EvidenceProf Blog

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

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Saturday, November 24, 2012

Unauthorized Transfer Redux: Forfeiture By Wrongdoing & Counter-Factual Thinking

There have been some interesting e-mails over the last couple of days on the Evidence Professor listserv. These e-mails deal with a topic that occupied this blog for about a week back in September: What is the status of the doctrine of forfeiture by wrongdoing in the wake of Giles v. California? Readers will recall that in my essay, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing, I argue that Justice Scalia adopted a conception of forfeiture by wrongdoing that requires intent + causation. In other words, forfeiture applies when a party engages in conduct that (a) is intended to render a prospective witness unavailable; and (b) causes the prospective witness to be unavailable. Meanwhile, I argue that the dissent adopted a conception of forfeiture by wrongdoing that requires causation + benefit. In other words, forfeiture applies when a party engages in wrongdoing that (a) causes a prospective witness to be unavailable; and (b) would benefit the party unless the court allowed for the admission of the prospective witness's hearsay statements.

The professor who started this series of e-mails, however, contends that Justice Scalia's vision of forfeiture by wrongdoing (a) requires intent + causation + benefit; and (b) requires that we engage in counter-factual analysis. In other words, forfeiture by wrongdoing only applies when a party engages in conduct that (a) is intended to render a prospective witness unavailable; (b) causes the prospective witness to be unavailable; and (c) would benefit the party unless the court allowed for the admission of the prospective witness's hearsay statements. And the way that we determine whether (c) is satisfied is to compare what actually happened with what would have happened if the party did not engage in the subject wrongdoing. In this post, I will use a hypothetical to explain why I disagree with this reasoning.

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November 24, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, November 23, 2012

Reelin' In The Years: NJ Court Finds Decade-Old Convictions Admissible In "Black Friday" Case

Pursuant to New Jersey Rule of Evidence 609,

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. 

But how remote is too remote? Let's take a look at the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Vasquez, 2012 WL 1468614 (N.J.Super.A.D. 2012).

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

Thursday, November 22, 2012

Home For The Holidays: California Court Refuses New Trial Despite Juror Wanting To Be Home For Thanksgiving

A defendant is convicted of attempted murder. After he is convicted, the defendant moves for a new trial based upon an investigator's declaration.

In that declaration, the investigator stated that Juror No. 5 responded to a letter that he left on her door. When the investigator spoke to Juror No. 5, she told him that she believed at the time of trial that [the defendant] was not guilty. Juror No. 5 also stated that she and other jurors believed that the perpetrators were Black. According to Juror No. 5, jurors discussed the upcoming Thanksgiving holiday, wanting to go home for vacation, and that the trial was taking longer than expected. Lastly, Juror No. 5 informed the investigator that she thought [the defendant] had the right to appeal even if she voted guilty and thus she could be home for Thanksgiving. People v. Toluao, 2012 WL 4497809 (Cal.App. 4 Dist. 2012).

Is the defendant entitled to a new trial?

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

Wednesday, November 21, 2012

Avoiding A Confrontation, Take 3: More Proof That The Bruton Doctrine Is Not A Test Of Constitutional Reliability

As I have noted that last couple of days:

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a defendant's statement that facially incriminates a co-defendant unless the defendant takes the witness stand at trial. In the wake of the Supreme Court's opinion in Crawford v. Washington, however, courts nearly categorically have concluded that the Bruton doctrine only applies to "testimonial" statements, meaning that it does not apply to casual comments to a mother, a brother, a lover, or another acquaintance.

Yesterday, I posted an entry about the Third Circuit's opinion in United States v. Shavers, 693 F.3d 363 (3rd Cir. 2012). In Shavers, the Third Circuit found that the Bruton doctrine does not cover nontestimonial hearsay. Today, I will look at the opinion of the Third Circuit in Pabon v. Mahanoy, 654 F.3d 385 (3rd Cir. 2011), and use it to explain why the Third Circuit's opinion in Shavers makes no sense.

