EvidenceProf Blog

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

Friday, May 17, 2013

Leisure Suit Larry & the IRS: U.S. Tax Court Uses Rule 1003 to Exclude Altered Duplicate

Federal Rule of Evidence 1002, the Best Evidence Rule, provides that

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

That said, Federal Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original’s authenticity or the circumstances make it unfair to admit the duplicate.

It is rare that a duplicate is deemed inadmissible under Rule 1003, but that is exactly what happened in the recent case, Heinbockel v. C.I.R., 2013 WL 1953732 (U.S.Tax.Ct. 2013).

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May 17, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 16, 2013

This is a Knife: Florida Court Finds Statement About Knife Qualified as an Excited Utterance

Similar to its federal counterpartSection 90.803(2) of the Florida Statutes provides an exception to the rule against hearsay for

A statement or excited utterance relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

You don't much more of a textbook example of an excited utterance than the one found in the recent opinion of the District Court of Appeal of Florida, Fourth District, in its recent opinion in Thomas v. State, 2013 WL 1980256 (Fla.App. 4 Dist. 2013).

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May 16, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 15, 2013

Learned Person: The Learned Treatise Exception, Impeachment & the Truth of the Matter Asserted

Similar to its federal counterpartMinnesota Rule of Evidence 803(18) provides an exception to the rule against hearsay 

To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.

In State v. Thim, 2013 WL 1942975 (Minn.App. 2013), the defendant claimed that he was using Rule 803(18) solely to impeach a witness for the prosecution. Was he correct?

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

Tuesday, May 14, 2013

The Privileged Few: Does Federal Rule of Evidence 408 Create a Settlement Privilege?

Federal Rule of Evidence 408 states:

(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.

In United States v. Dish Network, L.L.C., 2013 WL 1876419 (C.D.Ill. 2013), the Central District of Illinois addressed an interesting question under Rule 408: Does the Rule merely deem evidence of settlement negotiations inadmissible at trial, or does it also deem such evidence privileged?

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May 14, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, May 13, 2013

Article of Interest: F. Pat Hubbard's The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force

My colleague, F. Pat Hubbard, has a terrific new article, The Value of Life: Constitutional Limits on Citizens’ Use of Deadly Force (forthcoming George Mason Law Review). Professor Hubbard focuses upon three situations in which the State authorizes citizens to use deadly force: (1) executing a citizen's arrest or preventing a certain type of crime; (2) protecting one's home or automobile pursuant to the Castle Doctrine; and (3) protecting oneself pursuant to "stand your ground" laws. And his thesis is that (1) the State has a monopoly on deadly force; (2) "[i]n our constitutional system of legitimacy, there are limits on the state’s power to authorize the use of deadly force;" and (3) "most states have adopted unconstitutionally overbroad authorizations of the use of deadly force by citizens."

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