EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Friday, May 24, 2013

I'll Admit It: Is Rule 608(b) Evidence "Admissible"?

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The Federal Rules of Evidence are not coterminous with the discovery rules. Some evidence that would be inadmissible is still discoverable, but some evidence that would be admissible at trial is not discoverable. The recent opinion of the United States District Court for the Southern District of New York in Guercia v. Equinox Holdings, Inc., 2013 WL 2156496 (S.D.N.Y. 2013), ostensibly deals with this latter situation...or does it?

Continue reading

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

Thursday, May 23, 2013

Uninsurable: Court of Appeals of Rhode Island Finds No Problem With Judge's Sua Sponte Insurance Instruction

Similar to its federal counterpart, Rhode Island Rule of Evidence 411 provides that

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully. However, such evidence may be allowed when offered for another purpose, such as proof of agency, ownership, or control, bias or prejudice of a witness, or when the court determines that in the interests of justice evidence of insurance or lack of insurance should be permitted.

So, in most cases, neither the plaintiff nor the defendant can present evidence or testimony concerning the absence of presence of liability insurance. But what happens if the judge specifically instructs the jury not to speculate on the absence or presence of such insurance? Let's take a look at the recent opinion of the Supreme Court of Rhode Island in Oden v. Schwartz, 2013 WL 2109929 (R.I. 2013).

Continue reading

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

Wednesday, May 22, 2013

Chutes & Ladders: Court of Appeals of Kentucky Finds Evidence of Ladder Switch Inadmissible Under Rule 407

Similar to its federal counterpartKentucky Rule of Evidence 407 provides that

When, after an event, measures are taken which, if taken previously, would have made an injury or harm allegedly caused by the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

So, let's say that a plaintiff is injured when he falls off of his employer's ladder, and the ladder is later replaced after the accident. If the plaintiff's supervisor testifies at trial that he is unaware that the ladder was replaced, is evidence of the ladder change admissible to impeach him under Rule 407? According to the recent opinion of the Court of Appeals of Kentucky in Durbin v. CSX Transp., Inc., 2013 WL 2120317 (Ky.App. 2013), the answer is "no."

Continue reading

May 22, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 21, 2013

Talk About the Life in Massachusetts: Supreme Judicial Court of MA Does Not Adopt Federal Rule of Evidence 608(b)

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

The vast majority of states have state rules of evidence that exactly or closely mirror the Federal Rules of Evidence. Massachusetts, however, is not one of those states. So, what did that mean for the defendant in Commonwealth v. Almonte, 2013 WL 2128336 (Mass. 2013)?

Continue reading

May 21, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, May 20, 2013

Black & White: D.C. Court of Appeals Finds Trial Courts Have Discretion to Consider Evidence of Juror Racial Bias

Federal Rule of Evidence 606(b) states:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

D.C. does not have codified rules of evidence, but it applies a common law rule that is very similar to Federal Rule of Evidence 606(b), and, in Kittle v. United States, 2013 WL 2102150 (D.C. 2013), the D.C. Court of Appeals addressed a question of first impression previously addressed by many federal courts: What happens when there are post-verdict allegations of racial bias by jurors?

Continue reading

May 20, 2013 | Permalink | Comments (1) | TrackBack (0)