EvidenceProf Blog

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

Saturday, August 18, 2012

Burying The Lead?: Judge Posner Delivers An Amusing Opinion Regarding Leading Questions

A leading question is a question phrased in such a way as to hint at the answer the witness should give. Jas Brar, Note, "Friend or Foe? Responsible Third Parties and Leading Questions," 60 Baylor L.Rev. 261, 264–67 (2008). The question is calculated to "lead" the witness to the answer desired by the lawyer. There is no blanket prohibition of such questions. They are permissible when used against adverse witnesses, usually in cross-examination, or when used with friendly witnesses to move direct examination along rather than to elicit testimony damaging to the opposing party that the witness might not have given in response to a neutral question. Fed.R.Evid. 611(c)United States v. Cephus, 2012 WL 2609316 (7th Cir. 2012). 

If you want a colorful case to explain the nitty gritty of leading questions in detail, you need look no further than Judge Posner's opinion for the Seventh Circuit in Cephus.

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August 18, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, August 17, 2012

Nonconfrontational?: 11th Circuit Implies That Former Testimony Under Rule 804(b)(1) Can Violate Confrontation Clause

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay  for

Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

A prerequisite for such former testimony being admitted is that the declarant be "unavailable" for trial under Federal Rule of Evidence 804(a).

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.

Based upon my readings of Rule 804(b)(1) and Crawford, I don't see how the admission of former testimony under Rule 804(b)(1) could ever violate the Confrontation Clause. But the recent opinion of the Eleventh Circuit in United States v. Santos, 2012 WL 2913504 (11th Cir. 2012), seems to imply that it could.

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

Thursday, August 16, 2012

About Schmidt: Court Of Appeals Of Texas Notes That Rule 607 Killed The Common Law Voucher Rule

Like its federal counterpartTexas Rule of Evidence 607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

And what this means is that the Texas Rule, like the federal Rule, abandons the old "voucher rule," under which a party vouched for the credibility of the witnesses it called and could not impeach their testimony. This point is made clear by the recent opinion of the Court of Appeals of Texas, Amarillo, in Schmidt v. State, 2012 WL 2888213 (Tex.App.-Amarillo 2012), which also shows why the voucher rule was abandoned.

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

Wednesday, August 15, 2012

Subpoena Blues: 8th Circuit Finds That Defendant Can't Interrogate Rule 413 Witnesses Dismissed From Subpoena

Federal Rule of Evidence 413(a) provides that

In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.

So, let's ay that an FBI agent meets with two women, both of whom claim that they were sexually assaulted by the defendant. As a result of those meetings, the defendant is charged with aggravated sexual abuse of a minor against one of the women, with the other woman being subpoenaed to testify against the defendant pursuant to Rule 413(a). If the second woman recants at least part of her account the evening before trial, should the defendant be allowed to call the second woman and interrogate her at trial? According to the recent opinion of the Eighth Circuit in United States v. Frederick, 2012 WL 2579686 (8th Cir. 2012), the answer is "no."

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

Tuesday, August 14, 2012

My New Article: Justice of the Peace?: Why Federal Rule of Evidence 404(a)(2)(C) Should be Repealed

Yesterday, I posted my new article, Justice of the Peace?: Why Federal Rule of Evidence 404(A)(2)(C) Should Be Repealed, on SSRN. Here is the abstract:

In two 2012 opinions, Commonwealth v. Bedford and State v. Williams, courts rejected appeals by convicted homicide defendants sentenced to life imprisonment. Each defendant claimed that his victim was the first aggressor, prompting the prosecution to present character evidence concerning the victim’s character for peacefulness even though neither defendant claimed that his victim was generally a violent person. The prosecution in both cases presented this character evidence under a state counterpart to Federal Rule of Evidence 404(a)(2)(C), a frequently applied exception to the general rule that propensity character evidence is inadmissible.  

