, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, April 12, 2012

Article Of Interest - A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, By Kevin Lapp & Joy Radice

In 2000, the federal DNA Analysis Backlog Elimination Act authorized for the first time compulsory extraction of DNA from federal offenders, covering those convicted of a “qualifying Federal offense” and who were still in custody or under post-conviction supervision. Federal law initially prohibited DNA profiles of arrestees from being placed in CODIS. In 2006, Congress significantly expanded DNA collection, authorizing the Attorney General to promulgate regulations for collecting DNA from individuals "arrested, facing charges, or convicted." The Department of Justice issued a final rule in 2008 that directs federal agencies to collect DNA samples from individuals who are arrested, facing charges, or convicted, regardless of the underlying charge or offense. Kevin Lapp & Joy RadiceA Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, North Carolina Law Review Addendum, Vol. 90, p. 157 (2012).

In A Better BalancingLapp and Radice, Acting Assistant Professors of Lawyering at the New York University School of Law, take issue with this federal law in large part through deconstructing the analogy that courts have drawn between compulsory DNA collection and compulsory fingerprint collection. I thoroughly agree with their deconstruction and think that an analogy can be drawn between the progression from suspicionless, warrantless fingerprint collection to suspicionless, warrantless DNA collection and the progression from suspicionless, warrantless visual surveillance to suspicionless, warrantless GPS surveillance, a practice that was recently halted by the Supreme Court in United States v. Jones. In both cases, to say that we are dealing with an apples-to-apples comparison only makes sense if the the latter apple is the fruit of the poisonous tree.

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April 12, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 11, 2012

Cruz Control?: Could The Bruton Doctrine Provide A Solution To The Problem Facing The Court In Williams v. Illinois?

In Bruton v. United States, 391 U.S. 123 (1968) and its progeny, the Supreme Court has held that the Confrontation Clause of the Sixth Amendment is violated by the admission at a joint jury trial of a co-defendant's confession that facially incriminates another defendant if the co-defendant does not testify at trial. So, for example, If Carl confesses to Police Officer Peters, "Dan and I robbed the bank," the prosecution could not call Peters to testify to this statement at the joint jury trial for Carl and Dan if Carl chose not to testify. The thinking of the Court in Bruton was two-fold: (1) Carl's confession is not admissible against Dan, and even if the judge instructed the jury only to use Carl's confession as evidence of Carl's guilt, there would be too strong of a likelihood that the jury would use the confession as evidence of Dan's guilt; and (2) the jury's likely use of Carl's confession as evidence of Dan's guilt would have a "devastating effect" on Dan's defense.

But what if Dan himself confessed to the crime? Wouldn't that mean that Dan devastated his own case and could not complain about the admission of Carl's confession? The Supreme Court answered this question in the negative in Cruz v. New York, 481 U.S. 186 (1987). According to the Court in Cruz, the admission of Carl's "interlocking" confession in this latter situation would be more devastating because

it seems to us that "interlocking" bears a positively inverse relationship to devastation. A codefendant's confession will be relatively harmless if the incriminating story it tells is different from that which the defendant himself is alleged to have told, but enormously damaging if it confirms, in all essential respects, the defendant's alleged confession. It might be otherwise if the defendant were standing by his confession, in which case it could be said that the codefendant's confession does no more than support the defendant's very own case. But in the real world of criminal litigation, the defendant is seeking to avoid his confession—on the ground that it was not accurately reported, or that it was not really true when made.

Of course, Bruton and Cruz are still good law today, and some, myself included, have argued that the Bruton line of cases involves a separate strain of Confrontation Clause analysis than do the Crawford line of cases. So far, the vast majority of courts have disagreed with me, and if they're right, could Bruton/Cruz provide a solution to the Supreme Court's pending decision in Williams v. Illinois and similar cases?

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

Tuesday, April 10, 2012

Make Me Whole, Take 7: Court Of Appeals Of MN Finds No Problem W/Impeachment Through 2 Assault Convictions In Assault Case

Following up on yesterday's post about the admissibility of prior conivctions for sex crimes for impeachment purposes, I give you another in a long line of ridiculous impeachment cases from the great state of Minnesota: State v. Gardner, 2012 WL 1149325 (Minn.App. 2012)

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April 10, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, April 9, 2012

Julia Rickert's Denying Defendants the Benefit of the Doubt & an Argument for Empiricism in Rule 609 Impeachment

Late one cold night in Chicago, a homeless man came upon an unlocked car parked on the street. He decided he would sleep in it. Early the following morning, he awoke just as a police cruiser pulled parallel to the car. He was arrested and later charged with burglary. Because of his criminal history, the man faced six to thirty years if convicted. The prosecutor offered him eight years in exchange for a guilty plea.

The crime of burglary, a Class 2 felony in Illinois, is committed when one "knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft." The requisite intent to commit a felony or theft can be inferred from the bare circumstance of having entered without authority. This inference can of course be rebutted.

In this case, the defendant had not disturbed any of the valuables in the car. The police had been called by the car’s owner, who reported the presence of someone in his vehicle, but did not specify whether the person was awake or asleep. The police report did not comment on whether the homeless man appeared to have just awoken, but it did indicate that sunglasses were found in the homeless man’s pocket. The vehicle owner told the police that the sunglasses looked familiar and may have been left in his car by a friend. The trespasser, however, claimed the sunglasses were his own. What no one disputed was that the car contained items of value that had not been disturbed, such as a cellular phone, a stereo, and compact discs.

If this defendant is charged with burglary and wants to argue that he is only guilty of trespass, how is he going to rebut the inference of intent? The obvious answer is "by testifying." But what if the defendant has two prior convictions for criminal sexual assault. Would evidence of these convictions be admissible in the event that the defendant testifies, in effect putting him between a rock (not testifying) and a hard place (testifying and having the jury hear about his prior convictions)? This is the question addressed by Julia Rickert, currently a clerk for the United States Court of Appeals for the Seventh Circuit, in her article, Denying Defendants the Benefit of the Doubt: Federal Rule of Evidence 609 and Past Sex Crime Convictions, 100 J. Crim. L. & Criminology 213 (2010).

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April 9, 2012 | Permalink | Comments (4) | TrackBack (0)

Sunday, April 8, 2012

Withdrawal Symptoms: Court Of Appeals Of Missouri Finds Statements Related To Withdrawn Guilty Plea Inadmissible

Missouri Supreme Court Rule 24.02(d)(5) states that

Except as otherwise provided in this Rule 24.02(d)5, evidence of a plea of guilty, later withdrawn, or of an offer to plead guilty to the crime charged or of any other crime, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers is not admissible in any civil or criminal proceeding against the person who made the plea or offer. However, evidence of a statement made in connection with, and relevant to, a plea of guilty, later withdrawn, or an offer to plead guilty to the crime charged or any other crime is admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel.

Rule 24.02(d)(5) thus makes explicit what Federal Rule of Evidence 410(1) does not: that statements made in connection with a withdrawn guilty plea are inadmissible. As an example, let's look at the recent opinion of the Missouri Court of Appeals, Southern District, Division Two, in State v. Thieman, 353 S.W.3d 384 (Mo.App. S.D. 2011).

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April 8, 2012 | Permalink | Comments (0) | TrackBack (0)