EvidenceProf Blog

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

Saturday, August 11, 2012

Walking Contradiction: 2nd Circuit Finds Rule 608(b) Doesn't Apply To Contradiction By Other Evidence

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

As the recent opinion of the Second Circuit in United States v. Ingram, 2012 WL 3055791 (2nd Cir. 2012), makes clear, however, Rule 608(b)'s limitation on the admissibility of extrinsic evidence doesn't apply when a party is contradicting a statement made by a witness at trial.

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

Friday, August 10, 2012

Spike Lee, "Red Hook Summer," "Malcolm X," Batson, Jury Impeachment, & "Do The Right Thing"

Today sees the release of Spike Lee's "Red Hook Summer." Lee has to be up there among all-time greats in the directing game. I've seen every one of his movies, and his run of films from his debut, "She's Gotta Have It," to "Summer of Same," traversing 14 years, is pretty damned impeccable. Since then, his feature length film resume has been pretty spotty. "Bamboozled" was an ambitious miss while "25th Hour" was the definitive post-9/11 movie. "She Hate Me" was a disaster while "Inside Man" was a taut bank robbery genre piece with a sense of humor. But then, "Miracle at St. Anna" was a slog.

"Red Hook Summer" is a return to Lee's roots as it is an independent piece set in his preferred location of Brooklyn (albeit it in Red Hook rather than his usual Fort Greene). Lee's roots, of course, are in independent cinema, and his "Spike Lee's Gotta Have It: Inside Guerrilla Filmmaking" is the most inspiring work I've ever read about the creation of anything. I'm very much looking forward to "Summer" because my wife and I used to walk through Red Hook a good deal when we lived in Boerum Hill (our favorite place in the Hook being the late, great Schnack).

Spike Lee is no stranger to controversy, from his feud with Reggie Miller to his George Zimmerman tweet to his trademark lawsuit against the Spike TV network. This last dispute underscores the fact that Spike Lee and his works have played a large role in American litigation.

In Wooten v. Federal Exp. Corp., 325 Fed.Appx. 297 (5th Cir. 2009), an interracial couple brought a discrimination action against their employer, claiming, inter alia, that their co-worker made reference to them having "'jungle fever,' a phrase made famous by the Spike Lee movie of that name...." In Aalmuhammed v. Lee, 202 F.3d 1227 (9th Cir. 2000),  the Ninth Circuit rejected the claim that an Islamic scholar who had consulted with Spike Lee during the filming of "Malcolm X," qualified as an author.

And then there are the 3 Spike Lee cases involving interesting evidence/criminal procedure issues:

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August 10, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 9, 2012

Under The Shield: Court Of Appeals Of Texas Finds Rape Shield Rule Doesn't Cover Nonconsensual Acts, Still Rules Against Defendant

I have written before about court opinions concluding that rape shield rules cover only other consensual sexual acts by the alleged victims and not other nonconsensual sexual acts by alleged victims. In those posts, I have disagreed with those conclusions. I acknowledge that part of the rationale for rape shield rules is to prevent jurors from concluding that the alleged victim was promiscuous and that she likely consented to the sexual act at issue. But rape shield rules are also in place to protect the privacy of alleged victims, to protect them from embarrassment, and to encourage them to come forward with allegations of rape and sexual assault. And I think that having rape shield rules cover other nonconsensual sexual acts protects these latter interests.

In its recent opinion in Woodall v. State, 2012 WL 3089386 (Tex.App.-Texarkana), the Court of Appeals of Texas, Texarkana, found that Texas' rape shield rule does not cover other nonconsenual sexual acts, a conclusion with which I disagree. Notwithstanding this conclusion, the court deemed evidence of the alleged victim's other nonconsensual sexual act inadmissible, a conclusion with which I also disagree. Why?

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

Wednesday, August 8, 2012

Submission Guide For Online Law Review Supplements, Version 6.0, Now Available On SSRN

Back in May 2009, I posted the initial Submission Guide For Online Law Review Supplements at SSRN. At the time, online law review supplements were a relatively new trend and a rarity at top law schools. Those days are over. By my count, there are now 39 online law review supplements, including (according to U.S. News), online law review supplements at:

∙8 of the top 10 schools;

∙16 of the top 20 schools;

∙20 of the top 30 schools;

∙23 of the top 40 schools; and

∙26 of the top 50 schools.

You can download a copy of the Submission Guide For Online Law Review Supplements, Version 6.0 by clicking here. The new additions for Version 6.0 are:

Florida Law Review Forum;

Res Gestae (Fordham);

Ipsa Loquitur (Georgetown);

Furthermore (Ohio State); and

Stanford Law Review Online


August 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 7, 2012

I'm Not There: 5th Circuit Finds "Unavailable" Means Same Thing Under Confrontation Clause/Rule 804(a)(5)

Federal Rule of Evidence 804(a)(5) provides that a declarant is unavailable for purposes of the rule against hearsay if the declarant

is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:

(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or

(B) the declarant’s attendance or testimony, in the case of a hearsay exception under Rule 804(b)(2)(3), or (4).

Meanwhile, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant.

So, does "unavailable" mean the same thing for Rule 804(a)(5)/hearsay purposes and Confrontation Clause purposes? According to the recent opinion of the Fifth Circuit in United States v. Acosta-Ruiz, 2012 WL 3002533 (5th Cir. 2012), the answer is "yes."

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

Monday, August 6, 2012

Make Me Whole, Take 9: Court Of Appeals Of Minnesota Engages In Worst Rule 609 Analysis Yet

Following up on my eight previous posts (hereherehereherehereherehere, and here) on the subject, I regret that I have to report on yet another miscarriage of justice in Minnesota. Yet again, this injustice has occurred because of the nonsensical application of Minnesota Rule of Evidence 609 by the Minnesota courts. So, let's check out State v. Scott, 2012 WL 3085556 (Minn.App. 2012), which constitutes possibly the worst (mis)application of Rule 609 that I have ever seen.

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August 6, 2012 | Permalink | Comments (2) | TrackBack (0)

Sunday, August 5, 2012

No Answer: 2nd Circuit Finds An Answer At A Prior Trial Is A Prior Inconsistent Statement If Witness Refuses To Answer

Federal Rule of Evidence 801(d)(1)(A) provides that

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

So, let's say that a witness answers a question during a state court trial and then refuses to answer the same question at a subsequent federal court trial? Does his answer at the state court trial constitute a prior inconsistent statement under Rule 801(d)(1)(A)? According to the recent opinion of the Second Circuit in United States v. Truman, 2012 WL 3023804 (2nd Cir. 2012), the answer is "yes."

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