Friday, December 21, 2012
I remember the summer of 1999 like it was yesterday. After graduating from UVA, I was working at Cascino Vaughan Law Offices, Ltd during the day and teaching LSAT prep classes for Princeton Review at night. The law firm had season tickets for the Chicago Cubs, which they occasionally gave to clients. Other times, employees were free to go to the games as long as we got our work done. Like today, the end of 1999 was supposed to be the end of the world, then based on Y2K. Like Peter Gibbons in "Office Space," my job was to change every "99" in the firm's computer code to "1999."
1999 was the year after Mark McGuire and Sammy Sosa "saved" baseball as they simultaneously tried to break Roger Maris' single season home run record. 2000 was the encore as each men again exceeded the mark set by Maris back in 1961. At the time, it seemed beyond question that both of these men would eventually be enshrined in Cooperstown as members of the Baseball Hall of Fame.
Thursday, December 20, 2012
Back in the Habit: Eastern District of Arkansas Finds School Disciplinary Records Inadmissible as Habit Evidence
Federal Rule of Evidence 404(b)(1) provides that
Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
That said, Federal Rule of Evidence 406 provides that
Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
So, when is prior act evidence inadmissible character evidence under Rule 404(b)(1) and when is it admissible habit evidence under Rule 406? Let's take a look at the recent opinion of the United States District Court for the Eastern District of Arkansas in Walls v. Shelby, 2012 WL 6569775 (E.D.Ark. 2012).
Wednesday, December 19, 2012
O Brother: Court of Appeals of Michigan Finds No Error With Character Evidence Ruling in Murder Case
Michigan Rule of Evidence 404(a)(2) provides that
When self-defense is an issue in a charge of homicide, evidence of a trait of character for aggression of the alleged victim of the crime offered by an accused, or evidence offered by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a charge of homicide to rebut evidence that the alleged victim was the first aggressor [is admissible].
That said, Michigan Rule of Evidence 405(a) provides that
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into reports of relevant specific instances of conduct.
So, where did these two rules leave the defendant in People v. Harvey, 2012 WL 6177090 (Mich.App. 2012)?
Tuesday, December 18, 2012
I'm Incomplete: 7th Circuit Funds Excerpted Copies From Transcript Inadmissible Under Best Evidence Rule
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
On such rule that "provides otherwise" is Federal Rule of Evidence 1003, which states that
A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.
So, when is it" unfair to admit the duplicate" under Rule 1003? Well, let's take a look at the recent opinion of the Seventh Circuit in Brown v. Advocate South Suburban Hosp., 2012 WL 5870725 (7th Cir. 2012).
Monday, December 17, 2012
Better Evidence or Best Evidence?: Court of Appeals of Minnesota Finds Best Evidence Rule Doesn't Apply to Confession
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Legislative Act.
As the recent opinion of the Court of Appeals of Minnesota in State v. Rowland, 2012 WL 6554539 (Minn.App. 2012), makes clear, however, this best evidence rule does not apply when a witness has independent personal knowledge of the contents of the writing, recording, or photograph.