EvidenceProf Blog

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

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Thursday, February 28, 2013

The Guardian: Supreme Court of Colorado Finds Guardian Ad Litem Holds Child's Privilege in Parental Rights Case

Like most states, Colorado has a psychotherapist-patient privilege. Colorado's privilege, contained in Colorado Revised Statute Section 13-90-107(g), provides that

A licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor shall not be examined without the consent of the licensee's, certificate holder's, or registrant's client as to any communication made by the client to the licensee, certificate holder, or registrant or the licensee's, certificate holder's, or registrant's advice given in the course of professional employment; nor shall any secretary, stenographer, or clerk employed by a licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor be examined without the consent of the employer of the secretary, stenographer, or clerk concerning any fact, the knowledge of which the employee has acquired in such capacity; nor shall any person who has participated in any psychotherapy, conducted under the supervision of a person authorized by law to conduct such therapy, including group therapy sessions, be examined concerning any knowledge gained during the course of such therapy without the consent of the person to whom the testimony sought relates.

Normally, the patient is the holder of the psychotherapist-patient privilege and can decide whether to waive the privilege. When, however, "the patient is a child who is too young or otherwise incompetent to hold the privilege, the child's parent typically assumes the role of privilege holder." In such cases, it is typically the child's parent or parents who have the authority to decide whether to waive the privilege. But what happens when there is an action to terminate the parental rights of the child's parent(s)? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013).

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February 28, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 27, 2013

Dying Declarations?: Should Courts Apply a Rule 403 Analysis to Questionable Hearsay Exceptions?

Similar to its federal counterpartNew Jersey Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness because of death is admissible if it was made voluntarily and in good faith and while the declarant was conscious of declarant's impending death. 

And, similar to its federal counterpartNew Jersey Rule of Evidence 403 states that

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Many people criticize Rule 804(b)(2) because dying declarations are often made while the victim is in a hypoxic or anoxic state that can cause delirium, which would greatly undermine the reliability of the dying declarant's statement. The problem for defendants, however, is that Rule 804(b)(2) isn't going anywhere any time soon. So, what if a defendant claimed that a defendant that qualifies for admission under Rule 804(b)(2) should still be excluded under Rule 403? Let's take a look at the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Bacon-Vaughters, 2013 WL 656248 (N.J.Super.A.D. 2013).

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February 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2013

All Sense of Proportion: Can a Probable Cause Affidavit Qualify as a Present Sense Impression?

Similar to its federal counterpartIndiana Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter.

And, similar to its federal counterpartIndiana Rule of Evidence 803(8), provides an exception to the rule against hearsay (unless the sources of information or other circumstances indicate lack of trustworthiness)

[for] records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

So, let's say that a police officer fills out a probable cause affidavit while waiting 20 minutes before administering a chemical breath test on a suspect. Would that affidavit be admissible under Rule 803(1) or inadmissible under Rule 803(8)? Let's take a look at the recent opinion of the Court of Appeals of Indiana in Jones v. State, 2013 WL 500799 (Ind.App. 2013).

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February 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

The Rule of Evidence That's Never Applied, Take 3: Former Jury Venireman as Witness?

As I noted last week, I have yet to find a single case in which a court has applied Federal Rule of Evidence 606(a), which provides that

A juror may not testify as a witness before the other jurors at the trial.If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

I did, however, post about two cases (here and here) in which courts applied the principles of Rule 606(a) to the proffered testimony of two former jurors. Now, courtesy of Ann Murphy, let's take a look at United States v. Kills Enemy, 3 F.3d 1201 (8th Cir. 1993), in which the prosecution called a former jury venireman at trial.

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February 25, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, February 22, 2013

No Exit: Florida Court Deems Evidence of Attempted Suicide Admissible to Prove Consciousness of Guilt

An individual is a suspect in a crime. That individual flees from the relevant jurisdiction and hides out in another jurisdiction before being apprehended and charged with the subject crime. At trial, the prosecution will be able to present evidence of the defendant's flight as circumstantial evidence of his consciousness of guilt.

