EvidenceProf Blog

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

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Saturday, November 10, 2012

Jailhouse Rock: Court Of Appeals Of Mississippi Finds Jailhouse Lawyers Is Not An Attorney For Attorney-Client Privilege Purposes

Mississippi Rule of Evidence 502(b) provides that

A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client (1) between himself or his representative and his lawyer or his lawyer's representative, (2) between his lawyer and the lawyer's representative, (3) by him or his representative or his lawyer or a representative of the lawyer to a lawyer or a representative of a lawyer representing another party in a pending action and concerning a matter of common interest therein, (4) between representatives of the client or between the client and a representative of the client, or (5) among lawyers and their representatives representing the same client.

So, who qualifies as a "lawyer" for purposes of Mississippi's attorney-client privilege? According to Mississippi Rule of Evidence 502(a)(3),

“lawyer” is a person authorized, or reasonably believed by the client to be authorized, to engage in the practice of law in any state or nation.

In Harrell v. State, 2012 WL 5395162 (Miss.App. 2012), the Court of Appeals of Mississippi addressed the following question: Does, a "writ writer" within the prison system, a so-called "jailhouse lawyer," who assists other inmates with legal advice and research, qualify as a "lawyer" under Rule 502(a)(3)?

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November 10, 2012 | Permalink | Comments (3) | TrackBack (0)

Friday, November 9, 2012

Remedial Chaos?: Why Rule 407's Impeachment Exception Isn't Really An Exception

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

Similarly, South Carolina Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

As you can see, both the Federal and South Carolina versions of Rule 407 potentially allow for the admissibility of evidence of subsequent remedial measure to prove negligence. So, let's say that there's a collision between a train and a car. And, let's say that defense witnesses testify that the site distance at the time of the collision was adequate. But, let's say that the defendant shortly thereafter cut the vegetation bordering the tracks where the accident occurred. Can the plaintiff introduce evidence of this subsequent remedial measure to impeach these defense witnesses? According to the recent opinion of the Supreme Court of South Carolina in Carson v. CSX Transp., Inc., 2012 WL 5420337 (S.C. 2012), the answer is "no."

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

Thursday, November 8, 2012

Are Polygraph Results Per Se Inadmissible Because Anita Hill Passed A Polygraph Exam?

Last night, I engaged in a lively debate at the University of South Carolina School of Law with Brian Morris, a certified polygraph examiner. The debate was pretty interesting, with Mr. Morris even doing a live polygraph examination on a student. People who have been reading this blog for the last several days got a preview of some of the arguments that I made during the debate. And long time readers of the blog know that I have delved into the long, strange history of the lie detector test since its creation by Dr. William Moulton Marston, the man who also created Wonder Woman and her magic lasso of truth. In my post about Marston, I wondered whether courts would be more receptive to the admission of lie detector evidence if the someone other than he created the device. After the debate last night, I wondered whether courts would be more receptive to lie detector evidence if Anita Hill hadn't come forward with sexual harassment allegations against Clarence Thomas during his Supreme Court confirmation process.

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November 8, 2012 | Permalink | Comments (5) | TrackBack (0)

Wednesday, November 7, 2012

White Coat Syndrome Squared: What Can White Coat Syndrome Tell Us About Polygraph Exams & Ecological Validity?

There are two different uses of the phrase "white coat syndrome." One has explicity been tied to expert evidence.

In the 1990s, legal professionals blamed the "white coat syndrome" for having an impact on juries that was strikingly similar to the CSI effect. "White coat syndrome" is the term used to describe a phenomenon where "jurors mechanistically defer to certain experts because of their field of expertise." (Neil Vidmar, Expert Evidence, the Adversary System, and the Jury, 95 AM. J. PUB. HEALTH S-37-S143, S138 (July 2005)....However, numerous studies demonstrate that jurors do an exceptional job of focusing on the evidence, as opposed to the expert, and do not automatically adopt expert opinions as their own. These studies demonstrate that "jurors are far more skeptical and demanding in their assessments [of expert testimony]" and that "[they] attempt to evaluate the testimony on its merits rather than deferring to an expert's credentials, likeability, or other peripheral factors."

So, do jurors actually defer to certain experts, and do they defer to polygraph experts? I don't know, but courts consistently rely upon this rationale to deem polygraph evidence inadmissible. As noted in my post yesterday, one of the reasons that Texas courts deem polygraph evidence inadmissible is based upon the concern that jurors overvalue polygraph results.

This post, however, deals with the second use of the phrase "white coat syndrome."

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November 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 6, 2012

Where The Truth Lies: Court Of Criminal Appeals Of Texas Deems Polygraph Evidence Admissible At Community Supervision Revocation Hearing

Back on October 30th, I posted an entry about the admissibility of polygraph evidence at probation revocation proceedings. In that post, I peripherally mentioned the recent opinion of first impression by the Court of Criminal Appeals of Texas in Leonard v. State, 2012 WL 715981 (Tex.Crim.App. 2012). In this post, I will look at Leonard in a bit more detail.

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November 6, 2012 | Permalink | Comments (1) | TrackBack (0)

Monday, November 5, 2012

Where The Truth Lies: The Hearsay Problem With Lie Detector Evidence

I have been writing quite a bit about lie detector evidence recently and have been mainly focused upon the (un)reliability of such evidence. Until recently, I hadn't really thought about the hearsay implications of such evidence. But then I came upon The Significance (If Any) for the Federal Criminal Justice System of Advances in Lie Detector Technology, 80 Temp. L. Rev. 711 (2007), by past EvidenceProf guest blogger Jeff Bellin. In the piece, Professor Bellin makes a compelling case for much lie detector evidence being inadmissible under the rule against hearsay.

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November 5, 2012 | Permalink | Comments (2) | TrackBack (0)

Sunday, November 4, 2012

Eco-Dome: The Ecological Validity Problem With Most Polygraph Studies

Ecological Validity

The extent to which the conditions simulated in the laboratory reflect real life conditions. Using an experimental laboratory-based research method, as has been the tradition in Cognitive Psychology, rigorous control for confounding variables is put in place and the ideal is that the researcher can study the onlythe phenomenon of interest. By manipulating variables (so-called independent variables) in the experimental setup and observing the changes that result (measured in the change of the dependent variable) the researcher can infer causality: If (independent) variable X is changed, (dependant) variable Y also changes. By rigorously controlling for confounding variables and confining the experiment to the laboratory, the results can very well lack applicability and generalisability with regards to the richness of everyday life. Ecological validity refers to an acknowledgment of the fact that human action is situated and highly contingent on contextual factors/variables. To obtain 'valid' results, humans should be studied in the richness of their natural environment

As Adam B. Shniderman notes in You Can’t Handle the Truth: Lies, Damn Lies, and the Exclusion of Polygraph Evidence, 22 Alb. L.J. Sci. & Tech. 433 (2012), one of the main problems with studies on the accuracy of polygraph exams is the lack of ecological validity.

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November 4, 2012 | Permalink | Comments (0) | TrackBack (0)