EvidenceProf Blog

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

Saturday, September 22, 2012

Unauthorized Transfer, Take 5: Court Of Criminal Appeals Of Tennessee Rejects Transferred Intent Doctrine Of Forfeiture By Wrongdoing

In my recent writings about the doctrine of forfeiture by wrongdoing, I have focused upon cases that have either explicitly or implicitly applied transferred intent principles to the doctrine. I thought that with today's post, I would focus upon a case that (kind of) falls on the other side of the issue. So, let's take a look at the opinion of the Court of Criminal Appeals of Tennessee in State v. Ivy, 2004 WL 3021146 (Tenn.Crim.App. 2004).

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September 22, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, September 21, 2012

Doing Bad All By Itself: 9th Circuit Finds Deportation Of Defense Witness Triggered Forfeiture By Wrongdoing

In my recent posts on forfeiture by wrongdoing, I've been focused upon cases in which the defendant causes the unavailability of a prospective witness, meaning that he has forfeited his hearsay and Confrontation Clause objections to the admission of that witness' statements. As the Advisory Committee Note to Federal Rule of Evidence 804(b)(6) makes clear, however, "[t]he rule applies to all parties, including the government." For an example of a case in which the government forfeited its right to object to the defendant's admission of hearsay from a declarant whom the government rendered unavailable, consider the recent opinion of the Ninth Circuit in United States v. Leal-Del Carmen, 2012 WL 4040253 (9th Cir. 2012).

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

Thursday, September 20, 2012

Available For A Limited Time: Court Of Appeals Of North Carolina Applies Forfeiture By Wrongdoing To Aborted Testimony

The opinion of the Court of Appeals of North Carolina in State v. Weathers, 724 S.E.2d 114 (N.C.App. 2012), was the first North Carolina opinion to apply the doctrne of forfeiture by wrongdoing, and there's something pretty interesting about the opinion:  The statements admitted under the dotrine consisted of the witness' aborted testimony at trial.

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September 20, 2012 | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 19, 2012

Essay Of Interest: Valena Beety's The Case of Trayvon Martin and the Need for Eyewitness Identification Reform

You know that something is having a deep impact when it starts coming up in conversations that are at most tangentially related to it. You're eating at a restaurant serving some cajun food, and you overhear people at an adjacent table engaging in a heated discussion about the movie "Beasts of the Southern Wild." You're at a university-wide orientation and talking to the new curator at the Moving Image Research Collections, and the topic somehow turns to "Beasts of the Southern Wild." You're watching a New Orleans Saints football game, and what comes up? You guessed it: "Beasts of the Southern Wild." In these situations, when you can almost feel a palpable buzz emanating from something, you just know that it is something that is having a real effect on people and perhaps changing the way that they view things. Such is the case with the recent opinion of the Supreme Court of New Jersey in State v. Henderson, 27 A.3d 872 (N.J. 2011). 

As noted by Professor Valena Beety in her essay, The Case of Trayvon Martin and the Need for Eyewitness Identification Reform (Denver University Law Review, forthcoming),

In  State v. Henderson, the New Jersey Supreme Court...reformed its test for the admissibility of eyewitness identification evidence. The opinion relied on decades of scientific research, emphasizing the growth in knowledge since the standing admissibility test had been established. In raising the bar for admitting eyewitness identification evidence, the Court recognized the previous approach needed to be updated. The Court incorporated empirical evidence to find the current admissibility standard was not in keeping with due process obligations under the New Jersey Constitution.

The Court in Henderson specifically addressed estimator variables - visibility, age of the viewer, lighting - and system variables - such as line up procedures and police interaction. The Court focused primarily on the system variables, and changing police protocol because they are factors "within the control of the criminal justice system." 