An individual is a suspect in a crime. The individual tries to kill himself. At trial, will the prosecution be able to present evidence of the defendant's suicide attempt as circumstantial evidence of his consciousness of innocence? According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in Sloan v. State, 2013 WL 85449 (Fla.App. 4 Dist. 2013), the answer is "yes."

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February 22, 2013 | Permalink | Comments (2) | TrackBack (0)

Thursday, February 21, 2013

Joe Paterno, Grand Jury Presentments, and the Rule Against Hearsay

Last week, Brian Gallini presented the paper, Bringing Down a Legend: How an 'Independent' Grand Jury Ended Joe Paterno's Career, at the University of South Carolina School of Law. The paper deals with Pennsylvania's grand jury presentment, a grand jury communication to the public concerning the grand jury's investigation. While Federal Rule of Criminal Procedure 6(e)(2) and many state counterparts ensure the secrecy of grand jury proceedings, the presentments issued in Pennsylvania and other states allow grand juries to serve as the mouthpiece of prosecutors, who can prove their cases in the court of public opinion. Sometimes, however, a grand jury presentment isn't just about proving a case. Professor Gallini uses the Jerry Sandusky/Joe Paterno imbroglio as an avenue through which to discuss the conceptual problem of grand jury presentments and third parties who are not the subjects of grand jury investigations. This was certainly the case in Pennsylvania when a grand jury was convened to investigate allegations of child molestation against Jerry Sandusky and ended up issuing a presentment that ensnared the legendary coach in its net. The result of the presentment for Sandusky was that his case could proceed to trial. The result for Paterno was that he could be fired from his job. We might think that both of these were the correct results, and they might indeed both have been proper outcomes.

But that's not really that question. The question, according to Gallini, is the process (not) afforded to Paterno and other third parties mentioned in grand jury presentments. Most grant juries proceed with a prosecutor presenting his case to grand jurors with no role for defense counsel to present any evidence or cross-examine any witnesses. Prosecutors generally have no obligation to present exculpatory evidence to grand jurors, and they can present evidence that was unconstitutionally obtained and inadmissible under the rules of evidence. To what extent should the press report, and the public believe, findings in a grand jury presentment? What about employers? And to what extent does the analysis change when those findings relate to third parties rather than the target of the grand jury investigation? These are fascinating questions, and they have already led my colleague Derek Black to write an interesting post on the subject at The Faculty Lounge.

In this post, I will focus on Evans v. Com., Unemployment Compensation Bd. of Review, 484 A.2d 822 (Pa.Cmwlth 1984), which deals with some of these issues and the question of whether a grand jury presentment is hearsay when admitted to prove the reason why a third party mentioned in it was fired.

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February 21, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 20, 2013

The Rule of Evidence That's Never Applied, Take 2: Former Juror as Witness

Federal Rule of Evidence 606(a) provides that

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

As noted in yesterday's post, I have yet to come across a case in which a member of the jury testified or was precluded from testifying pursuant to Rule 606(a). But I have come across two cases in which former jurors were precluded from testifying. One of those cases is Broadhead v. State Farm Mut. Auto. Ins. Co., 579 N.W.2d 761 (Wis.App. 1998), which I discussed yesterday. The other case is People v. Knox, 157 Cal.Rptr. 238 (Cal.App. 1979), which I will discuss today. 

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February 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2013

The Rule of Evidence That's Never Applied: Federal Rule of Evidence 606(a) and Jurors as Witnesses

Federal Rule of Evidence 606(a) provides that

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

As long as I have been teaching Rule 606(a), I haven't come across a single case in which the Federal Rule of a state counterpart has been applied. If any readers are aware of any such cases, please pass them along. Meanwhile, in the next 2 days, I will post entries about cases that almost involved application of Rule 606(a). Both of them involve similar fact patterns: a juror discharged by the judge later being called as a witness by one of the parties.

