EvidenceProf Blog

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

Saturday, December 1, 2012

Power Of Attorney: Court Of Appeals Of Minnesota Finds Attorney's Statements Were Adoptive/Authorized Admissions

Similar to its federal counterpartMinnesota Rule of Evidence 801(d)(2)(B) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth...

Meanwhile, similar to its federal counterpartMinnesota Rule of Evidence 801(d)(2)(C) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a person authorized by the party to make a statement concerning the subject....

So, let's say that a defendant is interrogated at police headquarters with his attorney present. And let's say that the attorney tells the sergeant that the defendant does not wish to speak to the sergeant but does want to present information helpful to the investigator through the attorney. Are the attorney's ensuing statements adoptive admissions pursuant to Rule 801(d)(2)(B) and/or authorized admissions pursuant to Rule 801(d)(2)(C)? According to the recent opinion of the Court of Appeals of Minnesota in State v. Willis, 2012 WL 5896752 (Minn.App. 2012), the answer is yes.

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December 1, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, November 30, 2012

Doctor, Doctor, Give Me The News, I've Got A Bad Case: Supreme Court Of Tennessee Opinion Addresses Intricacies Of Rule 803(4)

Yesterday, I was talking to Derek Black and Claire Raj when we came upon the topic of Federal Rule of Evidence 803(4), which provides an exception to the rule against hearsay for

A statement that:  

(A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(B) describes medical history; past or present symptoms or sensations; their inception; or their general cause.

Part of our discussion involved the proper recipients of such statements. Obviously Rule 803(4) covers statements to a doctor, and the score is the same for statements made to a nurse. But what about statements made to an orderly or administrative personnel? Let's take a lot at the opinion of the Supreme Court of Tennessee in State v. McLeod, 937 S.W.2d 867 (Tenn. 1996), which answers this question, explains a key distinction between Tennessee Rule of Evidence 803(4) and its federal counterpart, and really digs into the nitty gritty of this hearsay exception.

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November 30, 2012 | Permalink | Comments (1) | TrackBack (0)

Thursday, November 29, 2012

Unauthorized Transfer, Take 6: Second Circuit Applies Transferred Intent Doctrine Of Forfeiture By Wrongdoing

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for 

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

The opinion of the Second Circuit in United States v. Stewart, 485 F.3d 666 (2nd Cir. 2007), provides yet another example of what I call the transferred intent doctrine of forfeiture by wrongdoing, with the Second Circuit finding that a defendant's intent to render a witness available at one trial transferring to another trial.

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November 29, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 28, 2012

The Statement Doesn't Speak For Itself: Central District Of California Finds Statement Itself Not Enough To Trigger Forfeiture By Wrongdoing

Federal Rule of Evidence 801(d)(2)(C)-(E) provides that

A statement that meets the following conditions is not hearsay:....

The statement is offered against an opposing party and:....

(C) was made by a person whom the party authorized to make a statement on the subject;  

(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; or  

(E) was made by the party’s coconspirator during and in furtherance of the conspiracy.

Rule 801 then goes on to provide that

The statement must be considered but does not by itself establish the declarant’s authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E).

For instance, assume that Carl says to Fred, "Dan and I have agreed to rob the bank on State Street. WIll you drive the getaway car?" If the prosecution seeks to introduce this statement as a co-conspirator admission under Federal Rule of Evidence 801(d)(2)(E), Carl's statement must be considered but does not by itself establish that he is Dan's co-conspirator. Instead, the prosecution would have to prove that conspiracy through some other evidence.

So, does similar logic apply to the doctrine of forfeiture by wrongdoing? According to the recent opinion of the United States District Court for the Central District of California in U.S. v. $1,026,781.61 in funds from Florida Capital Bank, 2012 WL 5878379 (C.D.Cal. 2012), the answer is "yes."

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November 28, 2012 | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 27, 2012

Unauthorized Transfer Redux, Part 2: The Negative Component Of Forfeiture By Wrongdoing & Counter-Factual Thinking

As I noted a few days ago, there has been a debate on the Evidence Professor listserv regarding what a party has to prove to trigger application of the doctrine of forfeiture by wrongdoing. My position remains that a party merely has to prove intent + causation. For example, the prosecution would have to prove that a defendant engaged in wrongdoing that (a) was intended to render a prospective witness unavailable, and (b) caused the prospective witness to be unavailable. The opposing school of thought is that a party has to prove intent + causation + benefit. For example, the prosecution would have to prove that a defendant engaged in wrongdoing that (a) was intended to render a prospective witness unavailable; (b) caused the prospective witness to be unavailable; and (c) would benefit from the wrongdoing unless forfeiture applied. Under this analysis, the court would engage in counter-factual thinking to determine whether (c) has been proven. And, under this analysis, forfeiture by wrongdoing would not apply to a defendant who kills a prospective witness to prevent him from testifying at an original trial (e.g., a robbery trial) and who is now on trial for murdering the prospective witness. Why? Without the killing, there could be no murder trial, meaning that the defendant could not derive a benefit from his wrongdoing because there could not even be a murder trial without that wrongdoing.

As I have noted before, however, forfeiture by wrongdoing has both a positive and negative component. And, by looking at the negative component, I think we can again see why it doesn't make sense to engage in counter-factual thinking.

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November 27, 2012 | Permalink | Comments (3) | TrackBack (0)

Monday, November 26, 2012

Unauthorized Transfer, Again: Court Of Appeals Of Indiana Applies Transferred Intent Doctrine Of Forfeiture By Wrongdoing

The question of whether there is a transferred intent doctrine of forfeiture by wrongdoing has occupied this blog quite a bit over the last few months. The series of posts on this topic was prompted by the Drew Peterson case, with the question there being whether Drew Peterson killing two ex-wives to prevent them from testifying at existing or hypothetical future divorce proceedings could lead to application of forfeiture by wrongdoing at his murder trial for killing one of the ex-wives. The answer to that question, at least according to the Illinois courts, was "yes," and now, Illinois' neighbor to the east has reached a similar conclusion based upon similar facts in White v. State, 2012 WL 5875681 (Ind.App. 2012).

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November 26, 2012 | Permalink | Comments (3) | TrackBack (0)

Sunday, November 25, 2012

Until My Dying Day: Dying Declarations & Counter-Factual Analysis

In yesterday's post, I gave the following hypothetical:

Dan robs Vince, with William witnessing the crime. Vince goes to the police and tells them that Dan robbed him. Dan is arrested and charged with robbery. Dan, knowing that William could be a witness against him, attacks William. William is taken to the hospital and, after hours of treatment, is in stable condition. He speaks with Police Officer Peters and tells him, "I'll be honest with you. I hate Vince, and I was going to take the witness stand and say that it wasn't Dan who robbed him just to spite Vince. But after what Dan did to me, there's no way I'm going to lie. I saw Dan rob Vince, and Dan tried to kill me today because of what I saw." Later that night, William's condition worsens, and he dies. So, at Dan's robbery trial, should William's statement to Peters be admissible?

My argument was that the statement should be admissible under the doctrine of forfeiture by wrongdoing, with the hypothetical illustrating why I think that courts should not engage in any type of counter-factual thinking when deciding whether the doctrine applies. In the hypothetical, I was careful to have WIlliam making his statement while he was "in stable condition." If WIlliam were in critical condition when he made the statement, the statement could have qualified as a dying declaration under Federal Rule of Evidence 804(b)(2), which provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

The interesting thing about this dying declaration exception is that courts actually do engage in a counter-factual analysis to determine whether it applies.

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November 25, 2012 | Permalink | Comments (0) | TrackBack (0)