EvidenceProf Blog

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

Saturday, February 11, 2012

It's My Space, That's Why They Call It MySpace, Take 7: Court Of Criminal Appeals Of Texas Upholds Authentication Ruling

Back in October 2010, I posted an entry about the Court of Special Appeals of Maryland finding in Griffin v. State, 2010 WL 2105801 (Md.App. 2010), that the prosecution properly authenticated a MySpace page as one belonging to the defendant's girlfriend pursuant to distinctive characteristics under Maryland Rule of Evidence 5-901(b)(4). Then, last May, I posted an entry about the opinion of the Court of Appeals of Maryland (the state's supreme court), in Griffin v. State, 2011 WL 1586683 (Md. 2011), in which the court reversed the Court of Special Appeals and found that distinctive characteristics were insufficient to authenticate the MySpace page. Recently, in Tienda v. State, 2012 WL 385381 (Tex.Crim.App. 2012), the Court of Criminal Appeals of Texas reviewed a ruling in which a court relied solely upon the opinion of the Court of Special Appeals of Maryand in Griffin to find that a MySpace page was properly authenticated. SO, how did the court rule?

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

Friday, February 10, 2012

The Oh In Ohio: Court Of Appeals Of Ohio Finds Improper Admission Of Learned Treatise As Exhibit Was Harmless Error

Like its federal counterpartOhio Rule of Evidence 803(18) provides an exception to the rule against hearsay for 

Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

I'm inclined to believe that, as with a recorded recollection under Rule 803(5), an appellate court is unlikely to reverse based upon a trial court correctly allowing for the admission of a learned treatise but incorrectly allowing for admission of a learned treatise as an exhibit. And that inclination is born out in the recent opinion of the Court of Appeals of Ohio, Tenth District, in Bradley v. Ohio Dept. of Transp., 2012 WL 385636 (Ohio App. 10 Dist. 2012).

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February 10, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 9, 2012

No Bull: Court Of Appeals Of North Carolina Finds No Rule 612 Error In Dog Larceny Appeal

Similar to its federal counterpart, North Carolina Rule of Evidence 612 allows an attorney to refresh a witness' recollection through a "writing." If this works, the witness may now testify based upon his refreshed recollection but may not red the "writing" to the jury. In State v. Harrison, 2012 WL 387844 (N.C.App.), the defendant appealed his conviction for larceny of a dog, claiming, inter alia, that the trial court erred by allowing a witness for the prosecution to read her prior statement to the jury pursuant to Rule 612. So, he won right? Well, not exactly.

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February 9, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 8, 2012

Going Unnoticed: Sixth Circuit Refuses To Take Judicial Notice In Door-To-Door Canvassing Case

Federal Rule of Evidence 201(b) provides that

The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

So, let's say that a public interest group files a § 1983 action challenging the constitutionality of an ordinance passed in a suburb of Dayton banning all door-to-door canvassing and soliciting between 6 P.M. and 9 A.M. Can the court take judicial notice

-that like many metropolitan areas in the United States, Dayton and its surroundings face difficult, if not severe, economic times; and/or

-of the transformation of American society since 1943 to conclude, as the City urges, that the safety of Englewood's residents depends upon prohibiting door-to-door canvassing after 6 P.M.?

Well, let's take a look at the recent opinion of the Sixth Circuit in Ohio Citizen Action v. City of Englewood, 2012 WL 310816 (6th Cir. 2012).

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February 8, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 7, 2012

Evidence: Rape Shield Rule Now Available For Free As Part Of The eLangdell Project

Recently, I've been working on some chapters for the eLangdell Project. The first of these chapters, covering the Rape Shield Rule, is now available here. You can download a PDF, Word, Kindle, or iPad version for free, and professors can access a teacher's manual from the website. You can also purchase hardcover and paperback versions of the chapter.


February 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Parental Warning: Court Of Criminal Appeals Of Tennessee Finds Parents' Statements Not Covered Under Rule 803(4)

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

Statements made for purposes of medical diagnosis and treatment describing medical history; 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 and treatment.

So, let's say that a child victim is allegedly molested by the defendant. And let's say that the alleged victim's parents, but not the alleged victim herself, then tells a doctor about her statement. Does the parents' statement qualify as a statement for purposes of treatment or diagnosis under Rule 803(4). According to the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Hudson, 2012 WL 344740 (Tenn.Crim.App. 2012), the answer is "no."

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February 7, 2012 | Permalink | Comments (0) | TrackBack (0)

Monday, February 6, 2012

Got Yourself A Gun: 7th Circuit Finds ATF Agent's Testimony About Gun Possession Didn't Violate Rule 704(b)

Federal Rule of Evidence 704(b) provides that

No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

So, let's say that a defendant is charged with one count of manufacturing marijuana, one count of possession of a firearm in furtherance of a drug-trafficking crime, and one count of possession of a firearm by an unlawful user of a controlled substance. And let's say that an ATF agent testifies that a loaded gun found in the defendant's house "was there to protect a marijuana grow operation." Does this testimony violate Rule 704(b)? According to the recent opinion of the Seventh Circuit in United States v. Eller, 2012 WL 350899 (7th Cir. 2012), the answer is "no."

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February 6, 2012 | Permalink | Comments (0) | TrackBack (0)

Sunday, February 5, 2012

In Plain Sight?: 10th Circuit Finds Introduction Of Co-Conspirator Admissions Wasn't Plain Error

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

A statement that meets the following conditions is not hearsay:....The statement is offered against an opposing party and...was made by the party’s coconspirator during and in furtherance of the conspiracy.

I'm not going to say that the recent decision of the Tenth Circuit in United States v. Braden, 2012 WL 287185 (10th Cir. 2012), which deals with Rule 801(d)(2)(E), was wrong, but I will say that it is oddly worded.

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February 5, 2012 | Permalink | Comments (0) | TrackBack (0)