EvidenceProf Blog

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

Friday, December 28, 2012

Hawaii Five-O: Hawai'i Court Finds Official Duty Presumption Inapplicable to Warrantless Arrest

Hawai'i Rule of Evidence 304(c) sets forth a number of presumptions that impose a burden of proof:

(1) Owner of legal title is owner of beneficial title. The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.  

(2) Official duty regularly performed; lawful arrest. It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.  

(3) Intention of ordinary consequences of voluntary act. A person is presumed to intend the ordinary consequences of the person's voluntary act.  

(4) Doing of an unlawful act. An unlawful intent is presumed from the doing of an unlawful act.  

(5) Any court, any judge acting as such. Any court of this State or the United States, or any court of general jurisdiction in any other state or nation, or any judge of such a court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction. This presumption applies only when the act of the court or judge is under collateral attack.  

(6) Ceremonial marriage. A ceremonial marriage is presumed to be valid.  

(7) Death. A person who is absent for a continuous period of five years, during which the person has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead.

In Kaneshiro v. Administrative Director of Courts, 2012 WL 6621141 (Hawai'i App. 2012), the respondent sought to rely upon the presumption contained in Rule of Evidence 304(c)(2). But there was one little problem...

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December 28, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 27, 2012

Dead Man Talking: Court of Appeals of Michigan Finds No Problem With Forfeiture by Wrongdoing Jury Instruction

I've written a good deal recently about the doctrine of forfeiture by wrongdoing. My main focus has been upon whether there is a transferred intent doctrine of forfeiture by wrongdoing, i.e., whether forfeiture applies when a defendant on trial for murdering a prospective witness killed that prospective witness to prevent him from testifying at some other trial (e.g., a robbery trial). The recent opinion of the Court of Appeals of Michigan in People v. Cooley, 2012 WL 6633989 (Mich.App. 2012), however, addressed a different question relating to the doctrine of forfeiture by wrongdoing, albeit one that raises an interesting question connected to transferred intent.

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December 27, 2012 | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 26, 2012

As My Next Witness: Court of Appeals of Kansas Finds Defendant Couldn't Call Prosecutor as Witness

Kansas has statutes precluding judges (KSA 60-442) and jurors KSA 60-443. By implication, then, does the absence of a rule precluding the prosecutor in a trial from testifying mean that prosecutors can be called to testify at trial? According to the recent opinion of the Court of Appeals of Kansas in State v. Rivera, 2012 WL 6642109 (Kan.App. 2012), the answer is "maybe, but not in this case."

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December 26, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 25, 2012

Not a Juror Was Stirring: 5th Circuit Finds No Problem WIth Allen Charge Despite Impending Christmas Holiday

An Allen charge, derived from the Supreme Court's opinion in Allen v. United States, 164 U.S. 492 (1896), is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reachesa verdict. Also referred to as a dynamite charge, a nitroglycerine charge, a shotgun charge, and a third-degree instruction, an Allen charge has been banned by some states, which consider the charge to be unduly coercive. Should the Allen charge also be banned when a major holiday is fast approaching? Should the charge be banned the day before a major holiday? Let's take a look at the recent opinion of the Fifth Circuit in United States v. Montalvo, 2012 WL 4788659 (5th Cir. 2012).

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

Monday, December 24, 2012

Measure for Measure?: 2nd Circuit Fails to Resolve Whether FAA Directive was Inadmissible Under Rule 407

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:  


•culpable conduct;

•a defect in a product or its design;

•or a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

So, let's say that there's an accident, prompting the plaintiff to sue the defendant. And let's say that some third party with regulatory authority over the defendant subsequently issues directives, regulations, etc., mandating that the defendant adopt a remedial measure. Are those directives, regulations, etc. inadmissible pursuant to Rule 407? And does it change the analysis if the defendant's reporting is what led to the issuance of the guidelines, regulations, etc.? Let's take a look at the recent opinion of the Second Circuit in Lidle v. Cirrus Design Corp., 2012 WL 6603388 (2nd Cir. 2012).

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December 24, 2012 | Permalink | Comments (0) | TrackBack (0)