EvidenceProf Blog

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

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Saturday, July 14, 2012

Avoiding A Confrontation: 6th Circuit Becomes Latest Court To Find Nontestimonial Hearsay Beyond Bruton's Scope

Our conclusion that the contested statements were nontestimonial under Davis compels us to reject the challenges levied by Rodriguez and Cruz under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). In Bruton, the Court held that the Confrontation Clause bars the use of the confession of a nontestifying criminal defendant in a joint trial to the extent that it directly inculpates a co-defendant, though it might be otherwise admissible against the confessing defendant. Id. at 126, 88 S.Ct. 1620. "We have interpreted Bruton expansively, holding that it applies not only to custodial confessions, but also when the statements of the non-testifying co-defendant were made to family or friends, and are otherwise inadmissible hearsay." United States v. Mussare, 405 F.3d 161, 168 (3d Cir.2005) (citing Monachelli v. Graterford, 884 F.2d 749, 753 (3d Cir.1989), and United States v. Ruff, 717 F.2d 855, 857–58 (3d Cir.1983)). However, because Bruton is no more than a by-product of the Confrontation Clause, the Court's holdings in Davis and Crawford likewise limit Bruton to testimonial statements. See, e.g., United States v. Wilson, 605 F.3d 985, 1017 (D.C.Cir.2010) (holding that alleged Bruton claim did not violate the Confrontation Clause because the statements were not testimonial). Any protection provided by Bruton is therefore only afforded to the same extent as the Confrontation Clause, which requires that the challenged statement qualify as testimonial. To the extent that we have held otherwise, we no longer follow those holdings. See Monachelli, 884 F.2d at 753 (holding that Bruton applies to statements "made in a non-custodial setting to family and friends"); Ruff, 717 F.2d at 857–58 (same). And because, as discussed above, we have found the Title III recordings not to constitute testimonial hearsay, Bruton provides no solace for Rodriguez or Cruz. United States v. Berrios, 676 F.3d 118 (3rd Cir. 2012).

And, just like that, the Third Circuit, like many courts before it, decided to dispense with decades of precedent by finding that the Bruton doctrine does not apply to nontestimonial hearsay in the wake of Davis and Crawford. And, like many courts before it, the Third CIrcuit has it wrong.

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July 14, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, July 13, 2012

No Lie: California Case Reveals The State Has A Specific Rule Banning The Admission Of Polygraph Results

As I have noted before, New Mexico is the only United States jurisdiction that makes polygraph evidence presumptively admissible barring a prior stipulation by the parties. That said, in most jurisdictions, there is not a specific rule of evidence deeming polygraph results per se inadmissible; instead, courts in most jurisdictions simoly deem such results inadmissible under a variety of evidentiary rules. As the recent opinion in People v. Wherry, 2012 WL 2528304 (Cal.App. 1 Dist. 2012), makes clear, however, California does have a specific rule of evidence dealing with polygraph results.

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

Thursday, July 12, 2012

Protective Shield: Supreme Court Of Kentucky Finds Rape Shield Rule Precludes Evidence Of Victims' Prostitution

Similar to its federal counterpartKentucky Rule of Evidence 412(a), Kentucky's rape shield rule, provides that

(a)  Evidence generally inadmissible. The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c).

(1)  Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2)  Evidence offered to prove any alleged victim's sexual predisposition. 

And, like its federal counterpartKentucky Rule of Evidence 412(a) is subject to certain exceptions. So, were those exceptions triggered in Edmonds v. Commonwealth, 2012 WL 2362429 (Ky. 2012)?

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July 12, 2012 | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 11, 2012

This Is (Not) A Recording: Court Of Appeals Of Ohio Finds Police Statement Satisfies Neither Rule 612 Nor Rule 803(5)

Like its federal counterpartOhio Rule of Evidence 612 allows an attorney to use a writing (or anything else) to refresh the recollection of a witness who once had personal knowledge so that the witness can then testify based upon his refreshed recollection. And, if this doesn't work, similar to its federal counterpartOhio Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown by the testimony of the witness to have been made or adopted when the matter was fresh in his 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 State v. Trotter, 2012 WL 2354342 (Ohio App. 8 DIst. 2012), the defendant claimed that the procedure used by the prosecution in using a witness' statement to the police satisfied neither of these rules. So, was he right?