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February 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, February 18, 2013

Structural Integrity: District of Minnesota Finds Judicial Testimony is Not Normally Structural Error

Federal Rule of Evidence 605 provides that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

But while a party does dot need to object to a judge's testimony to preserve the issue for appellate review, is judicial testimony normally structural error necessitating a new trial without a showing of actual prejudice? According to the recent opinion of the United States District Court for the District of Minnesota in Kachina v. Roy, 2012 WL 6965116 (D. Minn. 2012), the answer is "no."

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February 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, February 15, 2013

Watch Your Step: Supreme Court of Connecticut Finds Subsequent Remedial Measure Evidence Improperly Admitted

Section 4-7 of the Connecticut Code of Evidence states: 

(a) General rule. Except as provided in subsection (b), evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures.
(b) Strict product liability of goods. Where a theory of liability relied on by a party is strict product liability, evidence of such measures taken after an event is admissible.

The recent opinion of the Supreme Court of Connecticut in Duncan v. Mill Management Co. of Greenwich, Inc., 2013 WL 515490 (Conn. 2013), does a nice job of breaking down the justifications for the section and when it does and doesn't apply.

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February 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2013

From Under the Shield: Court of Appeals of Texas Finds Rape Shield Rule Doesn't Cover Alleged Victim's Sexual Misconduct

Similar to its federal counterpartTexas Rule of Evidence 412 states s in relevant part:

(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.  

(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:  

(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;  

(2) it is evidence:  

(A) that is necessary to rebut or explain scientific or medical evidence offered by the State; 

(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;  

(C) that relates to the motive or bias of the alleged victim;  

(D) is admissible under Rule 609; or  

(E) that is constitutionally required to be admitted; and  

(3) its probative value outweighs the danger of unfair prejudice.

The typical evidence excluded under such rape shield rules is evidence proffered by a defendant concerning the victim's alleged character for promiscuity to prove her propensity to consent to sexual conduct and her likely conformity with that propensity at the time of the crime charged. But what if the evidence of the alleged victim's past sexual behavior that the defendant seeks to admit is evidence of past sexual misconduct? Let's take a look at the recent opinion of the Court of Appeals of Texas, Waco, in Johnson v. State, 2013 WL 531079 (Tex.App.-Waco 2013).

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February 14, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 13, 2013

Baskin Robbed?: Court of Appeals of Mississippi Finds Trial Court Erred In Allowing Impeachment Via Petty Larceny Conviction

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

For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

 So, let's say that a defense witness has prior convictions for misdemeanor embezzlement and petty larceny. Can the prosecution impeach the witness through either, both, or neither of these convictions pursuant to Rule 609(a)? Let's take a look at the recent opinion of the Court of Appeals of Mississippi in Baskin v. State, 2013 WL 500762 (Miss.App. 2013).

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February 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 12, 2013

Foster the People: Court of Appeals of Texas Finds Judge's Instruction Wasn't Improper Testimony Under Rule 605

Similar to its federal counterpartTexas Rule of Evidence 605 provides that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

So, assume that the Department of Family and Protective Services ("Department") brings an action seeking, inter alia, termination of a mother's parental rights. Then, during trial, assume that the Department decides to seek only termination of parental rights. If the judge, over defense counsel's objection, instructs the jury

I'm going to go ahead and address the jury at this time to make it abundantly clear. The State has elected, and had elected prior to trial, to proceed on termination only. So there are no other alternatives that will be in front of the jury other than termination of parental rights.

Does this instruction violate Rule 605? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in In re C.C.K., 2013 WL 452163 (Tex.App.-Fort Worth 2013), the answer is "no."

