EvidenceProf Blog

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

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Saturday, October 20, 2012

Subtext: Supreme Court Of Nevada Finds Text Messages Admissible As Excited Utterances In Kidnapping/Battery Case

A professor on the Evidence Professor listserv a few days ago asked about cases considering whether text messages are admissible under the excited utterance exception to the rule against hearsay. One such case is Funches v. State, 2012 WL 436635 (Nev. 2012), which is interesting for a few reasons.

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October 20, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, October 19, 2012

I Rest My Case, Take 4: Court Of Appeals Of Michigan Finds No Problem With Additional Witness After Both Parties Rested

In yesterday's post, I preliminarily endorsed a dichotomy under Rule 614(a). Under this dichotomy, after the parties rested in a criminal case, a judge could call additional witnesses to clarify facts when there had been conflicting testimony/evidence. (e.g., Eyewitness A saw one thing while Eyewitness B saw something else). But, under the same circumstances, the judge could not call additional witnesses to testify on a matter on which there had not been conflicting testimony/evidence. (e.g., Eyewitness A testified that the shooter was 5'9" while Defendant is 6'2", and Eyewitness B, the only other eyewitness, had not been called by either side).

Under this dichotomy, I would agree with the opinion of the Court of Appeals of Michigan in People v. Betts, 400 N.W.2d650 (Mich.App. 1986).

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October 19, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, October 18, 2012

I Rest My Case, Take 3: Court Of Appeals Of Hawai'i Finds No Problem With Judge Calling Witness After Both Parties Rested

The last few days, I have posted entries (here and here) about judges using Rule 614(a) to call witnesses in a criminal case after both parties have rested. In my first post, I noted that "[g]iven that the prosecution has the burden of proof of every element beyond a reasonable doubt, it would seem to me that this would be fundamentally unfair." In my second post, I repeated this concern, "speculati[ng] that judges would principally if not exclusively use this power in this situation to try to erase reasonable doubt rather than to try to create reasonable doubt." It seems that defense counsel in State v. Medeiros, 909 P.2d 579 (Hawai'i App 1995), raised a similar concern. So, how did he fair?

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October 18, 2012 | Permalink | Comments (2) | TrackBack (0)

Wednesday, October 17, 2012

I Rest My Case, Take 2: Two West Virginia Cases On Judges Calling Witnesses After Both Sides Have Rested

In yesterday's post, I noted that I wasn't all that thrilled with the idea of a judge being able to use his Rule 614(a) powers to call witnesses after both the prosecution and defense had rested in a criminal case. A big reason for this was my speculation that judges would principally if not exclusively use this power in this situation to try to erase reasonable doubt rather than to try to create reasonable doubt. I still have no idea about whether this is true, but, in this post, I will present two West Virginia cases where this scenario seemed to play out. In one case, a guilty verdict was upheld. In the other, it was thrown out.

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October 17, 2012 | Permalink | Comments (2) | TrackBack (0)

Tuesday, October 16, 2012

I Rest My Case: Arkansas Judge Calls For Additional Witnesses After Both Sides Have Rested In Child Custody Case

Similar to its federal counterpartArkansas Rule of Evidence 614(a) provides that

The court, at the suggestion of a party or on its own motion, may call witnesses, and all parties are entitled to cross-examine witnesses thus called.  

The recent opinion of the Court of Appeals of Arkansas in Cowan v. Arkansas Dept. of Human Services, 2012 Ark. App. 576 (Ark.App. 2012), raises an interesting issue under Rule 614(a): Should the court be able to call additional witnesses after all parties have rested their respective cases?

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October 16, 2012 | Permalink | Comments (5) | TrackBack (0)

Monday, October 15, 2012

Class Act?: 9th Circuit Finds Plaintiff With 10+ Year Old Convictions & False Names An Adequate Class Representative

A group of plaintiffs seek provisional class certification for a class action against a defendant, claiming that its debt collection efforts violated the Telephone Consumer Protection Act, 47 U.S.C. ยง 227. The defendant opposes class certification, claiming, inter alia, that one of the class representatives will not "fairly and adequately protect the interests of the class," as required by Federal Rule of Civil Procedure 23(a)(4). Why? The representative had two 10+ year old prior convictions for dishonesty and had used multiple names in the past. According to the Ninth Circuit in Meyer v. Portfolio Recovery Associates, LLC, 2012 WL 4840814 (9th Cir. 2012), however, these facts were not fatal to the individual being provisionally deemed an adequate class representative.

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October 15, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, October 14, 2012

Did You Notice That?: Court Of Criminal Appeals Of Tennessee Finds Defendant Failed to Comply With Rule 609(b)'s Notice Requirement

Similar to its federal counterpartTennessee Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed between the date of release from confinement and commencement of the action or prosecution; if the witness was not confined, the ten-year period is measured from the date of conviction rather than release. Evidence of a conviction not qualifying under the preceding sentence is admissible if the proponent gives to the adverse party sufficient advance notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence and the court determines in the interests of justice that the probative value of the conviction, supported by specific facts and circumstances, substantially outweighs its prejudicial effect.

While the defendant in State v. Raymer, 2012 WL 4841544 (Tenn.Crim.App. 2012), likely could not have used the victim's 10+ year-old drug conviction to impeach him even if he complied with Rule 609(b)'s notice requirement, his failure to comply made that likelihood an inevitability.

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October 14, 2012 | Permalink | Comments (0) | TrackBack (0)