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

Tuesday, July 10, 2012

Let Sniffing Dogs Lie?: Leslie Shoebotham's Brief Of Amici Curiae In Jardines v. State, Drug-Sniffing Dogs & False Positives

Accordingly, the use of a well-trained narcotics-detection dog—one that "does not expose noncontraband items that otherwise would remain hidden from public view," Place, 462 U.S., at 707, 103 S.Ct. 2637—during a lawful traffic stop, generally does not implicate legitimate privacy interests. In this case, the dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation. Any intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement. Illinois v. Caballes, 543 U.S. 405, 409 (2005).

In sum, a "sniff test" by a drug detection dog conducted at a private residence does not only reveal the presence of contraband, as was the case in the federal "sui generis" dog sniff cases discussed above, but it also constitutes an intrusive procedure that may expose the resident to public opprobrium, humiliation and embarrassment, and it raises the specter of arbitrary and discriminatory application. Given the special status accorded a citizen's home under the Fourth Amendment, we conclude that a "sniff test," such as the test that was conducted in the present case, is a substantial government intrusion into the sanctity of the home and constitutes a "search" within the meaning of the Fourth Amendment. As such, it warrants the safeguards that inhere in that amendment—specifically, the search must be preceded by an evidentiary showing of wrongdoing. Jardines v. State, 73 So.3d 34, 49 (Fla. 2011).

So, according to the United States Supreme Court in Caballes, the use of a drug-sniffing dog around an automobile is not a "search" for Fourth Amendment purposes while, according to the Florida Supreme Court in Jardines, the use of a drug-sniffing dog at the front door of a house is a "search" for Fourth Amendment purposes requiring probable cause. This thus explains why the United States Supreme Court granted cert in Jardines to resolve the following issue: Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?

In response to the cert grant, Leslie Shoebotham, an Associate Professor at the Loyola University New Orleans College of Law has written a terrific Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, 2012 WL 2641847 (2012), arguing in favor of the conclusion of the Supreme Court of Florida that a dog sniff at the front door of a house is a Fourth Amendment "search." In many ways, the brief is an extension of Professor Shoebotham's great article, Has the Fourth Amendment Gone to the Dogs?: Unreasonable Expansion of Canine Sniff Doctrine to Include Sniffs of the Home, 88 Or. L. Rev. 829 (2009), which I wrote about here, and I was happy to be one of the professors to sign onto her brief. In this post, I will (1) detail some of the examples used by Professor Shoebotham to explain her argument and then (2) include her own summary of the brief. 

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July 10, 2012 | Permalink | Comments (2) | TrackBack (0)

Monday, July 9, 2012

It's So Juvenile: Court Of Appeals Of Minnesota Finds An Extended-Jurisdiction Juvenile Adjudication Not Covered By Rule 609(d)

Minnesota Rule of Evidence 609(d) provides that

Evidence of juvenile adjudications is not admissible under this rule unless permitted by statute or required by the state or federal constitution.

In State v. Jones, 2012 WL 2368839 (Minn.App. 2012), the defendant appealed from his conviction for being a prohibited person in possession of a firearm, arguing, inter alia, that the admission of evidence of his extended-jurisdiction juvenile adjudication was plain error. So, why did the Court of Appeals of Minnesota deny his appeal in spite of Rule 609(d)?

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

Sunday, July 8, 2012

Can I Get A Summary?: ED Mich. Opinion Sets Out 5 Preconditions To Admission Of Summary Charts Under Rule 1006

Federal Rule of Evidence 1006 provides that

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

The recent opinion of the United States District Court for the Eastern District of Michigan in United States v. Rogers, 2012 WL 2339343 (E.D.Mich. 2012), does a nice job of laying out five preconditions that a party must satisfy to admit summary charts under Rule 1006.

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July 8, 2012 | Permalink | Comments (1) | TrackBack (0)