EvidenceProf Blog

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

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Tuesday, December 31, 2013

Ex Post Conspiracy: D.C. Circuit Finds Statements Made After Conspiracy Improperly Admitted Under Rule 801(d)(2)(E)

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.

As the language of Rule  801(d)(2)(E) makes clear, co-conspirator statements are only admissible if they are made "during and in furtherance of the conspiracy." Therefore, any statements made after the conspiracy is over, such as statements made after apprehension, are inadmissible under the Rule. This takes us to United States v. Miller, 2013 WL 6818391 (D.C. Cir. 2013).

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December 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, December 30, 2013

Honestly?: Court of Appeals of Minnesota Finds Prosecution Improperly Bolstered Victim's Credibility

Similar to its federal counterpartMinnesota Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

In other words, under Rule 608(a), a witness's credibility cannot be bolstered until it has been attacked. In State v. Varnado, 2013 WL 6839693 (Minn.App. 2013), this protocol was not followed with a witness for the prosecution. But was this error enough for a reversal?

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December 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, December 26, 2013

Constructive Criticism: 9th Circuit Fins Statements Made to FBI Agent Not Covered by Rule 410

Federal Rule of Evidence 410(a)(4) states as follows:

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

A question that has split the courts is how strictly the phrase "plea discussions with an attorney for the prosecuting authority" should be construed. For instance, does Rule 410(a)(4) require the physical presence of the prosecutor to apply? That was the question addressed by the Ninth Circuit in its recent opinion in United States v. Zamastil, 2013 WL 6698624 (9th Cir. 2013).

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

Wednesday, December 25, 2013

Plea No: 11th Circuit Finds Debriefing Session Didn't Constitute Plea Discussions Under Rule 410

Federal Rule of Evidence 410(a)(4) states as follows:

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....

(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea.

But when exactly are there qualifying plea discussions? Most courts utilize the test created by United States v. Robertson, 582 F.2d 1356 (5th Cir. 1976), which requires a defendant to prove

(1) that he exhibited an actual subjective expectation to negotiate a plea at the time of the discussion; and (2) that this expectation was reasonable given the totality of the circumstances.

It's rare that the prosecutor will have direct evidence to disprove the first tier of this test. But that's exactly what the prosecution had in Hogan v. United States, 2013 WL 6670630 (11th Cir. 2013).

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

Tuesday, December 24, 2013

The Big C: Michigan Court Finds Declarant's Cancer Rendered Her "Unavailable" Under Rule 804(a)(4)

Similar to its federal counterpartMichigan Rule of Evidence 804(b)(1) provides an exception to the rule againsat hearsay for

Testimony given as a witness at another hearing of the same or different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A record of testimony given before courts-martial, courts of inquiry, military commissions, other military tribunals, and before proceedings pursuant to or equivalent to those required by Article 32 is admissible under this subdivision if such a record is a verbatim record. This paragraph is subject to the limitations set forth in Articles 49 and 50.

And, similar to its federal counterpartMichigan Rule of Evidence 804(b)(1) only allows for the admission of such former testimony if the declarant is "unavailable." A declarant is "unavailable," if, inter alia, he "is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity...." Michigan Rule of Evidence 804(a)(4). So, what exactly does it tale to satisfy Rule 804(a)(4)? Let's take a look at People v. Conner, 2013 WL 6690493 (Mich.App. 2013).

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December 24, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, December 23, 2013

In My Expert Opinion: Judge Posner Implores Court to Appoint Expert in Appeal of Wisconsin Abortion Law

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As I have noted before, court rarely appoint their own experts under Rule 706(a) and appellate courts rarely if ever find that district courts have to appoint their own experts. The recent opinion of the Seventh Circuit in Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 2013 WL 6698596 (7th Cir. 2013), doesn't necessarily buck that trend, but it comes awfully close.

