Saturday, January 21, 2012
Unsequestered Witness: Southern District Of Florida Finds No Need For New Trial Despite Rule 615 Violation
Federal Rule of Evidence 615 provides that
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
(d) a person authorized by statute to be present.
So let's say that this witness sequestration rule is violated. What should the court do? According to the recent opinion of the United States District Court for the Southern District of Florida in United States v. McQueen, 2012 WL 163885 (S.D. Fla. 2012), there are 3 options.
Friday, January 20, 2012
The Interpreter: 9th Circuit Finds Interpreters Don't Need To Give An Oath Before Testifying At A Trial
Federal Rule of Evidence 603 states that
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
So, before an interpreter may translate the testimony of a witness, he must give an oath or affirmation. Well, not exactly, according to the recent opinion of the Ninth Circuit in United States v. Solorio, 2012 WL 161843 (9th Cir. 2012).
Thursday, January 19, 2012
Federal Rule of Evidence 706(a) provides that
On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.
As the recent opinion of the Third Circuit in Born v. Monmouth County Correctional Inst., 2012 WL 130697 (3rd Cir. 2012), males clear, courts are under no affirmative obligation to appoint experts under Rule 706(a). But as the opinion also makes clear, some courts have done some interesting things with the Rule.
Wednesday, January 18, 2012
Federal Rule of Evidence 410(4) provides that
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:
(4) 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.
It is well established that the rules of evidence generally do not apply at the sentencing stage of trial. But does this hold true with regard to Rule 410(4)? Let's take a look at the recent opinion of the Eleventh Circuit in United States v. Davis, 2012 WL 118444 (11th Cir. 2012).
Tuesday, January 17, 2012
I like "The Good Wife." I've written about it on this blog several times (see here, here, and here). I think that the show generally gets the law right more than most other legal shows. That certainly wasn't the case, though, with the show's most recent episode, "Bitcoin for Dummies," which contained the most egregious (non)application of the rule against hearsay that I've ever seen in a legal movie or TV show.
Monday, January 16, 2012
Living Social: Supreme Court Of Alaska Finds Medical Hearsay Exception Applies To Statements To Social Worker
Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.
But does Rule 803(4) apply to statements made to a clinical social worker? According to the recent opinion of the Supreme Court of Alaska in Martha S. v. State, 2012 WL 104471 (Alaska 2012), the answer is "yes."
Sunday, January 15, 2012
Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
The theory behind this public records exception to the rule against hearsay is "the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record." What this makes clear is that the public records exception only covers statements made by public officials in public records, not statements made to public officials by non-public officials that are recorded in public records, as is made clear by the recent opinion of the United States District Court for the District of Puerto Rico in Echevarria v. Caribbean Aviation Maintenance Corp., 2012 WL 89839 (D.Puerto Rico 2012).