EvidenceProf Blog

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

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Saturday, September 8, 2012

Class Act: Eastern District Of New York Finds Rule Against Hearsay Applies At Class Certification Stage

Outside the Second Circuit, courts are split as to how stringently to apply the rules of evidence at the class certification stage. See, e.g., Serrano v. Cintas Corp., Civ Nos. 04–40132, 06–12311, 2009 WL 910702, at *3 (E.D.Mich. Mar.31, 2009) (declining to strike declarations in connection with motion to certify, despite admissibility challenges; holding that it was appropriate to consider all evidence at the class certification stage, while deferring admissibility determinations); Lewis v. First Am. Title Ins. Co., 265 F.R.D. 536, 552–53 (D.Idaho 2010) (noting split, but deciding that, for class certification purposes, court would not strictly apply evidentiary rules). Lujan v. Cabana Management, Inc., 2012 WL 3062017 (E.D.N.Y. 2012).

So, how did the Eastern District of New York rule in Lujan?

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September 8, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, September 7, 2012

Common Law: Why Drew Peterson Shouldn't Be Able To Appeal His Verdict Based On The Unconstitutionality of "Drew's Law"

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Yesterday, a jury finally convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Many articles discussing the verdict made reference to hearsay statements by Savio and Stacy Peterson (Drew Peterson's fourth wife) being admitted under "Drew's law," a state counterpart to Federal Rule of Evidence 804(b)(6) enacted specifically for the Peterson prosecution (see, e.g., here and here). Indeed, many articles discussed how these hearsay statements were the key pieces of evidence in a trial that was otherwise based upon circumstantial evidence (see, e.g., this article with quotes from a holdout juror). But here's the thing: Unless I'm missing something, these statements were not admitted pursuant to "Drew's law," contained in 725 ILCS 5/115-10.6.

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September 7, 2012 | Permalink | Comments (14) | TrackBack (0)

Thursday, September 6, 2012

Your Prejudice, I Presume?: 7th Circuit Rejects Indiana's Presumption Against Jury Prejudice

A defendant is on trial for neglecting and murdering his three year-old stepson. After he is convicted, the defendant learns that (a) before his trial, a juror's son informed the juror that the defendant was likely innocent, but that (b) during the trial, the juror found out that his son and several co-inmates changed their mind about the defendant and thought him guilty. The juror then shared this information with at least some other jurors. If the defendant appeals his verdict, is the presumption that he was unfairly prejudiced by this extraneous prejudicial information or that he was not prejudiced by this information. In Indiana, it used to be the latter, but thankfully that is no longer the case given the recent opinion of the Seventh Circuit in Hall v. Zenk, 2012 WL 3711879 (7th Cir. 2012).

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September 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, September 5, 2012

Informer, You Know Say: NJ Court Finds that Identity Of Confidential Informant Didn't Have To Be Disclosed

A defendant is charged with possession of cocaine with intent to distribute. That cocaine was seized pursuant to a search warrant obtained in large part on the basis of information from a confidential informant.  After the defendant is convicted, he appeals, claiming that the identity of the confidential informant should have been disclosed so that he could mount a challenge to the search warrant. Does he have a winning argument? As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Colon, 2012 WL 3705087 (N.J.Super.A.D. 2012), the answer is likely "no." But did the court's analysis make any sense?

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

Tuesday, September 4, 2012

Free Musketeer? Dezmine Wells & The Due Process Implications Of Student Disciplinary Proceedings

When I was at the University of Virginia, I served as a judge on the First-Year Judiciary Committee and later as a student attorney for the University Judiciary Committee. During my time on those committees, I saw students found "not guilty" in criminal courts found "guilty" by the judiciary committees. And, during my time on those committees, I saw students found "guilty" by criminal courts found "not guilty" by the judiciary committees. (In fact, I secured a "not guilty" verdict in one of these cases). When I look back on my experience, I realize that the whole student justice thing is kind of crazy. Student attorneys and student judges decide the fate of other students while using a lower burden of proof and nothing really resembling the rules of evidence. Does such student justice constitute due process, especially when it results in the dismissal of a student? And what about when that student is found "not guilty" by the criminal justice system? Or, worse yet, what about when that student is not even indicted by a grand jury? This brings us to the case of Dezmine Wells.

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September 4, 2012 | Permalink | Comments (1) | TrackBack (0)

Monday, September 3, 2012

Silence Please: Court Of Appeals Of Texas Applies Silent Witness Theory Of Authentication To "Jumbled Mess"

A defendant is convicted of driving while intoxicated. This conviction is based in large part on the admission of a DWI videotape recorded at the scene of the accident. "Admittedly, the videotape was a 'jumbled mess' because it did not operate correctly as it was produced from an older model dashboard camera." Was the videotape properly authenticated? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Hines v. State, 2012 WL 3731646 (Tex.App.San Antonio 2012), the answer is "yes." I disagree.

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

Sunday, September 2, 2012

Deep Impact: 9th Circuit Concludes That Retroactive Application Of Victim Impact Law Isn't Ex Post Facto

Article I, Section 9 of the Constitution states in relevant part that

No bill of attainder or ex post facto Law shall be passed.

And, Article I, Section 10 states in relevant part that 

No state shall enter into any ex post facto law.

Pursuant to the Supreme Court's opinion in Calder v. Bull, these Ex Post Facto clauses prohibit the retroactive application of, inter alia

"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."

Moreover, "[w]hile the Ex Post Facto Clause applies directly to legislative acts, the Fourteenth Amendment extends Article 1, Section 10's prohibition on ex post facto laws to include judicial decisions." So, can a new law allowing for the admission of victim impact evidence be applied retroactively consistent with the Ex Post Facto clauses? According to the recent opinion of the Ninth Circuit in Gentry v. Sinclair, 2012 WL 3667319 (9th Cir. 2012), the answer is "no." "yes." I disagree.

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September 2, 2012 | Permalink | Comments (5) | TrackBack (0)