So, how do I know that Henderson is primed to have a big impact? Consider State v. Ferguson, 804 N.W. 586 (Minn. 2011), in which the Supreme Court of Minnesota reversed a defendant's murder conviction because the trial court erroneously precluded him from presenting alternate-perpetrator evidence. This meant that the court did not need to address the defendant's argument that the trial court also erred in precluding him from calling an expert witness to testify about the unreliability of eyewitness identification. Nonetheless, in his concurring opinion, Justice Paul Anderson engaged in a lengthy discussion of Henderson, found that it was "an opinion likely to become an important benchmark on the limitations of eyewitness identification," and noted that

if Ferguson offers eyewitness identification expert testimony on remand, I hope that the district court will carefully consider whether the defects in the photo lineup procedure used here and the recent developments in social science require admission of eyewitness identification expert testimony and/or a cautionary jury instruction. Moreover, the court should look closely at New Jersey's safeguards and determine if those safeguards are appropriate here. Specifically, the court should consider the reliability of the eyewitness identification in light of the recent New Jersey Supreme Court decision, in addition to the factors our court has set out in Miles and Helterbridle. If the expert eyewitness testimony is not "otherwise appropriate," the court should consider alternative approaches to educating jurors on the variables that "can lead to misidentifications."...As our courts and jurors grow to understand the science of eyewitness identification, we can better meet the "'twofold aim...that guilt shall not escape or innocence suffer.'" 

Even in the Westlaw era, it is impressive that an opinion by the Supreme Court of New Jersey could have such an impact on a judge on another court over 1,000 miles away less than two months later. So, what exactly are estimator variables and system variables? What are the problems with eyewitness identifications, and particularly cross-racial identifications? And what can the Trayvon Martin case tell us about all of this? Let's take a look at Professor Beety's essay.

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September 19, 2012 | Permalink | Comments (2) | TrackBack (0)

Tuesday, September 18, 2012

Who Let The Dogs In?: Professor Leslie Shoebotham's Amici Brief For Harris v. State

Back in July, I posted an entry about a terrific amici curiae brief (2012 WL 2641847 (2012)) written by Leslie Shoebotham, an Associate Professor at the Loyola University New Orleans College of Law, for Jardines v. State, 73 So.3d 34, 49 (Fla. 2011), one of two drug sniffing dog cases being heard by the United States Supreme Court.  The second of those cases is Harris v. State, 71 So.3d 756 (Fla. 2011), and Professor Shoebotham has now drafted a piercing amici curiae brief in that case as well. See Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, 2012 WL 3864280 (2012) [Download Harris Amici Brief]. The issue in Harris is: "Whether an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle." The real question, though, is whether a dog's "certification alone" is sufficient for a positive alert to establish probable cause. And, according to Professor Shoebotham's brief, the answer to that question is a clear "no."

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September 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, September 17, 2012

Persons Unknown: Professor Jessica Smith On Williams v. Illinois & The Confrontation Clause

The Supreme Court's most recent Confrontation Clause opinion -- Williams v. Illinois -- was issued while I was in the process of moving from Illinois to South Carolina, so I never really got the chance to address it on this blog. I did preview Williams in a prior post and correctly concluded that the Court would find no Confrontation Clause violation. But while I was right on the results, I was wrong on the reasoning, which is unsurprising giving that the post-Crawford Confrontation Clause framework seems to change from case to case. And, with the Court's fractured opinion in Williams, none of this is likely to change. So, what did the Court hold in Williams? Let's take a look at Confrontation Clause Update: Williams v. Illinois and What It Means for Forensic Reports (Download Confrontation Clause Update), by Professor Jessica Smith of the University of North Carolina School of Government.

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

Sunday, September 16, 2012

Victim Of Circumstance?: Is Circumstantial Evidence Sufficient To Survive Summary Judgment In Products Liability Case?

The Supreme Court of South Carolina recently issued an interesting opinion in Graves v. CAS Medical Systems, Inc., 2012 WL 3793263 (S.C. 2012), an opinion that may very well have been shaped by an amicus curiae brief submitted by several law professors. In Graves, the circuit court had found that a plaintiff in a design defect case cannot survive a motion for summary judgment through soleley circumstantial evidence. So, what did the South Carolina Supremes find?

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