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December 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, December 20, 2013

Litigation Happens Over Coffee: Northern District of California Finds No Settlement Privilege in Class Action Against Starbucks

Following up on yesterday's post today I wanted to post an entry that deals directly with the question of whether Federal Rule of Evidence 408 creates a federal settlement privilege. To answer that question, let's take a look at Vondersaar v. Starbucks Corp., 2013 WL 1915746 (N.D.Cal. 2013), a putative class action against the coffee chain.

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

Thursday, December 19, 2013

Next Questions in the Eyewitness Identification Reform Debate

The below article by D. Michael Risinger (Seton Hall) recently appeared on the SSRN wire.  It addresses the provocative question of what goes into “cost” side of the balance when considering eyewitness identification reform proposals:

"At What Cost?: Blind Testing, Eyewitness Identification, and the Question of What Can and Cannot Be Counted as a Cost of Reducing Information Available for Decision"  

The piece responds to an article by Steven E. Clark (UC Riverside):

Costs and Benefits of Eyewitness Identification Reform: Psychological Science and Public Policy Perspectives on Psychological Science May 2012 7: 238-259

The issue that Clark's piece is published in contains a whole manner of fascinating  takes on the topic by notable authors, including Elizabeth Loftus, Larry Laudan, and Gary Wells.

The table of contents is available here (subscription required to dowload articles).

- JB

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

Fly With US: Maine District Court Finds No Heightened Relevance Standard Applies To Settlement Discovery

Federal Rule of Evidence 408 reads as follows:

(a) Prohibited Uses.

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:  

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and  

(2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.  

(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

Many litigants have tried to claim that Rule 408 creates a settlement privilege. As far as I can tell, none of them have been successful. In Barclay v. Gressit, 2013 WL 3819937 (D.Me. 2013), the plaintiff did not assert that such a privilege existed but claimed that a party needs to make a heightened showing of relevance before settlement evidence is discoverable. So, how did he fare?

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

Wednesday, December 18, 2013

Affluenza Season, Take 3: Affluenza, Diminished Capacity & the Twinkie Defense

Today, I wanted to finish up my affluenza troika by considering the possible parallels between affluenza and the diminished capacity defense. This post follows up on my prior two posts (here and here) about the case out of Texas in which 16 year-old Ethan Couch used evidence that he suffered from affluenza as mitigation evidence during sentencing to lessen his criminal penalty. The response to the case has been widespread, with sources generally questioning the existence of affluenza and/or whether it should apply at a criminal trial.

In many ways, the blowback has been similar to the reaction after Dan White successfully use the defense of diminished capacity at his trial for murdering Mayor George Moscone and Supervisor Harvey Milk. You might recall this as the famous "Twinkie defense" case.

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

Tuesday, December 17, 2013

Affluenza Season, Take 2: Why the Ethan Couch Case Did Not Create an "Affluenza Defense"

Yesterday, I posted an entry about Ethan Couch, the Texas teen who was able to present evidence that he suffers from "affluenza" to reduce his criminal penalty after being convicted of vehicular manslaughter. Over the last few days, a number of sources (see, e.g., herehere, and here) have labeled what Couch did the "affluenza defense" and questioned how evidence of this defense was ever deemed admissible under the expert evidence rules. The short answer is that it wasn't.

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December 17, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, December 16, 2013

Affluenza Season: Considering the Role That Socioeconomic Status Should Play in Sentencing Decisions

The has been a nationwide reaction to the prosecution of 16 year-old Ethan Couch in Texas. The teen was convicted of vehicular manslaughter due to drink driving, meaning that he could have been given a sentence of up to 20 years incaraceration and a fine of up to $10,000. Instead, Couch was given 10 years probation. Why? Couch's lawyer presented evidence during the sentencing phase of trial that Couch suffers from "affluenza."

