EvidenceProf Blog

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

Saturday, August 25, 2012

Character Of The Matter: Court Of Appeals Of Kentucky Finds Generalized Character Evidence Properly Excluded

Kentucky Rule of Evidence 404(a)(1) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:        

(1) Character of accused. Evidence of a pertinent trait of character or of general moral character offered by an accused, or by the prosecution to rebut the same....

Of course, a key word in Rule 404(a)(1) is the word "pertinent." A defendant's character for peacefulness would be pertinent in a homicide trial but likely not pertinent in a fraud trial. And, at that fraud, trial, the defendant's character for truthfulness would be pertinent while his character for violence would not be. As the recent opinion of the Court of Appeals of Kentucky in Crabtree v. Commonwealth, 2012 WL 3538316 (Ky.App. 2012), makes clear, however, a character witness' generalized claim that the defendant is a good person or has a good reputation in the community is never pertinent character evidence under Rule 404(a)(1).

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August 25, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, August 24, 2012

No One But The Bailiff: Is A Bailiff's Comment That The Defendant Fired The Best Criminal Attorney In Town Prejudicial?

Similar to its federal counterpartTexas Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.

So, let's say that jurors are standing in a courthouse hallway when one juror asks, "Why did [the defendant] hire these dummies [(i.e., defense counsel)]?" And let's say that the bailiff responded, "He had the best criminal attorney in the city and he fired him." Does the bailiff's statement provide the proper predicate for jury impeachment under Rule 606(b)? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Seaton v. State, 2012 WL 322677 (Tex.App.-San Antonio 2012), the answer is "no." I disagree.

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August 24, 2012 | Permalink | Comments (1) | TrackBack (0)

Thursday, August 23, 2012

Forfeiture From The Black Whole: 4th Circuit Applies Forfeiture By Wrongdoing Doctrine Via Pinkerton

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

Meanwhile, pursuant to the Supreme Court's opinion in Pinkerton v. United States, 328 U.S. 640 (1946),  person is "liable for substantive offenses committed by a co-conspirator when their commission is reasonably foreseeable and in furtherance of the conspiracy." 

I have seen Rule 804(b)(6) cited in many cases and Pinkerton cited in many cases, but never in the same case...that is, until the recent opinion of the Fourth Circuit in United States v. Dinkins, 2012 WL 3292417 (4th Cir. 2012).

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August 23, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 22, 2012

Can I Get A Summary?: 6th Circuit Finds That A Properly Admitted Summary Is Not Hearsay

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 placement of Rule 1006 in Article X of the Federal Rules of Evidence means that the Rule is a way of satisfying the Best Evidence Rule contained in Federal Rule of Evidence 1002, which provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

And what that means is that Rule 1006 does not provide an an exception to the rule against hearsay, which is contained  in Article VIII of the Federal Rules of Evidence (see my prior post on the subject). In other words, if a summary, chart, or calculation contains inadmissible hearsay, it is just as inadmissible as a hearsay not contained in a summary, chart, or calculation. So, what are we to make of the recent opinion of the Sixth CIrcuit in Alliant Tax Credit Fund 31-A, Ltd. v. Murphy, 2012 WL 3519463 (6th Cir. 2012).

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August 22, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2012

Confronting The Truth: Appeals Court Of Massachusetts Finds Colloquy Not Required Before Waiving Confrontation Right

A defendant can only plead guilty and waive his right to a jury if there is a colloquy between the judge and the defendant to determine the the waiver is knowing, voluntary, and intelligent. So, should a similar colloquy be required when the defendant waives his right to confrontation? According to the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Myers, 2012 WL 2877376 (Mass.App.Ct. 2012), the answer is "no."

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

Monday, August 20, 2012

Call The Doctor: Does Rule 803(4) Apply To Statements Made To The Sexual Assault Response Team?

Like its federal counterpartAlaska Rule of Evidence 803(4) provides an exception to the rule against hearsay for

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.

So, what happens when an alleged sexual assault victim makes statements to a person working as part of a quasi-medical, quasi-investigatory body? Are those statements made for purposes of diagnosis or treatment, or are they made for purposes of evidence-collection and prosecution? The answer is probably a bit of both, which is why, as I've noted, such statements have created problems for courts under Rule 803(4). This was certainly the case with the recent opinion of the Supreme Court of Alaska in Davison v. State, 2012 WL 3240111 (Alaska 2012).

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

Sunday, August 19, 2012

Jet Ski Or Not Jet Ski, That Is The Question, But Is Wikipedia Equipped To Answer It?

The subject is well-illuminated in that great repository of contemporary wisdom, Wikipedia....Fire Ins. Exchange v. Oltmanns, 2012 WL 3510440 (Utah App. 2012).

Me (doing my best Joe Pesci): You were serious about that?

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