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February 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, February 11, 2013

Updated Version of Anchors Away Now Available on SSRN

After a few years of working on it, I finally have completed my article, Anchors Away: Why the Anchoring Effect Suggests that Judges Should be Able to Participate in Plea Discussions. I have now posted an updated version of the article on SSRN. Here is the abstract:

The "anchoring effect" is a cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias. 

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains. This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.

-CM

February 11, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, February 8, 2013

Back in the Habit: Supreme Court of West Virginia Finds Jury Instruction Constituted Improper Habit Evidence

Similar to its federal counterpartWest Virginia Rule of Evidence 406 provides that 

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 

If you're looking for a great case to read to understand the ins and outs of Rule 406, you need look no further than Rodgers v. Rodgers, 399 S.E.2d 664 (W.Va. 1990).

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February 8, 2013 | Permalink | Comments (1) | TrackBack (0)

Thursday, February 7, 2013

Habit Forming Behavior: Court of Appeals of Michigan Finds Doctor's Testimony About Blood Draw Admissible Under Rule 406

Similar to its federal counterpartMichigan Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

A student in my Evidence class today asked whether expert witnesses may testify regarding their habit of complying with certain procedures pursuant to Rule 406. Let's take a look at Zyskowski v. Habelmann, 388 N.W.2d 315 (Mich.App. 1986), to see the answer.

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February 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 6, 2013

Truth & Consequences: Court of Appeals of Minnesota Finds No Rule 608(b) Error With Sergeant's Misconduct

Similar to its federal counterpart, Minnesota Rule of Evidence 608(b) provides that

Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

I think that the Court of Appeals of Minnesota in State v. Sherman, 2013 WL 399242 (Minn.App. 2013), erred in precluding the defendant from impeaching a sergeant with evidence of past misconduct under Rule 608(b). Do you agree?

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February 6, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, February 4, 2013

Incommunicado: Court of Appeals of Texas Finds Trial Court Properly Precluded Defendant From Admitting Character Evidence

Texas Rule of Evidence 404(a) provides that

Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:  

(1) Character of accused. Evidence of a pertinent character trait offered:  

(A) by an accused in a criminal case, or by the prosecution to rebut the same, or  

(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;  

(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;  

(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.

Moreover, Texas Rule of Evidence 405(a) provides that

In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

In other words, at a criminal trial in which the defendant is not being prosecuted for homicide, unless the defendant introduces propensity character evidence, the prosecution cannot introduce propensity character evidence ("once a criminal, always a criminal," "once a burglar, always a burglar, etc."). The defendant, however, can open Pandora's box and present propensity character evidence concerning himself and/or the alleged victim. As Rule 405(a) makes clear, however, the only proper form of evidence that a character witness can render on direct examination is reputation ("I've been the victim's neighbor for the past 5 years, and he has a terrible reputation in the neighborhood for violence.") and opinion ("I've known the victim for 5 years, and in my opinion, he's a violent person") testimony. Moreover, as Rule 404(a) makes clear, once the defendant has presented propensity character evidence, the prosecution can then rebut this evidence with its own propensity character evidence. 

As the recent opinion of the Court of Appeals of Texas in Williams v. State, 2013 WL 341900 (Tex.App.-Dallas 2013), makes clear, however, none of the above matters if a defendant is introducing character evidence under the "communicated character " doctrine.

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February 4, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, February 1, 2013

Not a Happy Ending: Eastern District of Michigan Finds Habit Evidence Inadmissible in Masseuse's Appeal

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

So, let's say that a masseuse is charged with one count of third-degree criminal sexual conduct and six counts of fourth-degree criminal sexual conduct after four of his clients accused him of inappropriately touching them while he was massaging them. Can the masseuse call several of his other clients to testify pursuant to Rule 406 that he never inappropriately touched them? According to the recent opinion of the United States District Court for the Eastern District of Michigan in Parr v. Berghuis, 2012 WL 5906860 (E.D.Mich. 2012), the answer is "no."

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February 1, 2013 | Permalink | Comments (2) | TrackBack (0)