EvidenceProf Blog

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

Saturday, July 7, 2012

The Brady Bunch: 6th Circuit Addresses Whether 3 Types of Evidence Needed To Be Disclosed Under Brady

Pursuant to the Supreme Court's opinion in Brady v. Maryland, 373 U.S. 83 (1963), a new trial is warranted when the prosecution fails to timely disclose to the defendant material exculpatory evidence. Moreover, pursuant to the Supreme Court's opinion in Giglio v. United States, 405 U.S. 150 (1972), Brady covers material impeachment evidence. But does Brady cover (1) opinion evidence under Federal Rule of Evidence 608(a); (2) internal memoranda containing unsubstantiated allegations; or (3) fact-based conclusions under Federal Rule of Evidence 608(b)? All of these issues were addressed by the recent opinion of the Sixth Circuit in United States v. Taylor, 2012 WL 2366243 (6th Cir. 2012).

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

Friday, July 6, 2012

Oliver Stone, Savages, Conspiracy Theories, Natural Born Killers & The Admissibility Of Movies As Evidence

Today's release of "Savages" could mark the return of Oliver Stone. Since 1999's "Any Given Sunday" garnered solid reviews and box office receipts, America's favorite conspiracy theorist has struck out in the new millennium (besides a couple of decent documentaries). "World Trade Center" did OK critically and commercially but was clearly the red headed stepchild to "United 93." But "Alexander" was a disaster, "W." was utterly forgettable, and greed wasn't as good the second time around in "Wall Street: Money Never Sleeps." But has any director had as good of a 4 year stretch as Stone's 1986-1989, with Salvador (my favorite of his films), PlatoonWall StreetTalk Radio, and Born on the Fourth of July? Those five films and other such as "JFK" and "Nixon" are a big reason why Oliver Stone is still part of the national discussion and part of many of our courts' opinions. But it was Stone's 1994 movie, "Natural Born Killers," that might have led to the most interesting opinion involving the filmmaker.

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July 6, 2012 | Permalink | Comments (1) | TrackBack (0)

Thursday, July 5, 2012

Damned Lies & Statistics?: North Carolina Severely Scales Back Its Racial Justice Act

Back in May, I posted an entry about North Carolina's Racial Justice Act. At the time, I noted that

On April 20th, Superior Court Judge Greg Weeks issued a landmark ruling. That ruling, the first issued after application of North Carolina's Racial Justice Act, found that race was a significant factor in the prosecution's use of peremptory strikes in the trial of Marcus Robinson, an African-American defendant. Accordingly, Judge Weeks vacated Robinson's death sentence and replaced it with a sentence of life imprisonment without the possibility of parole.

North Carolina's Racial Justice Act, enacted in 2009, is the second of its kind in this country, coming on the heels of Kentucky's Racial Justice Act, which took effect in 1998. "But [the] American Bar Association said in a report it was unclear exactly how often [Kentucky's Act] has been used except for during the 2003 trial of an African-American man accused of kidnapping and killing his ex-girlfriend, who was white." Indeed, all indications are that Kentucky's Racial Justice Act is little more than a dead letter.

Conversely, in North Carolina, Marcus Robinson's life was spared a mere 3 years after the passage of North Carolina's counterpart, and "[n]early all of North Carolina’s 157 death row inmates have filed claims under the act." So, what explains the difference? The answer is the different types of evidence admitted under the respective acts, and, in this post, I want to make two points about this distinction.

As noted in Seth Koch and Robert P. MostellerThe Racial Justice Act and the Long Struggle with Race and the Death Penalty in North Carolina, 88 N.C. L. Rev. 2031, 2116-18 (2010),

differences between the North Carolina RJA and the Kentucky legislation of the same name reveal how the North Carolina RJA avoids indirectly limiting the defendant’s use of statistical proof. The Kentucky statute indirectly limits the defendant’s use of statistical proof by its requirement of particularity in proof linking the statistical evidence to the defendant’s specific case. By contrast, the North Carolina RJA focuses the particularity of proof on how statistical evidence supports "a claim that race was a significant factor in decisions...in the county, the prosecutorial district, the judicial division, or the State." It requires the defendant "to state with particularity how the evidence supports" the claim that race was a significant factor in decisions of the prosecutor or jury in any of these geographical areas at the time of decision, focusing the particularity requirement on proof of the impact of race in one of those areas. Thus, compared to the Kentucky statute, the North Carolina RJA imposes a particularity requirement regarding proof as to the four relevant geographical areas and not the individual defendant’s case.

