Friday, January 4, 2013
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.
So, let's say that a witness has been "convicted of misdemeanor theft of services and fined fifty dollars after he had a friend, who worked for a utility company, surreptitiously hook services up to his home." Because this crime was a misdemeanor, it cannot be admissible under Rule 609(a)(1). But should it be admissible under Federal Rule of Evidence 609(a)(2)? According to the recent opinion of the Sixth Circuit in United States v. Washington, 2012 WL 6682015 (6th Cir. 2012), the answer is "no." I disagree.
Thursday, January 3, 2013
I always teach my students that the Constitution trumps the Federal Rules of Evidence. There is, however, no specific Rule in the Federal Rules of Evidence that sets forth this hierarchy. As the recent opinion of the Court of Appeals of Texas, Texarkana, in Clay v. State, 2012 WL 6721012 (Tex.App.-Texarkana 2012), makes clear, however, there is such a Rule in the Texas Rules of Evidence. And the opinion also makes clear that there is another important difference between the two sets of Rules.
Wednesday, January 2, 2013
Failure of Confrontation: Court of Criminal Appeals of Alabama Reverses Burglary Adjudication Based on Bruton Violation
Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant's confession that facially incriminates another defendant. A textbook application of the doctrine can be found in the recent opinion of the Court of Criminal Appeals of Alabama in C.L.H. v. State, 2012 WL 6554144 (Ala.Crim.App. 2012).
Tuesday, January 1, 2013
Gas Stop: Court of Appeals of Minnesota Finds Trial Court Erred in Allowing for Admission of Gas Station Transaction Journal
A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.
As the language of Rule 803(6) makes clear, for a business record to be admissible under the rule, there must be foundation testimony from either the custodian of the record or another qualified witness. The problem for the State in State v. Johnson, 2012 WL 6734450 (Minn.App. 2012), was that it had neither.
Monday, December 31, 2012
It's in My Report: Court of Appeals of Utah Reverses Receiving Stolen Property Report Based on Improper Admission of Incident Report
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
What this means is that, pursuant to Utah Rule of Evidence 803(8)(A)(ii), a police or incident report is not admissible at a criminal trial. And what that means is that the defendant in State v. Gonzalez-Camargo, 2012 WL 6720459 (Utah App. 2012), was entitled to a new trial.