EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, January 14, 2012

In The Main(e): Supreme Court Of Maine Reveals Lack Of Mercy Rule For Victim Character Evidence

Federal Rule of Evidence 404(a)(2)(B) provides in relevent part that

subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait...

In other words, despite the propensity character evidence proscription,  a criminal defendant charged with murdering a victim could present evidence concerning the victim's violent character pursuant to the above "mercy rule." Maine Rule of Evidence 404(a), however, does not contain a similar provision, which was fatal to the defendant's appeal in State v. Holland, 2012 WL 90160 (Me. 2012).

Continue reading

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

Friday, January 13, 2012

Parting Gesture: Court Of Appeals Of Indiana Finds Trial Court Properly Found Hand Gestures Were Excited Utterances

Like its federal counterpartIndiana Rule of Evidence 803(2) provides an exception to the rule against hearsay for

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.

And, as the recent opinion of the Court of Appeals of Indiana in Evans v. State, 2012 WL 77216 (Ind.App. 2012), makes clear, this "excited utterance" exception covers not only oral statements but also nonverbal conduct intended as an assertion.

Continue reading

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

Thursday, January 12, 2012

Dead Again: NJ Appellate Court Finds Dying Declarations Were Nontestimonial

Similar to its federal counterpartNew Jersey Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness is admissible if it was made voluntarily and in good faith and while the declarant believed in the imminence of declarant's impending death.

Since the Supreme Court's opinion in Crawford v. Washington, 541 U.S. 36 (2004), every case that I have seen dealing with Rule 804(b)(2) has found that the admission of a testimonial dying declaration per se does not violate the Confrontation Clause. But what about the recent opinion of the Superior Court of New Jersey, Appellate Division in State v. Whitehurst, 2012 WL 28670 (N.J.Super A.D. 2012)?

Continue reading

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

Wednesday, January 11, 2012

"State Farm Is There" Take On New Meaning In Character Evidence Case Involving Undercover Surveillance

State Farm's slogan is, "Like a good neighboor, State Farm is there." What I didn't realize until reading the recent opinion of the Sixth Circuit in State Farm Mut. Auto Ins. Co. v. Accident Victims Home Health Care Services, Inc., 2012 WL 48338 (6th Cir. 2012), is that if you're injured in a car accident and State Farm provodes you with home attendant care supervision services, State Farm will really be there. Carrie Mathison in "Homeland" there.  

Continue reading

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

Tuesday, January 10, 2012

The Loss Of Sexual Innocence: Supreme Court Of Guam Finds Trial Court Erred In Limiting Cross-Examination Of Child Rape Victim

A defendant is on trial for criminal sexual conduct based upon acts that he allegedly committed against a 10 year-old victim. Previously, a forensic examination of the alleged victim revealed scar tissue on her hymen. Before trial, the defendant failed to comply with the procedure for admitting evidence under an exception to the rape shield rule, but he later asks to introduce evidence of another sexual crime committed against the alleged victim under one of these exceptions. The trial court refuses to allow defense counsel to cross-examine the alleged victim regarding evidence of this other sexual crime, but it does allow him to present such evidence through other witnesses. Sounds like a reasonable compromise, right? In fact, maybe the court shouldn't even have allowed the introduction of this evidence at all, right? Well, not according to the recent opinion of the Supreme Court of the Territory of Guam in Guam v. Ojeda, 2011 WL 6937376 (Guam Terr. 2011).

Continue reading

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

Monday, January 9, 2012

Staying Neutral: 4th Circuit Finds Neutral Pronoun Substitution Satisfied Bruton Doctrine

The Confrontation Clause of the Sixth Amendment states that

In all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him...

Under the Bruton doctrine, the Confrontation Clause is violated, when, at a joint jury trial, the prosecution admits the statement of a non-testifying co-defendant that facially incriminates another defendant. But what if the court redacts the statement and replaces the other defendant's name with a neutral pronoun? As I have noted in prior posts (see, e.g., here), several courts have started to find that such a procedure does not violate the Bruton doctrine. The recent opinion of the Fourth Circuit in United States v. Glisson, 2012 WL 19667 (4th Cir. 2012), reveals that the Fourth Circuit is among their ranks.

Continue reading

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

Sunday, January 8, 2012

Double Secret Probation Edition: D. Conn. Limits Deposition Of Probation Officer At Plaintiff's Request

A plaintiff brings a civil action against a university. After being deposed, the plaintiff realizes that defense counsel has asked to depose his probation officer. The plaintiff argues that the deposition will have an in terrorem effect on his pursuit of his case, given that disclosure to the probation officer of certain facts of the case could subject him to criminal prosecution for violation of his probation. Is there a way for the plaintiff to prevent or at least limit the deposition of the probation officer? According to the recent opinion of the United States District Court for the District of Connecticut in Doe v. University of Connecticut, 2012 WL 12745 (D.Conn. 2012), the answer is "yes."

Continue reading

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