The term "affluenza" was popularized in the late 1990s by Jessie O'Neill, the granddaughter of a past president of General Motors, when she wrote the book "The Golden Ghetto: The Psychology of Affluence." It's since been used to describe a condition in which children - generally from richer families - have a sense of entitlement, are irresponsible, make excuses for poor behavior, and sometimes dabble in drugs and alcohol, explained Dr. Gary Buffone, a Jacksonville, Fla., psychologist who does family wealth advising.

The question in the wake of the Couch case is thus whether it is proper to use a defendant's socioeconomic status to decrease his criminal penalty. Today, I'm going to try to answer that question by looking at whether courts can use a defendant's socioeconomic status to increase his criminal penalty.

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December 16, 2013 | Permalink | Comments (1) | TrackBack (0)

Friday, December 13, 2013

Court of Appeals of Georgia Deems Evidence of Plaintiff's Past Abortions Admissible

A plaintiff sues  her OBGYN and her practice group, alleging that she suffered serious injuries as a result of Dr. Montano's negligent performance of an intrauterine surgical procedure. Can the defendants present evidence that the plaintiff had previously undergone several abortion procedures? According to the recent opinion of the Court of Appeals of Georgia in Cartledge v. Montano, 2013 WL 6085238 (Ga.App. 2013), the answer is "yes."

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

Thursday, December 12, 2013

Justice Breyer Turns to “the Google Maps”

As noted earlier on this blog, Andrew Ferguson and I have been exploring the judicial notice possibilities raised by the exponential increase in access to information through the Internet. 

Our forthcoming piece points out the strong urge for judges, jurors and parties to clarify ambiguities and omissions in the record through resort to Internet sources (like Google Maps).  We suggest that the curiosity be funneled through the judicial notice rule (FRE 201), and propose a series of factors that judges should consider in applying that rule to facts found via Internet sources.

Justice Breyer helpfully illustrated the phenomenon in oral argument earlier this month in United States v. Appel – a case that hinges on the location of a protestor vis a vis a military base when arrested.

Justice Breyer took a look at the (apparently) deficient record in the case on the point and went to “the Google maps” to find out what was really going on:

“JUSTICE BREYER:  [T]he reason I'm asking this question is the record is not developed. I looked at the Google maps.  It looked to me like this area is sort of a suburban house with a lawn in front of it, and you drive along the street, and you suspect that the street may belong to the city a little way up the lawn; but beyond that, it probably belongs to the homeowner.”

Now if only there was a mechanism for bringing information like that into the record . . . . .

H/T @joe_palazzolo

- JB

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

Blindfolding the Jury?: Will a Failure to Follow Protocol Render DNA Evidence Inadmissible in Jordan Graham Trial?

A couple of days ago, I posted an entry about the Jordan Graham prosecution. As noted, Graham is

the Montana woman charged with murder after shoving her new husband off a cliff at the Glacier National Park last summer. Prosecutors allege that the act was malicious; Graham counters that she instinctively pushed him away when he grabbed her arm during an argument.

According to an article yesterday,

During Wednesday's court session, investigators admitted they probably didn't follow established procedures when recovering a piece of cloth which could be a key piece of evidence in trial.  

The strip of black cloth was found just downstream from where Cody Johnson's body was located, lying in a pool of water below the parking area to The Loop trail in July.  

Prosecutors are attempting to say the cloth is proof that Graham planned her husband's death. The jury has not been told that the cloth is an alleged blindfold.  

But defense attorneys attacked the evidence even before the trial, saying there's no way the cloth can show Graham's intent. Plus, they say the DNA evidence - hairs on the cloth - wasn't properly preserved.  

Kalispell Police Sgt. Myron Wilson told the jury that the cloth had been handled after it was recovered from the bottom of the ravine, and that it was kept in a plastic bag and then transferred to a paper bag.  

Under cross-examination, Wilson admitted putting the cloth in plastic first was "not appropriate" under standard procedures because it doesn't allow DNA evidence to dry properly.

