Saturday, December 8, 2012
I was talking to Derek Black yesterday when he raised an interesting question: Can the admission of a declarant's lie ever violate the Confrontation Clause of the Sixth Amendment? My initial thought was that the answer had to be "no." First, the Confrontation Clause is only implicated by the admission of statements offered to prove the truth of the matter asserted, and a lie seemingly would not be offered to prove the truth of the matter asserted. Second, for a statement to be "testimonial" and thus trigger the Confrontation Clause, the declarant must have some expectation or awareness that "his or her statements may later be used at a trial." I'm not sure that a liar would ever have this expectation. That said, I'm not entirely sure about these conclusions, so let's look at the opinion of the Court of Appeals of Arizona, Division 1, Department C, in State v. Valdez, 2007 WL 5248976 (Ariz.App. Div. 1 2007), which dealt with a factual context similar to the context that Derek mentioned.
Friday, December 7, 2012
Certificate Of Completion: Court Of Appeals Of Ohio Finds Uncertified Court Documents Not Self-Authenticating
A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any law of a jurisdiction, state or federal, or rule prescribed by the Supreme Court of Ohio.
Because such a record or report is self-authenticating, "[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required..." But, if such a record or report is not accompanied by the requisite certification, it is not self-authenticating under Rule 902(4), which was the problem for the appellee in Emerson Family Ltd. Partnership v. Emerson Tool, L.L.C., 2012 WL 6033142 (Ohio App. 9 Dist. 2012).
Thursday, December 6, 2012
Federal Rule of Evidence 902 provides that
The following items of evidence are self-authenticating; they require no extrinsic evidence of authenticity in order to be admitted....
One such self-authenticating item is covered by Federal Rule of Evidence 902(4):
Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
So, can a fingerprint card qualify as a self-authenticating document under Federal Rule of Evidence 902(4)? According to the recent opinion of the Fifth Circuit in United States v. Ibarra, 2012 WL 5985099 (5th Cir. 2012), the answer is "yes."
Wednesday, December 5, 2012
Avoiding A Confrontation: Why Don't Courts Find Nontestimonial Co-Defendant Statements Inadmissible Under Rule 403?
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a nontestifying co-defendant's statement that facially incriminates another defendant. As I have written on numerous occasions, however, in the wake of the Supreme Court's opinion in Crawford v. Washington, courts have nearly categorically concluded that nontestimonial hearsay is beyond the scope of the Bruton doctrine. In my article, Avoiding a Confrontation, I argued against such conclusions, but I recognize that courts are unlikely to adopt my reasoning any time soon. Recognizing this, I also argued in the article the courts faced with this problem should simply declare the co-defendant's statement inadmissible under Federal Rule of Evidence 403 and state counterparts. Let's take a look at the opinion of the United States v. Caroni, 2011 WL 5184194 (N.D.Fla. 2011), which I think supports my argument.
Tuesday, December 4, 2012
A few days ago, I posted an entry about the negative component of forfeiture by wrongdoing and why I think it tends to show that courts should apply an intent + causation test for forfeiture rather than an intent + causation + benefit test for forfeiture that relies upon counter-factual thinking. Upon further reflection, however, the situation appears a good deal more complicated than I first thought. The topic of this post will be the following two situations: In situation one, Dan is charged with murdering Vince, and William confesses to Fred that he murdered Vince. When William is later called to the police station, he denies murdering Vince and says that it was Dan who murdered Vince. Dan then kills William. In situation two, Dan is charged with murdering Vince. Immediately after the shooting, which took place in an alley, WIlliam runs out from the alley and shouts to Bill, "Oh my God! Carl just shot Vince!" When William is later called to the police station, he says, "I made a mistake. Carl looks a lot like Dan. But it was actually Dan who shot Vince." Again, Dan then kills William. How does the negative component of forfeiture by wrongdoing apply in these two situations?
Monday, December 3, 2012
My New Essay: Beware of the Diamond Dogs: Why a “Credentials Alone” Conception of Probable Cause Violates the Compulsory Process Clause
Back in September, I posted an entry about the amici brief submitted by Leslie Shoebotham, an Associate Professor at the Loyola University New Orleans College of Law, in Harris v. State, 71 So.3d 756 (Fla. 2011). See Brief of Amici Curiae Fourth Amendment Scholars in Support of Respondent, 2012 WL 3864280 (2012) [Download Harris Amici Brief]. The issue in Harris is whether a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. The State argues that the question should be answered in the affirmative pursuant to a "credentials alone" conception of probable cause. Professor Shoebotham argues against this "credentials alone" approach in her brief, which will be published in the Loyola University New Orleans Journal of Public Interest Law. She asked me to submit a companion essay to the blog, and I have just posted the first draft of that essay on SSRN. That essay is Beware of the Diamond Dogs: Why a “Credentials Alone” Conception of Probable Cause Violates the Compulsory Process Clause, and here is its abstract:
In Florida v. Harris, the State has asked the Supreme Court to find that a positive alert by a certified narcotics-detection dog is per se sufficient, in and of itself, to establish probable cause for the search of a vehicle. This essay, to be published in conjunction with Leslie Shoebotham's amici brief in Harris, argues that this "credentials alone" conception of probable cause violates the Compulsory Process Clause.
Sunday, December 2, 2012
Of Such A Character: Court Of Appeals Of The Armed Forces Implies Charged Conduct Can Be Used As Propensity Character Evidence Under Rule 413
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.
In a court-martial in which the accused is charged with an offense of sexual assault, evidence of the accused’s commission of one or more offenses of sexual assault is admissible and may be considered for its bearing on any matter to which it is relevant.
So, does this mean that if a defense is charged with two offenses of sexual assault, evidence of one of the acts of sexual assault is admissible to prove his propensity to commit sexual assault and his likely conformity with that propensity at the time of the second sexual assault (and vice versa)? According to the opinion of the United States Court of Appeals for the Armed Forces in United States v. Burton, 67 M.J. 150 (U.S. Armed Forces 2009), the answer appears to be "yes."