EvidenceProf Blog

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

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Friday, January 11, 2013

A Foolish Consistency?: "An Unneeded Hearsay Exception" & The Case Against The Rule 801(d)(1)(B) Amendment

Currently, Federal Rule of Evidence 801(d)(1)(B) provides that

A statement that meets the following conditions is not hearsay:

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:....

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying....

On the other hand, as I have noted on a few prior occasions (see herehere, and here), Minnesota Rule of Evidence 801(d)(1)(B) is broader, providing that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...(B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness...

In other words, under the Minnesota Rule, a witness's prior consistent statement can be admitted as non-hearsay even if there is no express or implied charge that the witness recently fabricated his trial testimony or acted from a recent improper influence or motive in so testifying. Under a proposed amendment, however, Federal Rule of Evidence 801(d)(1)(B) would be functionally similar to Minnesota Rule of Evidence 801(d)(1)(B). So, why has this change been proposed, and does it make sense?

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January 11, 2013 | Permalink | Comments (4) | TrackBack (0)

Thursday, January 10, 2013

Cause I'm a Criminal: Michigan Case Reveals How Criminal Defendants Get Preferential Treatment Under Rule 803(8)(a)(iii)

Recently, I completed the first round of edits on my article, Justice of the Peace?, and a large focus of the article is about how the rules of evidence, save for Federal Rule of Evidence 404(a)(2)(C), treat criminal defendants at least as well as their civil counterparts. And, as the recent opinion of the United States District Court for the Eastern District of Michigan in Santander Consumer USA, Inc. v. Superior Pontiac Buick GMC, Inc., 2013 WL 27921 (E.D.Mich. 2013), makes clear, Federal Rule of Evidence 803(8)(a)(iii) is actually a Rule that treats criminal defendants much better than their civil counterparts.

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January 10, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 9, 2013

What Kind of Crime? Utah Court Finds Possession of Child Pornography Not Child Molestation Under Rule 414

As noted in yesterday's postFederal Rule of Evidence 414(a),

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

So, what exactly counts as "child molestation" for Rule 414(a) purposes? Let's take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).

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

Tuesday, January 8, 2013

Compromising Position: 11th Circuit Case Involves Rare Intersection Between Rules 408(a) & 413(a)

Federal Rule of Evidence 408(a) provides that

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.

Meanwhile, Federal Rule of Evidence 414(a) provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

Usually, these Rules are two ships passing in the night, but they had a rare intersection in the recent opinipon of the Eleventh Circuit in United States v. Levinson, 2013 WL 49718 (11th Cir. 2013).

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January 8, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2013

"Ancient" History: Court of Appeals of Kentucky Doesn't Have to Apply Ancient Documents Rule in Adverse Possession Case

Adverse possession cases are always fun, that is, unless you are the property owner whose land a squatter allegedly adversely possessed.

Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.

And while they say that possession is 9/10ths of the law, the recent opinion of the Court of Appeals of Kentucky in Perkins v. Howard, 2013 WL 45570 (Ky.App. 2012), reveals that fortune often doesn't favor the alleged adverse possessor.

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