Because the alleged murder took place in Glacier National Park, Graham's trial is being held in federal court. So, what does that mean in terms of the admissibility of the DNA evidence?

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December 12, 2013 | Permalink | Comments (1) | TrackBack (0)

Wednesday, December 11, 2013

Best Authentication: The Intersection Between the Best Evidence Rule & Authentication

Similar to its federal counterpartMinnesota Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

There are many questions about how readily courts should apply Rule of Evidence 1003(1) to exclude duplicates. In fact, I raised many of them in this article. But seemingly everyone agrees that the proponent of a duplicate must first authenticate the original. And this requirement was a problem for the prosecution in State v. Yoeun, 2013 WL 6152162 (Minn.App. 2013), even in the absence of an objection by the defendant.

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

Tuesday, December 10, 2013

Why Jordan Graham's Prior Threats Will be Inadmissible at Her Trial For Pushing Her Husband Off a Cliff

Many of you have probably heard about the case of Jordan Graham. She's the Montana woman charged with murder after shoving her new husband off a cliff at the Glacier National Park last summer. Prosecutors allege that the act was malicious; Graham counters that she instinctively pushed him away when he grabbed her arm during an argument. Recently, Donald Molloy, the federal judge presiding over the case, ruled that the prosecution would not be able to introduce evidence that Graham allegedly threatened to kill her mother and stepfather a month before her husband's fatal fall. Why? The answer can be found in the intersection between two rules of evidence.

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December 10, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, December 9, 2013

Text(ual) Analysis: Court of Appeals of Minnesota Addresses Admissibility of Forwarded Text Messages

Minnesota Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

Meanwhile, Minnesota Rule of Evidence 1004(1)  provides that

The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if...[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

So, assume that an alleged victim finds text messages on the defendant's phone, forwards them to her phone and e-mail account, and the forwards them to the police. Should the court deem these text messages admissible? That was the question faced by the Court of Appeals of Minnesota in State v. Anderson, 2013 WL 6223399 (Minn.App. 2013).

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December 9, 2013 | Permalink | Comments (0) | TrackBack (0)

Friday, December 6, 2013

Jameis Winston, Kobe Bryant & Florida's Rape Shield Rule

Yesterday, Florida State quarterback Jameis Winston was not charged with sexual assault. As per Florida law, 86 pages of investigative material was made public. Inside those pages, we can find probably the biggest reason for charges not being brought: 

[I]nvestigators found a second DNA profile on the shorts the woman provided. (Winston's DNA profile was found on her underwear.) A defense attorney could use an unknown DNA profile as the foundation of his defense. If prosecutors couldn't positively identify the source of the unknown DNA profile, a defense attorney could suggest that the person who provided the other sample committed the rape. That would likely provide reasonable doubt in jurors' minds. So if Meggs was going to prosecute, he would have to identify that sample. "She acknowledged having sex with her boyfriend," Meggs said. "But she wouldn't tell me who her boyfriend was. Being a shrewd investigator, we found out, and we got his DNA." The investigation could have wrapped up more quickly if not for the delay, which required Meggs to enlist the help of a prosecutor in Ohio to request the boyfriend's DNA.

Let's take a look at the law that governs such evidence.

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December 6, 2013 | Permalink | Comments (2) | TrackBack (0)

Thursday, December 5, 2013

Behind the Scenes: Northern District of Illinois Deliberates on Severance Motion in Bruton Case

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. In Richardson v. Marsh, the Supreme Court found that there's no Bruton doctrine if the prosecution can redact such a statement to remove any reference to the other defendant, and some lower courts have found no problem with replacing the other defendant's name with a neutral pronoun. Sometimes, however, neither solution is viable. The recent opinion of the Northern District of Illinois in United States v. Montoya-Hernandez, 2013 WL 6080483 (N.D.Ill. 2013), gives us some good insight into how this process works.

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December 5, 2013 | Permalink | Comments (0) | TrackBack (0)