EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, September 1, 2012

There's No Business Like Court Business: 9th Circuit Refuses To Take Judicial Notice In Marilyn Monroe Case

Federal Rule of Evidence 201(b) provides that

The court may judicially notice a fact that is not subject to reasonable dispute because it:  

(1) is generally known within the trial court’s territorial jurisdiction; or  

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

It is well established under Federal Rule of Evidence 201(b) that a court may take judicial

"notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue." St. Louis Baptist Temple, Inc. v. FDIC, 605 F.2d 1169, 1172 (10th Cir.1979); see also Colonial Penn Ins. Co. v. Coil, 887 F.2d 1236, 1239 (4th Cir.1989); E.I. DuPont de Nemours & Co., Inc. v. Cullen, 791 F.2d 5, 7 (1st Cir.1986); Coney v. Smith, 738 F.2d 1199, 1200 (11th Cir.1984); Green v. Warden, 699 F.2d 364, 369 (7th Cir.), cert. denied, 461 U.S. 960, 103 S.Ct. 2436, 77 L.Ed.2d 1321 (1983); Bryant v. Carleson, 444 F.2d 353, 357 (9th Cir.) (court took judicial notice of proceedings and filings in other courts, including a decision of the California Supreme Court issued while the parties' appeal in the federal case was pending), cert. denied, 404 U.S. 967, 92 S.Ct. 344, 30 L.Ed.2d 287 (1971).

But what if the other proceedings do not have a direct relation to the matters at issue in a case? That was the question addressed by the Ninth Circuit in its recent opinion in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 2012 WL 3743100 (9th Cir. 2012).

Continue reading

September 1, 2012 | Permalink | Comments (3) | TrackBack (0)

Friday, August 31, 2012

Make Me Whole, Take 10: Court Of Appeals of Minnesota Issues Most Ludicrous Rule 609(a)(1) Ruling Yet

Another day. Another terrible decision by the Court of Appeals of Minnesota under Minnesota Rule of Evidence 609(a)(1). The court's most recent exercise in lunacy is State v. Heard, 2012 WL 3263775 (Minn.App. 2012). If I am reading this most recent opinion correctly, there is (almost) no set of facts under which any of the five factors considered under Rule 609(a)(1) will favor the defendant. So, congratulations, Court of Appeals of Minnesota. You have finally suceeded in making Rule 609(a)(1) a complete mockery of itself.

Continue reading

August 31, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 30, 2012

Submission Guide for Online Law Review Supplements, Version 6.1, Now Available On SSRN

Thanks to Allen Rostron, I have some additions to my Submission Guide for Online Law Review Supplements. These additions are:

Arizona State Law Journal Blog;

Discourse (Drake);

On Remand (New England)

Dicta (Texas)

Utah OnLaw

Tolle Lege (Villanova)

The newest version of the Guide is now available on SSRN.

-CM

August 30, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 29, 2012

A Certain Relation: 3rd Circuit FInds Only "Close Relatives" Of Principles Need To Be Excluded As Jurors

It is well established that a juror cannot be seated if the juror is some degree of relation to one of the principle in the case, i.e., a party or an attorney. But how closely related does the jurors need to be to a principle for the seating of that juror to automatically mean that the opposing party was denied the right to a trial by an impartial jury? That was the question addressed by the Third Circuit in United States v. Mitchell, 2012 WL 3171563 (3rd Cir. 2012).

Continue reading

August 29, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 28, 2012

My New Essay: Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause

As I noted on Sunday, what started as a blog post on the Ex Post Facto Clause and the retroactive application of Federal Rules of Evidence 413 and 414 and state counterparts. That essay, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause, is now available on SSRN. Here is the abstract:

In Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with the Ex Post Facto Clause, including “[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.” But, in its opinion in Carmell v. Texas, the Court determined that ordinary rules of evidence do not violate the Clause because they (1) are “evenhanded, in the sense that they may benefit either the State or the defendant in a given case;” and (2) “do not at all subvert the presumption of innocence….”

Federal Rules of Evidence 413 and 414 as well as state counterparts, however, are neither evenhanded nor consistent with the presumption of innocence. Instead, these rules can only be used to benefit the prosecution, and they subvert the traditional presumption of innocence maintained by the propensity character evidence proscription. Accordingly, courts across the country have erred in finding that the retroactive application of these rules does not violate the Ex Post Facto Clause.

-CM

August 28, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, August 27, 2012

Sequestered In Lexington: Professor Richard Underwood On Federal Rule Of Evidence 615

Federal Rule of Evidence 615 is a funny little rule of evidence. It 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.

In Geders v. United States, 425 U.S. 80 (1976), the Supreme Court observed that the practice of sequestering witnesses, which goes back to "our inheritance of the common Germanic law," serves two purposes: it "exercises a restraint on witnesses 'tailoring' their testimony to that of earlier witnesses; and it aids in detecting testimony that is less than candid." But is Federal Rule of Evidence 615 in fact a rule of witness sequestration, or is it merely a rule of witness exclusion? That's the topic taken up in the forthcoming article, Following the Rules:  Exclusion of Witnesses, Sequestration and "No-Consultation Orders, by Richard Underwood, a professor at the University of Kentucky College of Law.

Continue reading

August 27, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, August 26, 2012

Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause

Sometimes a blog post runs a bit long. In the case of State v. Kibbee, 815 N.W.2d 872 (Neb. 2012), what initially started as a blog post turned into an essay. This blog post will outline my basic arguments against the decision in Kibbee, and I will post the link to my essay on SSRN later this week. Any thoughts and comments on either would be appreciated either here or e-mailed to Mille933@law.sc.edu:

In State v. Kibbee, 815 N.W.2d 872 (Neb. 2012), Eddie Kibbee brought an Ex Post Facto Clause challenge to his convictions for first-degree sexual assault and felony child abuse. Article I, section 9 of the United States Constitution states in relevant part that “[n]o Bill of Attainder or ex post facto Law shall be passed,” and, in its opinion in Calder v. Bull, the Supreme Court recognized four types of laws that cannot be applied retroactively consistent with this Ex Post Facto Clause:

1st. Every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action. 2d. Every law that aggravates a crime, or makes it greater than it was, when committed. 3d. Every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed. 4th. Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.

Kibbee's claim was that the trial court erred by retroactively applying Nebraska Rule of Evidence 414(1), which provides that

In a criminal case in which the accused is accused of an offense of sexual assault, evidence of the accused's commission of another offense or offenses of sexual assault is admissible if there is clear and convincing evidence otherwise admissible under the Nebraska Evidence Rules that the accused committed the other offense or offenses. If admissible, such evidence may be considered for its bearing on any matter to which it is relevant.

Nebraska Rule of Evidence 414(1) is thus similar to Federal Rules of Evidence 413 and 414, which allow for the admission of prior acts of sexual assault and child molestation by criminal defendants. Kibbee claimed that Rule 414(1) was clearly a law that alters the legal rules of evidence, meaning that it was the fourth type of law that cannot be applied retroactively consistent with the Ex Post Facto Clause. So, why, like every defendant before him in a similar case, did he lose?

Continue reading

August 26, 2012 | Permalink | Comments (0) | TrackBack (0)