EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Friday, June 7, 2013

Swing and a Miss: Court of Appeals of Mississippi Seemingly Botches Prior Inconsistent Statement Appeal

Similar to its federal counterpartMississippi Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing or other proceeding, or in a deposition...

Conversely, if a prior inconsistent statement was not given under oath, it is only admissible to impeach the declarant and not to prove the truth of the matter asserted in the prior statement. To me, that seems like a pretty big distinction. In its opinion in Barron v. State, 2013 WL 2402916 (Miss.App. 2013), the Court of Appeals of Mississippi apparently disagreed.

Continue reading

June 7, 2013 | Permalink | Comments (1) | TrackBack (0)

Thursday, June 6, 2013

Please Welcome Derek Black's Education Law Prof Blog to the Internet

Please welcome the Education Law Prof Blog to the internet. The blog was launched on April 30th with the following statement of purpose:

Welcome to the Education Law Prof Blog. On this blog, we plan to highlight education law developments, legal scholarship, research, conferences, and more. Our nation's educational laws have shaped our history, challenged our beliefs, and, at times, defined us. Education law continues to be a dynamic and rich topic, and we hope that this blog will be a place where advocates and scholars can discuss emerging issues and share information. We welcome contributions and ideas from our visitors. If you have recent articles, cases, news, or have a fresh perspective on an important educational issue, please contact us about having it posted. We are also open to having guest bloggers, so if you are interested, please contact us in the left editors' column. Thank you for visiting, and we look forward to hearing from you.

The blog is edited by my colleague Derek Black (who also teaches Evidence and recently completed an Education Law casebook) as well as LaJuana Davis from the Cumberland School of Law and Areto Imoukhuede from Nova Southeastern.

Already, the blog has tackled a good number of education law issues. Yesterday alone, the editors posted entries on discrimination against LGBT studentspre-kindergarten funding, and virtual charter schools. If you are at all interested in education law, the Education Law Prof Blog is definitely worth a look.

-CM

June 6, 2013 | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 5, 2013

This is a Recording: When Is a Witness Ever Able to Testify Fully & Accurately for Rule 803(5) Purposes?

A few days ago, I posted an entry about relocating Federal Rule of Evidence 803(5) to Federal Rule of Evidence 801(d)(1). Today, I want to focus on another aspect of this Rule, which provides an exception to the rule against hearsay for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Specifically, let's focus on the question of when a witness "cannot recall [a matter] well enough to testify fully an accurately."

Continue reading

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

Tuesday, June 4, 2013

No Right: Supreme Court Finds RIght to Present a Defense Doesn't Preclude Application of Anti-Extrinsic Evidence Rule

The right to present a defense is a right that has always fascinated me. A few years ago, I wrote about it in the article, Dismissed with Prejudice: Why Application of the Anti-Jury Impeachment Rule to Allegations of Racial, Religious, or Other Bias Violates the Right to Present a Defense. That article addressed the intersection between the right and the rules of evidence. Specifically, it questioned whether the right to present a defense should trump Federal Rule of Evidence 606(b) in cases in which there is evidence of juror racial, religious or other bias during deliberations.

Yesterday, in Nevada v. Jackson, the Supreme Court addressed another such intersection. How did the Court rule?

Continue reading

June 4, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, June 3, 2013

Should the Recorded Recollection Exception be Moved to Federal Rule of Evidence 801(d)(1)?

Federal Rule of Evidence 803(5) provides a hearsay exception for

A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

Because of its placement in Federal Rule of Evidence 803, this "recorded recollection" exception "applies regardless of whether the declarant is available as a witness...." My argument in today's blog post is that Federal Rule of Evidence 803(5) would fit better under Federal Rule of Evidence 801(d)(1) and that its current residence in Federal Rule of Evidence 803 is a historical relic that no longer makes any sense.

Continue reading

June 3, 2013 | Permalink | Comments (0) | TrackBack (0)