EvidenceProf Blog

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

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Saturday, October 13, 2012

Communist Block: EDNY Finds Chinese Ministry Of Commerce Documents Inadmissible In Vitamin C Litigation

Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:  

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or  

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and  

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

The Ministry of Commerce of the People's Republic of China ("Ministry") is the equivalent of a U.S. cabinet-level department. So, would records or statements coming from the Ministry qualify for admission under this public records hearsay exception? Let's take a look at the recent opinion of the United States District Court for the Eastern District of New York in In re Vitamin C Antitrust Litigation, 2012 WL 4511308 (E.D.N.Y. 2012).

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October 13, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, October 12, 2012

eRape?: Should Courts Allow Rape Defendants to Discover the Google Searches of Their Victims?

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Jennifer Bennett was beaten, choked, and raped by Thomas Bray at his condo. Upon returning to her home, “[s]he stood at the entrance to her bathroom for 15 minutes, fighting the urge to scrub her body clean.”

“I had a decision to make: ‘Do I take a shower?’” Bennett recalled. “I stared at my shower. And I decided not to do it.”

Bennett decided against the shower, instead subjecting herself to a rape exam at the St. Charles Medical Center and questioning by police.

Later, Bennett faced another choice, an unprecedented choice for a crime victim in Oregon: whether to turn over her Google searches from the days before and after her rape. The judge ordered her to comply with a subpoena requiring her to disclose her searches. She refused. The judge then refused to enforce the subpoena. Eventually, Bray was convicted.

According to Bennett, by refusing to comply with the subpoena, she was making a stand on behalf of not only herself but all future rape victims. But will such stands be recognized in a world in which we increasingly live our lives online?

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October 12, 2012 | Permalink | Comments (4) | TrackBack (0)

Thursday, October 11, 2012

Service Unavailable Error?: Court Of Appeals Of Ohio Finds Witness Unavailable Under Rule 804(A)(5)

Similar to its federal counterpartOhio Rule of Evidence 804(A)(5) provides that a witness is "unavailable" if he

is absent from the hearing and the proponent of the declarant's statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under division (B)(2), (3), or (4) of this rule, the declarant's attendance or testimony) by process or other reasonable means.

I agree with the Court of Appeals of Ohio, Twelfth District in State v. Tabor, 2012 WL 4761741 (Ohio App. 12 Dist. 2012), that a witness in a case that it was reviewing on appeal was "unavailable;" however, I disagree with part of its attempt to distinguish a prior case.

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October 11, 2012 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 10, 2012

I Can See Clearly Now: 8th Circuit Finds District Court Properly Precluded Sexual Misconduct Conviction Under Rule 609

Federal Rule of Evidence 609(a)(1)(A) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:  

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:  

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant....

So let's say that a district court precludes a defendant charged with wire and mail fraud from impeaching a key witness for the prosecution with evidence of an eight year-old conviction for felony sexual misconduct. If the defendant is able to impeach the witness with other evidence, was the district court's opinion proper? According to the Eighth Circuit's recent opinion in United States v. Chaika, 2012 WL 4476680 (8th Cir. 2012). I mostly agree but have one major reservation.

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October 10, 2012 | Permalink | Comments (5) | TrackBack (0)

Tuesday, October 9, 2012

Baby You Can Drive My Car: Court Of Appeals Of Minnesota Uses Rule Of Lenity To Reverse Tracking Device Conviction

Pursuant to the rule of lenity, courts must construe ambiguous criminal statutes in favor of criminal defendants because the government drafts criminal statutes and is responsible for any terms that are equally susceptible to multiple definitions. See, e.g., Fowler v. United States, 131 S.Ct. 2045, 2055 (2011). Courts rarely invoke the rule of lenity, which is why at least one criminal law professor has mused, Why do I waste my time teaching the so-called "Rule of Lenity"?

That said, the rule does rear its head in the appropriate case, including United States v. Millis, 621 F.3d 914 (9th Cir. 2010), which I give to my students through the following hypothetical:

Daniel Millis was convicted under 50 C.F.R. Section 27.94 for placing full, gallon-sized plastic bottles of water on trails in the Buenos Aires National Wildlife Refuge to help alleviate exposure deaths among undocumented immigrants crossing into the United States. That section criminalizes "[t]he littering, disposing, or dumping in any manner of garbage…on any national wildlife refuge….” There is no legislative history for the section. Millis challenges his conviction on grounds of lenity. How should the court rule? See United States v. Millis, 621 F.3d 914 (9th Cir. 2010).

What the court did rule was that full bottles of water could be considered "garbage" under one definition (discarded inorganic material -- the bottles) but could not be considered "garbage" under another definition (useless or unpleasant material). Accordingly, the Ninth Circuit found that the rule of lenity applied and that Millis' conviction had to be reversed.

Now, based upon the opinion of the Court of Appeals of Minnesota in State v. Hormann, 805 N.W.2d 883 (Minn.App. 2011), I have another good lenity case to teach to students.

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October 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, October 8, 2012

Caller ID: Supreme Court Of Arkansas Finds Distinctive Characteristics Sufficient To Authenticate Text Messages

Similar to its federal counterpartArkansas Rule of Evidence 901(b)(4) provides that there can be authentication of evidence through

Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.  

And, as the recent opinion of the Supreme Court of Arkansas in Gulley v. State, 2012 WL 4712207 (Ark. 2012), makes clear, Rule 901(b)(4) is often used to authenticate e-mails, text messages, and the like.

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October 8, 2012 | Permalink | Comments (2) | TrackBack (0)

Sunday, October 7, 2012

Hypothetically Speaking: Southern District Of Texas Finds No Problem With Hypothetical Testimony Under Rule 704(b)

Federal Rule of Evidence 704(b) provides that 

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

Often, prosecutors will circumvent Rule 704(b) in cases in which defendants are charged with possession of drugs with intent to distribute by having officers testify that, based upon their experience, the amount of drugs possessed would typically be associated with an intent to distribute. But in United States v. Lopez, 2012 WL 4663530 (S.D.Tex. 2012), it was the defendant finding a way around Rule 704(b).

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October 7, 2012 | Permalink | Comments (3) | TrackBack (0)