EvidenceProf Blog

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

Friday, June 21, 2013

I May Be Wrong: Supreme Court of Michigan Finds Forfeiture by Wrongdoing Didn't Apply in Sexual Abuse Case

Michigan Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay for

A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

If a criminal defendant forfeits his objection to hearsay under Rule 804(b)(6), he also forfeits his objection that the admission of the hearsay violates the Confrontation Clause. In People v. Burns, 2013 WL 3020917 (Mich. 2013), the Supreme Court of Michihgan found that the defendant forfeited neither. Why?

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June 21, 2013 in Books | Permalink | Comments (2) | TrackBack (0)

Wednesday, June 19, 2013

Blame Game: Revisiting The Issue of Impeaching the Declarant of an Adoptive Admission

Last week, I did a series of posts about Federal Rule of Evidence 806 and Federal Rule of Evidence 801(d)(2)(B)Rule 806 allows for the impeachment of hearsay declarants even if they don't testify at trial, but it seemingly precludes impeachment of the declarant of an adoptive admission under Rule 801(d)(2)(B). In my posts last week, I argued against such a reading of Rule 806, and I've finally found a case that supports what I've been saying: Lewis v. Gubanski, 905 S.W.2d 847 (Ark.App. 1995).

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June 19, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 17, 2013

My New Article: OK Computer: The Fourth Amendment and Searches of Seized and Imaged Electronic Evidence

Today, I posted the first draft of a short article that I am writing for South Carolina Lawyer magazine on SSRN. The article is OK Computer: The Fourth Amendment and Searches of Seized and Imaged Electronic Evidence. Here is the abstract:

In 1916, the Supreme Judicial Court of Massachusetts addressed a novel question in Massie v. Barker: How does the standard for negligence previously applied to walkers apply to drivers? For the court, the answer was clear: “The law as to drivers of motor vehicles is not different from that which governs other persons. The standard required is that of the reasonably prudent person under all the circumstances.” 

In its 2012 opinion in United States v. Metter, the Eastern District of New York also addressed a question of first impression: How long may the government retain seized and imaged electronic evidence before conducting a review of that evidence to determine whether any of it falls outside the scope of a search warrant?

Many advances in technology have forced courts to reconsider existing constitutional tests and standards given the brave new digital world in which we live. Other technological advances have not caused such legal retrofitting as courts have found that existing tests and standards can adequately accommodate some new innovations. This article argues that the problem confronted by the Metter court falls into this second category.

You can download the article by clicking here. Any feedback would be appreciated.


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