EvidenceProf Blog

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

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Saturday, February 18, 2012

Violent Reaction: Supreme Court Of Arkansas Finds No Problem With Impeachment Of Defendant Charged With Murder

Similar to its federal counterpartArkansas Rule of Evidence 609(a) provides that

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.  

So, let's say that a defendant is charged with murdering his stepfather. If he is willing to stipulate that he is a prior felon, should the court allow the prosecutor to delve into the details of those prior convictions if they involved crimes of violence against other family members? According to the recent opinion of the Supreme Court of Arkansas in Ellis v. State, 2012 WL 503880 (Ark. 2012), the answer is yes.

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February 18, 2012 | Permalink | Comments (0) | TrackBack (0)

Friday, February 17, 2012

Chicken And Waffles And Opinions?: 9th Circuit Oddly Cites To Rule 701 In ASCAP Copyright Action Against Roscoe's Parent Company

Federal Rule of Evidence 701 provides that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

So, under Rule 701, can a lay witness identify certain songs that he heard in a restaurant? According to the recent opinion of the Ninth Circuit in Range Road Music, Inc. v. East Coast Foods, Inc., 2012 WL 502510 (9th Cir. 2012), the answer is "yes."

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February 17, 2012 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 16, 2012

Picture (Im)Perfect: Court Of Appeals Of Iowa Finds No Problem With Admission Of Photos Of Subsequent Remedial Measures

Similar to its federal counterpart, Iowa Rule of Evidence 5.407 provides that

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered in connection with a claim based on strict liability in tort or breach of warranty or for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But what if evidence of a subsequent remedial measure is offered to prove the condition of the site of an accident? According to the recent opinion of the Court of Appeals of Iowa in Maiers v. Gansen, 2012 WL 469747 (Iowa App. 2012), such a use is proper. Based upon the facts of the case, I disagree.

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February 16, 2012 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 15, 2012

Impeachable Offenses: District Of Colorado Addresses Admissibility Of Several Convictions

Federal Rule of Evidence 609(a) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

Meanwhile, according to Federal Rule of Evidence 609(b):

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

In its recent opinion in Ulibarri v. City & County of Denver, 2012 WL 422605 (D.Colo. 2012), the United States District Court for the District of Colorado dealt with several convictions that were covered by either Rule 609(a) or Rule 609(b). So, did it get the analysis right?

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February 15, 2012 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 14, 2012

Just The Facts: EDNC Applies Rule 414 In Limited Fashion In Child Molestation Case

Federal Rule of Evidence 414(a) provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, when are prior acts of child molestation relevant, and when are they irrelevant? And, when is the probative value of such acts outweighed by the danger of unfair prejudice? These were the questions addressed by the United States District Court for the Eastern District of North Carolina in its recent opinion in United States v. Mason, 2012 WL 380325 (E.D.N.C. 2012).

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

Monday, February 13, 2012

A Foolish Consistency, Take 2: 6th Circuit Finds Harmless With Admission Of Alleged Prior Consistent Statement

Federal Rule of Evidence 801(d)(1)(B) provides that

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying....

As I noted yesterday, the main precondition for admitting a prior consistent statement under Rule 801(d)(1)(B) is that the prior statement be made before the improper influence or motive arose. That wasn't the case in the Diallo case that I posed about yesterday, and it also wasn't the case in United States v. Sperl, 2012 WL 373313 (6th Cir. 2012). But in each case, the court found harmless error. As with other rules of evidence, these cases prompt me to ponder how likely it is that a court would reverse a conviction based upon a Rule 801(d)(1)(B) violation.

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

Sunday, February 12, 2012

A Foolish Consistency: 2nd Circuit Finds No Plain Error With Admission Of Prior Consistent Statement

Federal Rule of Evidence 801(d)(1)(B) provides that

A statement that meets the following conditions is not hearsay:...

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:...

is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying....

Of course, the main precondition for admitting a prior consistent statement under Rule 801(d)(1)(B) is that the prior statement be made before the improper influence or motive arose. That wasn't the case in United States v. Diallo, 2012 WL 386421 (2nd Cir. 2012), so what did the Second Circuit do?

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