Saturday, March 3, 2012
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
As the recent opinion of the Court of Appeals of Texas, Corpus Christi–Edinburg, in Cantu v. State, 2012 WL 664939 (Tex.App.-Corpus Christi 2012), makes clear, however, (1) the rules of evidence don't apply strictly at sentencing; and (2) autopsy photos are generally deemed admissible under Rule 403.
Friday, March 2, 2012
Federal Rule of Evidence 801(d)(1)(A) provides that a statement is not hearsay if
The declarant testifies and is subject to cross-examination about a prior statement, and the statement:....is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....
Meanwhile, Arizona Rule of Evidence 801(d)(1)(A) provides that
A statement is not hearsay if....The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony....
What this means is that a prior inconsistent statement not given under the penalty of perjury is hearsay under the Federal Rules of Evidence but is not hearsay under the Arizona Rules of Evidence as is made clear by the recent opinion of the Court of Appeals of Arizona, Division 2, Department B, in State v. Bacon, 2012 WL 642867 (Ariz.App. Div. 2 (2012).
Thursday, March 1, 2012
The Whole Truth: Court Of Appeals Of Minnesota Finds Trial Court Improperly Rejected Defendant's Oath
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
Of course, the traditional oath involves a witness placing his or her hand on the Bible and answering, "I do" to the question, "Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?" But what if a witness doesn't want to be given this traditional oath for religious or other reasons? What if, for instance, the defendant simply wants to declare, "I solemnly undertake to tell the truth." If the trial court thereafter refuses to allow him to testify, is the defendant entitled to a new trial? According to the recent opinion of the Court of Appeals of Minnesota in State v. Corrigan, 2012 WL 612313 (Minn.App. 2012), the answer is "yes."
Wednesday, February 29, 2012
Leafy Greens: Court Of Appeals Of Mississippi Finds (Harmless) Error In Admission Of Marijuana Evidence To Prove Motive
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 or accident.
So, let's say that a defendant is charged with armed robbery. And let's say that when the defendant was arrested for this crime, a "green leafy substance" was recovered from his vehicle. Is evidence of this substance admissible to prove his motive for committing the robbery. Let's take a look at the recent opinion of the Court of Appeals of Mississippi in State v. Smith, 2012 WL 613324 (Miss.App. 2012).
Tuesday, February 28, 2012
If you've taught Evidence, you've likely taught Shepard v. United States, 290 U.S. 96 (1933), the (in)famous dying declaration case. If you taught the case, you know the basic facts. Zenana Shepard had taken ill and told a nurse that her husband, Dr. Charles A. Shepard poisoned her. Zenana thereafter died and her husband was charged with her murder. An autopsy determined that Zenana died from poisoning by bichloride of mercury, which Dr. Shepard kept in his medicine chest. At trial, the nurse testified to Zenana's accusatory statement, and Dr. Shepard was convicted of murder, with the alleged motive being that he wanted to take up with another woman. Dr. Shepard thereafter appealed, with the Supreme Court ultimately concluding in an opinion drafted by Justice Cardozo that Zenana's statement was not admissible as a dying declaration because it was not given while Zenana believed that she was knockin' on heaven's door. Instead,
Her illness began on May 20. She was found in a state of collapse, delirious, in pain, the pupils of her eyes dilated, and the retina suffused with blood. The conversation with the nurse occurred two days later. At that time her mind had cleared up, and her speech was rational and orderly. There was as yet no thought by any of her physicians that she was dangerously ill, still less that her case was hopeless. To all seeming she had greatly improved, and was moving forward to recovery. There had been no diagnosis of poison as the cause of her distress. Not till about a week afterwards was there a relapse, accompanied by an infection of the mouth, renewed congestion of the eyes, and later hemorrhages of the bowels.
The opinion in Shepard tells a good story, and it is a good way to illustrate the scope and limitations of the dying declaration exception to the rule against hearsay. But what's the full story? That question is taken up by Kyle Graham, a professor at the Santa Clara University School of Law in a recent post on his blog, noncuratlex.com.
Monday, February 27, 2012
Conduct Unbecoming An Officer: Appellate Court Affirms Court-Martial's Finding Despite Character Evidence Error
Similar to its federal counterpart, Military Rule of Evidence 414 states in relevant part that
(a) In a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused's commission of one or more offenses of child molestation is admissible....
(d) For purposes of this rule, “child” means a person below the age of sixteen....
In its recent opinion in United States v. Reynard, 2012 WL 592774 (Army Ct.Crim.App.,2012), the U.S. Army Court of Criminal Appeals found that a military judge improperly admitted evidence that was not admissible under Rule 414, and yet the court still affirmed the court-martial's finding of guilty and the appellant's sentence. Why?
Sunday, February 26, 2012
Indiana Rule of Evidence 704(b) provides that
Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.
So, if such testimony is offered and opposing counsel fails to object, would the admission of such testimony constitute plain error necessitating a new trial? According to the recent opinion of the Court of Appeals of Indiana in Gutierrez v. State, 2012 WL 560048 (Ind.App. 2012), the answer is "yes."