When a state passes an act that leads nearly all of its death row inmates to file claims, with the first of those claims being successful, you're going to get some push back. And that's exactly what happened on Monday with North Carolina's RJA being scaled back so that it now resembles Kentucky's RJA.

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July 5, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 4, 2012

The Amazing Spider-Man, Voltaire, Percy Jackson & Alabama Rule Of Criminal Procedure 11.2(b)(2)

As a kid, Spider-Man was my favorite superhero. My first exposure to the web-slinger was watching "The Amazing Spider-Man" in syndication. Then, it was the animated "Spider-Man and His Amazing Friends" on Saturday mornings. In the early 1980s, it was always a thrill to see Spidey appear on reruns of "The Electric Company" on PBS. I used to run around the house with empty potato bags on my wrists and throw them at people while shouting, "Psst! A web!" In 2002, Sam Raimi brought your friendly neighborhood Spider-Man to the silver screen. I recall that the film opened at midnight, nine hours before my last 2L exam, and I had to resist the urge to watch it at the Hampton Town Centre to cram in some last minute studying and sleeping. That movie, of course, broke the opening weekend box office record, and its sequel, which bore the fingerprints of co-writer Michael Chabon, might be my favorite superhero film of all time (Raimi's "Darkman" might beat it by a nose). But then came the disappointing "Spider-Man" and the death of the Tobey Maguire iteration of Peter Parker.

Yesterday, Marc Webb, director of the dazzling rom-dram "(500) Days of Summer" tried to breathe new life into the franchise with the release of "The Amazing Spider-Man," starring Andrew Garfield and Emma Stone. And with the film already breaking some box office records, it is safe to say that this isn't the last that we'll see of Spider-Man on the big screen. It turn, it's likely that the recent opinion of the Court of Criminal Appeals of Alabama in Thompson v. State, 2012 WL 520873 (Ala.Crim.App. 2012), isn't the last we'll see of Spidey in our courts' opinions.

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

Tuesday, July 3, 2012

A Doctor Out On Loan: Court Finds HHS Chief's Declaration Self-Authenticating Under Rule 902(11)

Federal Rule of Evidence 902 contains a list of self-authenticating evidence, i.e., evidence that "require[s] no extrinsic evidence of authenticity in order to be admitted...." Under Federal Rule of Evidence 902(11), one type of self-authenticating evidence is a certified domestic record of a regularly conducted activity,

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

In other words, as the text of Rule 902(11) makes clear, it is an easy way for a party to authenticate records that satisfy the business records exception contained in Federal Rule of Evidence 803(6), as was the case in In re Von Kiel, 2012 WL 2328941 (Bkrtcy.E.D.Pa. 2012).

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July 3, 2012 | Permalink | Comments (1) | TrackBack (0)

Monday, July 2, 2012

An Opéra-Bouffe Air Of Unreality: 1st Circuit Finds "Savings Clause" Of Rule 902(3) Not Satisfied For Russian Convictions

Federal Rule of Evidence 902 contains a list of self-authenticating evidence, i.e., evidence that "require[s] no extrinsic evidence of authenticity in order to be admitted...." Under Federal Rule of Evidence 902(3), one type of self-authenticating evidence is the foreign public document,

A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:

(A) order that it be treated as presumptively authentic without final certification; or

(B) allow it to be evidenced by an attested summary with or without final certification. (emphasis added).

"Because the language of the Rule 902(3) exception (contained in the italicized language) was appropriated directly from Fed.R.Civ.P. 44(a)(2)...., courts are obliged to read the two rules in pari passu." United States v. De Jongh, 937 F.2d 1, 4 (1st Cir.1991). So, was this exception, the so-called "savings clause" of Rule 902(3), satisfied in Starski v. Kirzhnev, 2012 WL 2334742 (1st Cir. 2012)? 

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July 2, 2012 | Permalink | Comments (1) | TrackBack (0)