EvidenceProf Blog

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

Saturday, October 27, 2012

I Rest My Case, Take 5: Supreme Court Of West Virginia Allows For Additional Evidence After Start Of Closing Arguments

Recently, I have written several posts about whether judges should be able to use their power under Federal Rule of Evidence 614(a) and state counterparts. In one of those posts, I discussed two West Virginia cases. In the first of these cases, State v. Loveless, 534 S.E.2d 23 (W.Va. 1955), the Supreme Court of West Virginia reversed a conviction, finding that

witnesses were called after the state and the defense had rested their cases. The introduction of these two witnesses at this stage of the trial was untimely and constitutes another valid objection to the action of the trial court. These witnesses should have been called before the state or the defense had concluded the introduction of testimony to sustains ths issue on their respective parts. This record discloses that the trial judge, though having a right to call Sherman and Jones as witnesses, should not have examined them to the extent he did and in the manner he did. Nor should such witnesses and their testimony been used after the state and the defense had rested their case. Such action of the trial court constitutes reversible error.

Later, in State v. Parr, 534 S.E.2d 23 (W.Va. 2000), the West Virginia Supremes retreated from this position a bit, concluding that

The decision in Loveless does not preclude trial courts from calling witnesses after the State or defendant has rested. As was noted by Professor Cleckley in his interpretation of Loveless, calling a witness by the trial court "after the parties have rested must be sparingly used." 

So, what did the same court recently do in In re T.H., 2012 WL 5205673 (W.Va. 2012)?

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October 27, 2012 | Permalink | Comments (2) | TrackBack (0)

Friday, October 26, 2012

These Memories Can't Wait: Michigan Case Reveals Michigan Courts May Have Bungled Rule 803(5) Analysis

Similar to its federal counterpartMichigan Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

But, based upon the recent opinion of the Court of Appeals of Michigan in People v. Conley, 2012 WL 5193202 (Mich.App. 2012), I think that Michigan courts have bungled part of the Rule 803(5) analysis.

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

Thursday, October 25, 2012

Risk Analysis: The L'Aquila Earthquake Trial & Witness Immunity

My colleague Aparna Polavarapu sent me a link to a CNN article, which noted that

Earthquake experts worldwide expressed shock at the manslaughter convictions of six Italian scientists who failed to predict the deadly L'Aquila quake, warning that the decision could severely harm future research.

Two scientists resigned their posts with the government's disaster preparedness agency Tuesday after a court in L'Aquila sentenced six scientists and a government official to six years in prison. The court ruled Monday that the scientists failed to accurately communicate the risk of the 2009 quake, which killed more than 300 people.

In response, "[s]eismologists were aghast..., noting that earthquakes remain impossible to forecast with any kind of accuracy." Specifically, Professor David Oglesby opined that

"If scientists can be held personally and legally responsible for situations where predictions don't pan out, then it will be very hard to find scientists to stick their necks out in the future...."

But prosecutors successfully 

argued that the scientists gave "inaccurate, incomplete and contradictory information about the dangers" facing L'Aquila at a meeting a week before the magnitude-6.3 quake. The experts determined that it was "unlikely" but not impossible that a major quake would take place, despite concern among the city's residents over recent seismic activity." 

The takeaway for Professor David Spiegelhalter was that the 

"L'Aquila trial shows public scientists need to take media communication very seriously," he wrote on his Twitter account. "And get indemnity."

So, could the same thing happen to American experts?

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October 25, 2012 | Permalink | Comments (2) | TrackBack (0)

Wednesday, October 24, 2012

No Remedy At Law: 7th Circuit Opinion Skirts Issue Of Admissibility Of Subsequent Remedial Measures In Suicide Suit

A juvenile incarcerated at Illinois Youth Center has a history of mental illness and was known to have attempted suicide at least three times. While incarcerated in a room with a bunk bed, the juvenile fatally hangs himself from the top bunk in his room. The juvenile's mother thereafter brings a ยง 1983 action against various  state officials, alleging deliberate indifference to the minor's serious mental illness. If the state officials thereafter took various steps to decrease the risk of their inmates committing suicide, can the mother present evidence of these steps to prove their prior culpability? The Seventh Circuit didn't answer this question in its recent opinion in Miller v. Harbaugh, 2012 WL 5064985 (7th Cir. 2012), but I think that the answer is a clear "yes." "no."

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October 24, 2012 | Permalink | Comments (2) | TrackBack (0)

Tuesday, October 23, 2012

Caller ID, Take 2: Court Of Appeals Of North Carolina Finds Text Message Authenticated Through Distinctive Characteristics

On the heels of the Supreme Court of Arkansas finding a text message authenticated based on distinctive characteristics, the Court of Appeals reached a similar conclusion in its recent opinion in State v. Wilkerson, 2012 WL 4867697 (N.C.App. 2012).

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

Monday, October 22, 2012

Better Evidence Or Best Evidence?: Court Of Appeals Of Texas Botches Best Evidence Analysis In Tampering Case

Similar to its federal counterpartTexas Rule of Evidence 1002, the Best Evidence Rule, provides that

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.

And, similar to its federal counterpartTexas Rule of Evidence 1004(a) provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if....[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith

So, what happens if an original is not lost or destroyed, but the government still does not produce it because it does not want to pay the retrieval fee? Well, then you have a case like State v. Chavera, 2012 WL 4900856 (Tex.App.-San Antonio 2012). So, why did the court is Chavera not reverse the defendant's conviction?

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October 22, 2012 | Permalink | Comments (3) | TrackBack (0)

Sunday, October 21, 2012

The Hamburglar: Supreme Court Of Tennessee Deems Worthless Check Convictions Admissible To Impeach Alleged McDonald's Thief

Pursuant to Section 39-14-121(a)(1), the offense of passing worthless checks is committed when a person either  

with fraudulent intent or knowingly...passes a check...knowing at the time there are not sufficient funds...on deposit...for the payment in full of the check...or...[s]tops payment on a check...provided, that the...goods or services were as represented at the time of the issuance of the check.... 

Meanwhile, Tennessee Rule of Evidence 609(a)(2) provides that

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:....

(2) The crime must be punishable by death or imprisonment in excess of one year under the law under which the witness was convicted or, if not so punishable, the crime must have involved dishonesty or false statement.

So, is the crime of passing a worthless check under Section 39-14-121(a)(1) a crime that must have involved dishonesty or false statement? According to the recent opinion of the Supreme Court of Tennessee in State v. Russell, 2012 WL 4753429 (Tenn. 2012).

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