Rule 404(a)(2)(C) and its state counterparts are thus the one exception to the general “Pandora’s box” theory which deems propensity character evidence inadmissible in any criminal trial unless the defendant decides to inject character evidence into trial by presenting evidence of his good character and/or evidence of the victim’s bad character. The Rule is also the rare exception to our evidentiary and constitutional framework that almost always treats criminal defendants at least as well as, and usually better than, their civil counterparts. Worst of all, this anomalous Rule treats criminal defendants worse than civil defendants in the very type of case in which the accused has the most at stake and faces the largest deployment of investigatory and prosecutorial resources. Accordingly, this article argues for the repeal of Federal Rule of Evidence 404(a)(2)(C) and state counterparts.  

And thoughts or comments on it would be appreciated and can be sent to: Mille933@law.sc.edu.

I also posted my recent essay, No Expertise Required: How D.C. Has Erred in Expanding its Expert Testimony Requirement, which appeared in the Rutgers Law Record, on SSRN. Here is the abstract:

In addressing an appeal by Allen Iverson from a negligent supervision verdict against him, the United States Court of Appeals for the District of Columbia noted that the former NBA star’s “argument stem[med] from a peculiar aspect of common law negligence in the District of Columbia.” That peculiar aspect is D.C.’s expert testimony requirement, which requires expert testimony to establish the pertinent standard of care unless the subject in question is within the realm of common knowledge and everyday experience of the jurors. Such a requirement is not anomalous in the professional malpractice context, and the Iverson court claimed that D.C.’s requirement was in fact born out of such cases.  

According to the court, though, the D.C. Court of Appeals has deviated from the norm by “[r]ecently…requir[ing] expert testimony in a wider variety of cases,…even those that might initially seem to fall within jurors’ common knowledge.” Such cases include disputes regarding the application of hair relaxer, the placement of monkey bars eight feet above hard packed mud, and the failure to remove a dead, prominently leaning tree. In each case, the result is the same: The D.C. Court of Appeals finds that the plaintiff cannot recover without expert testimony concerning the pertinent standard of care. This essay argues that D.C. has improperly expanded its expert testimony requirement and should circumscribe it to malpractice cases and trials involving truly technical matters.


August 14, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, August 13, 2012

What's In Your Wallet?: Court Of Appeals Of Iowa Finds Notes In Wallet Not Extraneous Prejudicial Information

A defendant is charged with homicide by vehicle, eluding, and operating a motor vehicle without the owner's consent. At trial, the prosecution offers into evidence "a black wallet with miscellaneous papers in it." It turns out that, unbeknownst to anyone, those papers are damaging to the defendant's case. Indeed, jurors come forward after trial and claim that they used the papers during deliberations. Do those papers constitute "extraneous prejudicial information" and thus a proper predicate for jury impeachment? According to the recent opinion of the Court of Appeals of Iowa in Pinegar v. State, 2012 WL 3026393 (Iowa App. 2012), the answer is "no."

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August 13, 2012 | Permalink | Comments (2) | TrackBack (0)

Sunday, August 12, 2012

The Areas Of My Expertise: Supreme Court Of Vermont Finds Police Officer & Counselor Qualified To Testify About Rape Trauma Syndrome

Although there is not a set definition of [Rape Trauma Syndrome], it generally holds that victims often are confused and disoriented in the immediate wake of a rape or sexual assault, resulting in delayed reporting when the victim finally reconstructs the nature of the event. Colin Miller, A Shock to the System, 12 Wm. & Mary J. Women & L. 49, 71 (2005)

Courts generally agree that testimony concerning Rape Trauma Syndrome ("RTS") by a qualified expert is admissible under Federal Rule of Evidence 702, which provides that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:  

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;  

(b) the testimony is based on sufficient facts or data;  

(c) the testimony is the product of reliable principles and methods; and  

(d) the expert has reliably applied the principles and methods to the facts of the case.

The question addressed by the Supreme Court of Vermont in its recent opinion in State v. Hammond, 2012 WL 2620529 (Vt. 2012), is who qualifies as an RTS expert under Vermont's counterpart to Federal Rule of Evidence 702.

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August 12, 2012 | Permalink | Comments (0) | TrackBack (0)