EvidenceProf Blog

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

Saturday, May 26, 2012

It's In My Report: 9th Circuit Finds Police Report Insufficient To Prove Conviction Fell Under Rule 609(a)(2)

Federal Rule of Evidence 609(a)(2) provides that

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

for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

Obviously, for certain crimes involving crimen falsi such as perjury, embezzlement, false pretenses, and larceny by trick, it is clear that the porsecution has to prove a dishonest act or false statement to secure a conviction, making such a conviction per se admissible to impeach under Rule 609(a)(2). But let's say that you have a crime such as larceny or robbery that can be accomplished through violent or deceptive means. If a party wants to use such a conviction to impeach a witness under Rule 609(a)(2), how does it go about establishing that the prosecution had to prove a dishonest act or false statement to secure the conviction. According to the opinion of the Ninth Circuit in United States v. David, 639 Fed.Appx. 639 (9th Cir. 2009), using a police report is not a proper method.

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May 26, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, May 25, 2012

Best Evidence?: 1st Circuit Asserts That Fairness Exception To Rule 1003 Only Applies In Cases Of Fraud/Manipulation

Federal Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

So, what circumstances make it unfair to admit the duplicate? According to the recent opinion of the First Circuit in Asociacion De Periodistas De Puerto Rico v. Mueller, 2012 WL 1699915 (1st Cir. 2012), the answer is "not many."

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May 25, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 24, 2012

Deal Or No Deal?: 8th Circuit Prevents Defendant From Presenting Evidence That She Rejected A Plea Bargain

Pursuant to Federal Rule of Evidence 410(4),

In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:...

a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

So, evidence of a statement made during plea discussions "is not admissible against the defendant who made the plea or participated in the plea discussions." But is evidence of such a statement admissible on behalf of the defendant who made the plea or participated in the plea discussions? According to most if not all courts, including the Eighth Circuit in its recent opinion in United States v. Alexander, 2012 WL 1660944 (8th Cir. 2012), I explain why opinions such as Alexander no longer make sense, assuming that they ever did.

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May 24, 2012 | Permalink | Comments (2) | TrackBack (0)

Wednesday, May 23, 2012

Can't Stop The Music, Take 3: Supreme Court Of California Rejects Challenge To Victim Impact Video With Flashbacks & Special Effects

Back in 2007, I posted an entry about the Supreme Court of California rejecting a Constitutional challenge to the admission of a 20-minute victim impact video with a montage of photographs of the victim's life that was accompanied by her mother's narration and Enya and Celine Dion music. In 2008, I followed up on that post with a second post concerning the United Supreme Court's refusal to grant cert in the case despite two strongly written dissents. Well, I just realized that last year, the California Supremes addressed a similar challenge to a similar victim impact video in People v. Garcia, P.3d 751 (Cal. 2011). So, was the result the same?

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May 23, 2012 | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 22, 2012

Make Me Whole, Take 8: Court Of Appeals Of Minnesota Yet Again Badly Botches The Felony Impeachment Analysis

Like its federal counterpartMinnesota Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, or (2) involved dishonesty or false statement, regardless of the punishment.

I've written on seven previous occasions about how Minnesota courts continually bungle the Rule 609(a) analysis (herehereherehereherehere, and here), and the recent opinion of the Court of Appeals of Minnesota in State v. McNeal, 2012 WL 1658819 (Minn.App. 2012), is the latest entry into the state's hall of shame.

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

Monday, May 21, 2012

Hawaii 5-0: Supreme Court Of Hawai'i Seemingly Errs in Deeming Police Report Admissible As Recorded Recollection

Like its Federal Rule of Evidence 803(5)Hawai'i Rule of Evidence 802.1(4) provides an exception to the rule against hearsay for 

A memorandum or record concerning a matter about which the witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

In its recent opinion in State v. Keohokapu, 2012 1701368 (Hawai'i 2012), the Supreme Court of Hawai'i found all of the elements of the elements of this exception satisfied. I think that one was missing.

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

Sunday, May 20, 2012

The Vermonster: Supreme Court Of Vermont Finds Exception To Confidential Marital Communications Privilege Applied In Assault Case

Like many states, Vermont has a privilege for confidential marital communications. Vermont's privilege is housed in Vermont Rule of Evidence 504(b), which provides that

Any person has a privilege to refuse to disclose and to prevent his spouse or any other person from disclosing any confidential statement, conversation, letter, or other confidential communication between such person and his spouse occurring while they were lawfully married, and to refuse to testify and prevent his spouse from testifying in any case as to any matter which in the opinion of the court would lead to a violation of marital confidence. This privilege exists whether or not the person and spouse are still lawfully married at the time at which the spouse's testimony is to be given.

And, like many states, Vermont has an exception to this privilege in cases in which a spouse is charged with a crime against the other spouse or the couple's children. As is made clear by the recent opinion of the Supreme Court of Vermont in State v. Kolibas, 2012 WL 1738979 (Vt. 2012), Vermont's exception is broader.

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May 20, 2012 | Permalink | Comments (2) | TrackBack (0)