EvidenceProf Blog

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

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Wednesday, June 26, 2013

Kentucky Derby: Will Kentucky Court Allow Same-Sex Partner to Invoke Spousal Privileges at Murder Trial?

There is an interesting trial that is about to start in Kentucky. Bobbie Jo Clary is charged with murder in connection with the beating death of 64 year-old George Murphy in his home in October 2011. Geneva Case, who entered into a same-sex civil union with Clary in Vermont nine years ago, has bee subpoenaed to testify against Clary. In response, Case has sought to invoke Kentucky's spousal privileges. Kentucky Rules of Evidence 504(a) & (b) provide the following:

(a) Spousal testimony. The spouse of a party has a privilege to refuse to testify against the party as to events occurring after the date of their marriage. A party has a privilege to prevent his or her spouse from testifying against the party as to events occurring after the date of their marriage.

(b) Marital communications. An individual has a privilege to refuse to testify and to prevent another from testifying to any confidential communication made by the individual to his or her spouse during their marriage. The privilege may be asserted only by the individual holding the privilege or by the holder's guardian, conservator, or personal representative. A communication is confidential if it is made privately by an individual to his or her spouse and is not intended for disclosure to any other person. 

Clary and Case consider themselves married and presumably would be married if Kentucky allowed for same-sex marriage. It does not. So, should Case be able to invoke Kentucky's spousal privileges despite not being married to Clary?

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June 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, June 24, 2013

None of Your Business: 2nd Circuit Finds Late Notice Didn't Preclude Self-Authenticatiom Under Rule 902(11)

Federal Rule of Evidence 803(6) provides an exception to the rule against hearsay for

A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

Meanwhile, Federal Rule of Evidence 902(11) provides that the following item is self-authenticating and does not require extrinsic evidence of authentication to be admitted:

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, what exactly constitutes "reasonable written notice under Rule 902(11)? Let's take a look at the recent opinion of the Second Circuit in United States v. Rom, 2013 WL 3064855 (2nd Cir. 2013).

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