EvidenceProf Blog

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

Saturday, December 15, 2012

Pages In Your Diary: Supreme Court of West Virginia Badly Errs in Deeming Diary Entries Admissible Despite Rape Shield Rule

A defendant is charged with second-degree sexual assault and related crimes after another individual and he allegedly commit sexual crimes against a 13 year-old victim. After the alleged crimes, the alleged victim starts writing in a notebook and writes in that notebook that her only sexual encounters were with "Chris," who was not either of the individuals involved with the alleged sexual assault. At the defendant's trial, should he be allowed to admit the notebook? According to the recent opinion of the Supreme Court of West Virginia in State v. Jonathan B., 2012 WL 5898025 (W.Va. 2012), the answer is "yes." I strongly disagree.

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December 15, 2012 | Permalink | Comments (1) | TrackBack (0)

Friday, December 14, 2012

Not The Issue: Supreme Court Of Mississippi Finds Defendants Didn't Waive Physician-Patient Privilege

Mississippi Rule of Evidence 503(b) provides that

A patient has a privilege to refuse to disclose and to prevent any other person from disclosing (A) knowledge derived by the physician or psychotherapist by virtue of his professional relationship with the patient, or (B) confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition, including alcohol or drug addiction, among himself, his physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the physician or psychotherapist, including members of the patient's family.

While a party can waive the protection of this physician-patient privilege to the extent that he puts his medical condition at issue, as the recent opinion of the Supreme Court of Mississippi in Powell v. McLain, 2012 WL 6200432 (Miss. 2012), makes clear, a defendant is unlikely to engage in such waiver.

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December 14, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 13, 2012

The Purpose-Driven Rule Published By The Columbia Law Review Sidebar

Yesterday, my essay, The Purpose-Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing, was publised by the Columbia Law Review Sidebar. Here is the abstract:

On September 6, 2012, a jury convicted Drew Peterson of the murder of his third wife, Kathleen Savio. Media accounts of the verdict indicated that jurors were primarily swayed by the admission of hearsay statements by Savio as well as Peterson’s third wife, Stacy Peterson. Numerous stories reported that the prosecution admitted these hearsay statements pursuant to “Drew’s Law,” a statutory codification of the common law doctrine of forfeiture by wrongdoing that the Illinois legislature enacted solely for purposes of the Peterson prosecution. In fact, these statements were admitted under the common law doctrine of forfeiture by wrongdoing, and the viability of Peterson’s appeal hinges upon the constitutionality of the transferred intent doctrine of forfeiture by wrongdoing.  

The doctrine of forfeiture by wrongdoing typically applies in the witness tampering context: When a defendant on trial for some crime (e.g., robbery) intends to and does procure the unavailability of a prospective witness against him at that trial, the prosecution can admit the witness’s hearsay statements at that same trial (the robbery trial). But does the doctrine also apply at the defendant’s trial for murdering the prospective witness, with the defendant’s intent to render the witness unavailable at the first trial transferring to the second trial? This essay contends that the Supreme Court’s opinion in Giles v. California endorsed a transferred intent doctrine of forfeiture by wrongdoing by making the operation of the doctrine dependent upon causation and intent rather than causation and benefit.


December 13, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 12, 2012

I Need A Doctor: Mississippi Case Reveals That Rule 803(4) Can Cover Statements By Non-Patients

Similar to its federal counterpart, Mississippi Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, regardless of to whom the statements are made, or when the statements are made, if the court, in its discretion, affirmatively finds that the proffered statements were made under circumstances substantially indicating their trustworthiness. For purposes of this rule, the term "medical" refers to emotional and mental health as well as physical health.

So, for Rule 803(4) to apply, does the declarant need to be the doctor's patient or even the one seeking diagnosis or treatment? According to the recent opinion of the Court of Appeals of Mississippi in Webb v. State, 2012 WL 6118919 (Miss.App. 2012), the answer is "no."

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December 12, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 11, 2012

My Reincarnation: Court Of Appeals Of Wisconsin Deems Reincarnation Belief Evidence Inadmissible Character Evidence

Similar to its federal counterpart, WIS. STAT. § 906.10 provides that

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced.

Now, consider the facts of State v. Jennings, 819 N.W.2d 563 (Wis.App. 2012):

Kami L. Jennings was charged with misdemeanor theft—party to a crime, contributing to the delinquency of a child, and receiving stolen property after she allegedly told her nine-year-old daughter Genesis to steal from her ex-husband's wife, Cynthia Troha. Cynthia gossiped to the prosecutor that she heard from Jennings' other daughter, Jade, that Jennings believed her ex-husband's family had persecuted her in previous lives and burned her at the stake. The prosecution bit on the gossip, but never disclosed it to the court or the defense before raising it three times during the trial: during cross-examination of Jennings, during recross-examination of Jennings, and during its closing argument. A jury convicted Jennings of all three counts.

Was the use of this reincarnation evidence proper? According to the court in Jennings, the answer is "no," but not because of § 906.10.

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December 11, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, December 10, 2012

Character Assassination, Take 2: The Mercy Rule & The Same Trait Requirement

Yesterday's post dealt with an interesting aspect of the propensity character evidence proscription and the so-called "mercy rule." Federal Rule of Evidence 404(a) states in relevant part:

(1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.  

(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:  

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;  

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:  

(i) offer evidence to rebut it; and  

(ii) offer evidence of the defendant’s same trait....

As Federal Rule of Evidence 404(a)(2)(B)(ii) makes clear, when the defendant attacks the character of the alleged victim for a pertinent character trait, the prosecution may respond by offering "evidence of the defendant's same trait." Therefore, if a defendant presents evidence that his alleged victim was dishonest, the prosecution could respond by presenting evidence that the defendant is a dishonest person but could not present evidence that the defendant is a violent person. 

The clear implication from Federal Rule of Evidence 404(a)(2)(B)(ii) is that the same deal applies for Federal Rule of Evidence 404(a)(2)(A). In other words, if a defendant presents evidence that he is an honest person, the prosecution could respond by presenting evidence that he is a dishonest person but could not respond by presenting evidence that he is a violent person. In this post, I will give two examples of what I mean, one hypothetical and one actual.

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December 10, 2012 | Permalink | Comments (1) | TrackBack (0)

Sunday, December 9, 2012

Character Assassination?: Court Of Appeals Of Michigan Seemingly Errs In Character Evidence Ruling(s)

Similar to its federal counterpart, Michigan Rule of Evidence 404(a)(1) provides that 

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:  

(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same; or if evidence of a trait of character of the alleged victim of the crime is offered by the accused and admitted under subdivision (a)(2), evidence of a trait of character for aggression of the accused offered by the prosecution....

So, let's say that a mother is on trial for second-degree child abuse. And let's say that the mother introduces character evidence tending to show that she is a compassionate and selfless person. Does the introduction of this character evidence open the door for admission of character evidence regarding the mother's impatience and inability to control her temper? And what about evidence that she mouthed the word "bitch" at a prior court proceeding? According to the recent opinion of the Court of Appeals of Michigan in People v. Rao, 2012 WL 5233608 (Mich.App. 2012), both of these types of rebuttal character evidence were inadmissibleadmissible. I disagree.

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December 9, 2012 | Permalink | Comments (3) | TrackBack (0)