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November 21, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 20, 2012

Avoiding A Confrontation, Take 2: 3rd Circuit Finds Bruton Doctrine Doesn't Cover Nontestimonial Hearsay

As I noted yesterday,

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a defendant's statement that facially incriminates a co-defendant unless the defendant takes the witness stand at trial. In the wake of the Supreme Court's opinion in Crawford v. Washington, however, courts nearly categorically have concluded that the Bruton doctrine only applies to "testimonial" statements, meaning that it does not apply to casual comments to a mother, a brother, a lover, or another acquaintance.

The recent opinion of the Third Circuit in United States v. Shavers, 693 F.3d 363 (3rd Cir. 2012), is another opinion in this same vein, and it again illustrates with I disagree with what courts have done with the Bruton doctrine.

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November 20, 2012 | Permalink | Comments (5) | TrackBack (0)

Monday, November 19, 2012

Avoiding A Confrontation: D.C. Court Of Appeals Finds Bruton Doctrine Does Not Cover Nontestimonial Hearsay

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a defendant's statement that facially incriminates a co-defendant unless the defendant takes the witness stand at trial. In the wake of the Supreme Court's opinion in Crawford v. Washington, however, courts nearly categorically have concluded that the Bruton doctrine only applies to "testimonial" statements, meaning that it does not apply to casual comments to a mother, a brother, a lover, or another acquaintance. In its recent opinion in Ward v. United States, 2012 WL 5512579 (D.C. 2012), the District of Columbia Court of Appeals joined the chorus. As always, I disagree.

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

Sunday, November 18, 2012

Time Out New York: NY Changes To Schools' Time Out Policies Prompts Interesting Subsequent Remedial Measure Rulings

William ("Billy") Schafer, Jr. is a developmentally disabled child at the Rosemary Kennedy School (named for the developmentally disabled oldest sister of JFK). Based upon Billy repeatedly being placed in a time out room, Billy, by and through his parents, brought, inter alia, a federal Section 1983 Fourth Amendment claim and state law claims for false imprisonment, negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress against several defendants, including the Board of Cooperative Educational Services of Nassau County (BOCES). Specifically, the plaintiffs alleged the following:

Classroom 506 of the Kennedy School was the designated "timeout area." According to Plaintiffs, the timeout room was a small, dark room, approximately four feet by five feet, with little or no lighting...and with blue gym matting on the walls and floor....It was one of two small rooms within a larger classroom-type area.... The classroom windows were covered with cardboard....The door to the timeout room where Mr. Schafer found Billy might have had a window--Mr. Schafer cannot recall--but if it did the window was blocked....Further, Plaintiffs infer that the timeout room was locked....It is undisputed that Defendant Paul Schaefer was assigned to monitor the timeout room during the time Billy was enrolled at the Kennedy School....

According to Plaintiffs, Defendants put Billy in the timeout room between twenty-seven and forty times between September 2004 and May 2005....There are twenty-seven reported confinement incidents in Billy's timeout log,...but Defendant Cohen told Mr. Schafer that she thought Billy had been sent to the timeout room forty times.... According to the log, Billy was sent to the timeout room for behavior such as "hitting" or "kicking" and also for infractions such as "refusing to work" and "cursing."...Defendants claim that they prepared a Behavioral Intervention Plan ("BIP") for Billy and discussed it with his Parents....Billy's Parents sharply dispute that they ever had any knowledge of the BIP or the strategies it described....In any event, the BIP appears to permit use of the timeout room only when "Billy is physically aggressive toward others." 

In this post, I will address the recent opinion of the United States District Court for the Eastern District of New York, in Schafer v. Board of Co-op. Educational Services of Nassau County, 2012 WL 5547319 (E.D.N.Y. 2012), which dealt with some interesting issues relating to subsequent remedial measures.

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November 18, 2012 | Permalink | Comments (0) | TrackBack (0)