Saturday, February 25, 2012
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....
That said, Minn.Stat. § 634.20 provides in relevant part that
Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence....
Friday, February 24, 2012
If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
So, let's say that, in response to a forgetful child witness, the prosecutor reads questions and answers from a transcript of the witness' prior testimony aloud and asks the child to confirm that the transcript was accurate. Is this procedure proper? According to the recent opinion of the Supreme Court of Arkansas in Sullivan v. State, 2012 WL 580595 (Ark. 2012), the answer is "yes." I disagree.
Thursday, February 23, 2012
Federal Rule of Evidence 404(a)(2)(B) provides that
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....
In People v. Malone, 2012 WL 555791 (Mich.App. 2012), Harvey Malone, Jr. appealed from his convictions for one count of carrying a concealed weapon and one count of felony-firearm, claiming that the trial court erred by precluding him from presenting character evidence concerning the alleged victim. If his case were governed by the Federal Rules of Evidence, he would have been correct. But his case wasn't governed by the Federal Rules.
Wednesday, February 22, 2012
Shop Smart, Shop S-Mart: Court Of Appeals Of North Carolina Finds No Reversible Error Despite Character Evidence
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment or accident.
So, let's say that a defendant is charged with larceny by antishoplifting or inventory control device based upon a theft at Target store. And let's say that the prosecutor asks the senior asset protection specialist at the Target store what drew his attention to the defendant and his wife. Can the witness testify that he focused upon the defendant and his wife because of prior crimes that they committed consistent with Rule 404(b)? Let's look at the recent opinion of the Court of Appeals of North Carolina in State v. Colon, 2012 WL 549383 (N.C.App. 2012).
Tuesday, February 21, 2012
Is There A Doctor In The Courtroom?: Alabama Court Finds No Problem With Prosecution Expert Hearing Defense Experts' Testimony
Yesterday, I posted an entry about an expert defense witness not being allowed to testify concerning certain subjects pursuant to the "Rule on Witnesses" because he was exposed to the testimony of an expert witness for the prosecution before giving his own testimony. But isn't one main purpose of calling a defense expert (often) to have that expert rebut the testimony of the expert witness for the prosecution, meaning that we would want the defense expert to be exposed to the prosecution's expert's testimony before testifying (and vice versa)? This is of course true, which is why application of the "Rule on Witnesses" to expert witnesses (and, indeed, all witnesses) is discretionary as is made clear by the recent opinion of the Court of Criminal Appeals of Alabama in Thompson v. State, 2012 WL 520873 (Ala.Crim.App. 2012).
Monday, February 20, 2012
You've Got Mail: Trial Judge Applies "Rule On Witnesses" To Circumscribe Defense Expert Testimony In Huguely Trial
You may have heard about the current prosecution of former University of Virginia lacrosse player George Huguely for the murder of fellow UVA lacrosse player Yeardley Love. It has been a case that brought the prosecutor to tears as he showed photographs of the victim's battered body to jurors during closing arguments. It has been a case in which prosecution and defense experts have clashed over whether the victim died from blunt force trauma to the head. And it has been a case in which the trial judge circumscribed the testimony of a key expert witness for the defense. In this post, I will address this last matter.
Sunday, February 19, 2012
Another State Of Mind: Supreme Court Of Arkansas Finds Statement Regarding Threat Admissible Under Rule 803(3)
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition, such as intent, plan, motive, design, mental feeling, pain, and bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
So, does a declarant's statement that there were threats against her life admissible under Rule 803(3)? According to the recent opinion of the Supreme Court of Arkansas in Wedgeworth v. State, 2012 WL 503886 (Ark. 2012), the answer is "yes." I disagree.