EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Saturday, January 28, 2012

Do You Yahoo?: NJ Court Applies Federal Rule Of Evidence 901(b)(4) To Find Proper Authentication Of Yahoo! Chats

Similar to its federal counterpartNew Jersey Rule of Evidence 901 provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.

That said, the New Jersey Rules of Evidence do not have a counterpart to Federal Rule of Evidence 901(b)(4), which provides that evidence can be authenticated through

The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

As the recent opinion of the Superior Court of New Jersey, Appellate Division in State v D.D., 2012 WL 246378 (N.J.Super.A.D. 2012), makes clear however, New Jersey courts do look to Rule 901(b)(4) for guidance.

Continue reading

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

Friday, January 27, 2012

Objection!: Appellate Court Of Connecticut Finds Issue Waived Because Defendant Cited To Federal Rule Of Evidence

In order to preserve an issue for appellate review, a party must make a timely objection and state the specific ground for the objection. The recent opinion of the Appellate Court of Connecticut in Corbett v. Commissioner of Correction, 2012 WL 224914 (Conn.App. 2012), is instructive in this regard. But did the court go too far?

Continue reading

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

Thursday, January 26, 2012

Ham Handed?: 6th Circuit Finds Character Evidence Properly Excluded Despite Mercy Rule

While Federal Rule of Evidence 404(a)(1) precludes the admission of propensity character evidence, Federal Rule of Evidence 404(a)(2)(A), the "mercy rule," states that

a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it...

That said, Federal Rule of Evidence 405(a) states that

When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.

And what this means is that the defendant in United States v. Silber, 2012 WL 171397 (6th Cir. 2012), was out of luck.

Continue reading

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

Wednesday, January 25, 2012

This Is A Recording?: California Court Finds No Error In Admission Of Recorded Recollection Despite Contradictory Testimony

In a post in August 2010, I wrote about the opinion of the Supreme Court of California in People v. Cowan, 2010 WL 3034725 (Cal. 2010). That post concerned California Evidence Code Section 1237, which, similar to Federal Rule of Evidence 803(5), provides an exception to the rule against hearsay for

(a) Evidence of a statement previously made by a witness is not made inadmissible by the hearsay rule if the statement would have been admissible if made by him while testifying, the statement concerns a matter as to which the witness has insufficient present recollection to enable him to testify fully and accurately, and the statement is contained in a writing which:

(1) Was made at a time when the fact recorded in the writing actually occurred or was fresh in the witness' memory;

(2) Was made

(i) by the witness himself or under his direction or

(ii) by some other person for the purpose of recording the witness' statement at the time it was made;

(3) Is offered after the witness testifies that the statement he made was a true statement of such fact; and

(4) Is offered after the writing is authenticated as an accurate record of the statement.

(b) The writing may be read into evidence, but the writing itself may not be received in evidence unless offered by an adverse party.

That post questioned whether the California Supremes were correct in deeming a statement made three months after an event admissible under California Evidence Code Section 1237. In its recent opinion in People v. Gallardo, the Court of Appeal, Fourth District, Division 1, California, also allowed for the admission of a statement that was about three months old. And, as in People v. Cowan, I'm not sure that the court got it right, albeit for a different reason.

Continue reading

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

Tuesday, January 24, 2012

Reelin' In The Years: NJ Case Reveals Differences Between Federal & New Jersey Rule Of Evidence 609

Federal Rule of Evidence 609(b) states:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Moreover, the Advisory Committee Note to this Rule states that "[a]lthough convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness." In other words, it is rare that a conviction that is more than ten years old is admissible under Federal Rule of Evidence 609(b).

Conversely, New Jersey Rule of Evidence 609 simply states that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

And, as the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Rock, 2012 WL 177866 (N.J.Super.A.D. 2012), makes clear, convictions that are more than ten years old are routinely admitted under this Rule.

Continue reading

January 24, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, January 23, 2012

Bad Trip: Court Of Appeals Of Iowa Oddly Hedges On Issue Of Whether Statement Qualified As Present Sense Impression

Like its federal counterpart, Iowa Rule of Evidence 5.803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

So, let's say that a defendant is charged with second-degree murder and related charges. And let's say that at several points during trial, the prosecution introduces a hearsay statement that the defendant was on a "bad crack trip" at the time of the killing. Finally, let's say that, on appeal, the prosecutor himself conceded that the person making that statement had no information to suggest that the defendant actually used crack cocaine on that evening. Is there any chance that the statement qualified for admission as a present sense impression under Rule 5.803(1)? Well, let's take a look at the recent opinion of the Court of Appeals of Iowa in State v. Mayton, 2012 WL 163047 (Iowa.App. 2012).

Continue reading

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

Sunday, January 22, 2012

Judge Me Not: Court Of Appeals Of Kentucky Finds Problems With Judicial Research, Comment

Like its federal counterpart, Kentucky Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

As the recent opinion of the Court of Appeals of Kentucky in Whitlock v. Haney, Sr., 2012 WL 2012 WL 163024 (Ky.App. 2012), makes clear, however, Rule 605 covers not only actual judicial testimony but also improper judicial research and improper judicial comment.

Continue reading

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