EvidenceProf Blog

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

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Saturday, July 21, 2012

No Lie, Take 2: Supreme Court Of Vermont Declares Polygraph Evidence Per Se Inadmissible Under Rule 403

Previously, I have noted that polygraph test results are inadmissible in every United States jurisdiction except New Mexico barring a prior stipulation by both parties. It turns out, though, that Vermont courts had never addressed the issue until the recent opinion of the Supreme Court of Vermont in Rathe Salvage, Inc. v. R. Brown & Sons, Inc., 2012 WL 975429 (Vt. 2012). So, how did the court rule?

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

Friday, July 20, 2012

The Dark Knight Rises, Again: D.C. Circuit Case Involves Drunk Man Dressed As Batman & Alleged Employee Admissions

Da Da Da Da DA DA BATMAN! As with a large swath of the country, I've been hooked on Batman since an early age. It started with watching the campy Adam West series from the 1960s in syndication as a kid. My brother and I were the Dynamic Duo of Batman and Robin (in Underoos) for Halloween. Then, it was all about Tim Burton's "Batman" movie, which (as was the case in many households), was the first movie that we bought on VHS. Soon thereafter, I got the Batman video game, which was in constant rotation on my NES. Many people found "Batman Returns" too dark, but I thought that it was better than the original, with Michelle Pfeiffer being the perfect Catwoman, Danny DeVito being suitably creepy as the Penguin, and Christopher Walken doing his best Christopher Walken. But then, Joel Schumaker deep sixed the franchise with the silly "Batman Forever" and the deplorable "Batman & Robin."

Eight years later, Christophen Nolan (the genius director behind movies such as "Memento" and "Inception") would resuscitate the Caped Crusader with the terrific "Batman Begins" and then follow it up with the Heat-ish "The Dark Knight" (which I saw them filming on my way to work for a while). Now, Nolan has completed his Batman trilogy with "The Dark Knight Rises," with many speculating that the villain of Bane will have an effect on the Presidential election. If that's the case, it wouldn't be the first time that the Batman will have an effect on a governmental institution. Instead, the Caped Crusader has long been a part of our nation's judicial system as was the case in Belton v. Washington Metropolitan Area Transit Authority, 20 F.3d 1197 (D.C. Cir. 1994).

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July 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, July 19, 2012

Who Are You?: Court Of Criminal Appeals Of Tennessee Find's Juror's Knowledge Of Defendant Doesn't Require New Trial

A defendant, who had previously been convicted of a felony drug offense, is charged with being a felon in possession of a firearm. During voir dire a prospective juror states that he did not know the defendant and is selected from the venire. After the defendant is convicted, the defendant moves for a new trial and calls the juror, who testifies that he in fact knew that the defendant "had spent a good deal of time in the penitentiary" but didn't recognize the defendant until after he was selected as a juror. Should the court find that the defendant is entitled to a new trial.

The defendant, who had previously been convicted of a felony drug offense, was convicted as a felon in possession of a firearm after a jury trial and sentenced to six years in prison. According to the Court of Criminal Appeals of Tennessee in State v. Taylor, 2012 WL 2308088 (Tenn.Crim.App. 2012), the answer is "no."

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July 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 18, 2012

Hold On Luce-ly: Court Of Appeals Of Georgia Finds Luce Applies To 10+ Year Old Convictions

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions under Federal Rule of Evidence 609(a) in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. So, does the same reasoning apply under Federal Rule of Evidence 609(b) and state counterparts? According to the recent opinion of the Court of Appeals of Georgia in Warbington v. State, 2012 WL 2580798 (Ga.App. 2012), the answer is "yes."

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July 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 17, 2012

Encyclopedia Brown And The Case Of The Third-Party Attorney-Client Privilege

When I was preparing my post about Ridley Scott last month, I was reminded that the filmmaker was once slated to direct an Encyclopedia Brown movie. Maybe the financial failure of the "Nancy Drew" movie scared him off or maybe be was frightened by the fact that the HBO series about the boy detective was cancelled after only 8 episodes. Indeed, the HBO series led to a lawsuit, with Encyclopedia Brown Productions president and controlling shareholder Howard David Deutsch being "dissatisfied with HBO's effort to publicize the episodes." Encyclopedia Brown Productions v. Home Box Office, Inc., 1998 WL 734355 (S.D.N.Y. 1988). Personally, I think that Deutsch had a pretty good argument. That series aired in 1989, when I was thirteen and a huge Encyclopedia Brown fan. My brother and I used to read the books regularly (my personal favorite was Encyclopedia Brown and the Case of the Buried Treasure) as did many other kids in our neighborhood. We had HBO at the time, and I don't remember hearing a word about the series. And now, from the looks of it, we won't hear another word about the proposed Ridley Scott film. Apparently, it is in development hell along with the planned Hardy Brothers movie with Ben Stiller and Tom Cruise.

Yesterday, the world learned of the death of Encyclopedia Brown author Donald J. Sobol. With his passing, I thought that I would discuss an interesting case involving Sobol, Encyclopedia Brown, and attorney-client privilege. 

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July 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, July 16, 2012

Uninsured: Supreme Court Of Iowa Finds State Of Mind Exception Doesn't Apply To Statements Of Memory Concerning Life Insurance Change

Like its federal counterpartIowa Rule of Evidence 5.803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant’s will.

So, this "state of mind" hearsay exception only applies to a statement of memory or belief if it "relates to the execution, revocation, identification, or terms of declarant’s will." But what about a statement related to the designation of a beneficiary of a life insurance policy? That was the question addressed by the Supreme Court of Iowa in its recent opinion in Pitts v. Farm Bureau Life Ins. Co., 2012 WL 2604622 (Iowa 2012).

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July 16, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, July 15, 2012

Avoiding A Confrontation, Take 2: Court Of Appeals Of Washington Finds Nontestimonial Hearsay Doesn't Trigger Bruton

Following up on yesterday's post, the recent opinion of the Court of Appeals of Washington, Division 1, in State v. Brown, 2012 WL 1255168 (Wash.App. Div.1 2012), gives us yet another example of a court erroneously concluding that nontestimonial hearsay is beyond the scope of the Bruton doctrine.

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July 15, 2012 | Permalink | Comments (0) | TrackBack (0)