EvidenceProf Blog

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

Friday, July 19, 2013

Breaking News: Reporter’s Privilege Claim Rejected by Fourth Circuit

Opinion here

From the majority:

“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”

“we hold that there is no First Amendment or federal common-law privilege that protects Risen from having to respond to the government’s subpoena and give what evidence he has of the criminal conduct at issue”

From the dissent:

“The majority reads narrowly the law governing the protection of a reporter from revealing his sources, a decision that is, in my view, contrary to the will and wisdom of our Founders.”

More coverage here

UPDATE and at Prawfsblog here

Next stop Supreme Court? 

- JB

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

George Zimmerman, Juror B37 & Federal Rule of Evidence 606(b)

Similar to Federal Rule of Evidence 606(b)Section 90.607(2)(b) of the Florida Statutes states that

Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.

According to the Advisory Committee's Note to Federal Rule of Evidence 606(b)

The values sought to be promoted by excluding the evidence include freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment. 

Here's my question today: In the 24/7 news cycle, including Anderson Cooper's interview with Juror B37 from the George Zimmerman trial and the 4 other jurors distancing themselves from Juror B37, is the anti-jury impeachment rule no longer necessary or more necessary than ever?

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July 19, 2013 | Permalink | Comments (4) | TrackBack (0)

Thursday, July 18, 2013

Articles of Note: Three Forthcoming Articles on Expert Testimony

Do Jurors Give Appropriate Weight to Forensic Identification Evidence?

William C. Thompson (UC-Irvine), Suzanne O. Kaasa  (Northrop Grumman), Tiamoyo Peterson (UC-Irvine)

Journal of Empirical Legal Studies, Forthcoming 

Is Expert Evidence Really Different?

Frederick Schauer (University of Virginia School of Law), Barbara A. Spellman (University of Virginia School of Law),

The Daubert Counterrevolution 

David Bernstein (George Mason University School of Law)

Notre Dame Law Review, Forthcoming 

Abstracts below the fold . . .

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July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

A Case Study in Doctrinal Chaos: Rule 609 in Minnesota

It is a scenario that plays out in criminal courts across the country:  a defendant moves to preclude impeachment with his prior convictions under Rule 609, the trial court denies the motion, and the defendant decides not to testify.  The scenario is so familiar that the danger that a defendant will not testify is built into the five-factor framework courts use to evaluate the admissibility of prior convictions under Rule 609 in its 4th factor:  “the importance of the defendant’s testimony.”  As I have blogged before, it is an understatement to say that courts struggle to interpret this factor correctly. 

To illustrate, let’s look at two of the most recent cases on point:

In State v. Blevins, the court ruled that because the defendant’s testimony was “not particularly important,” the fourth factor supported the admission of impeachment (since it wouldn’t be such a big deal if he had been prevented from testifying by the impeachment).

But in State v. James, the fourth factor supported the admission of impeachment for the exact opposite reason, because “James's testimony was important.”

And here is the punchline:  these two cases are from the same court (the Minnesota Court of Appeals) in the same month (July 2013).

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July 18, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 17, 2013

Judging Judges: Should a Party Have to Object to Improper Judicial Interrogation?

Similar to its federal counterpartMinnesota Rule of Evidence 605 states that

The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

And, similar to its federal counterpartMinnesota Rule of Evidence 6014(b)

The court may interrogate witnesses, whether called by itself or by a party.    

Moreover, the Committee Comment to Rule 614 states that

A specific objection is required to preserve the issue for appeal. See rule 103. However, the objection need not be made contemporaneously with the objectionable act if the jury is present. The objection can be made at the next available opportunity when the jury is absent.

So, a party does not need to object to judicial testimony to preserve the issue for appellate review, but a party does need to object to judicial interrogation to preserve the issue for appellate review (although this objection can come outside the presence of the jury). Fair or unfair? Consider the opinion on the Court of Appeals of Minnesota in State v. Prewitt, 2013 WL 3491078 (Minn.App. 2013).

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July 17, 2013 | Permalink | Comments (2) | TrackBack (0)

Tuesday, July 16, 2013

Did "Stand Your Ground" Matter in the George Zimmerman Case?

I know many legal experts, including Colin (in the post immediately below), are downplaying the role that Florida’s Stand Your Ground (SYG) law played in the George Zimmerman case.  And it is true that the defense narrative of the case fit into a standard definition of self-defense law.  But I think SYG played a significant role in the case for a couple of reasons.  Here is the main one: 

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July 16, 2013 | Permalink | Comments (5) | TrackBack (0)

Media Misreporting and the George Zimmerman/Trayvon Martin Trial

It has been fascinating/disturbing to see just how much the media has gotten wrong throughout the course of the George Zimmerman/Trayvon Martin case and its aftermath. The biggest error, of course, has been the focus on Stand Your Ground laws when Florida's Stand Your Ground law was not invoked by the defense. Then, there were the minutes/hours/days after the judge's ruling during which many did not realize that the judge had ruled that the defense could use its animation as demonstrative evidence. Now, in the aftermath of the jury verdict, we have more misreporting, this time concerning the defense's motion against the prosecution based upon alleged Brady violations.

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July 16, 2013 | Permalink | Comments (5) | TrackBack (0)

Monday, July 15, 2013

Please Welcome My New Co-Blogger, Jeffrey Bellin

Please welcome Jeffrey Bellin as my new co-blogger on EvidenceProf Blog. Professor Bellin is an Associate Professor at the William and Mary School of Law. Previously, Professor Bellin taught at the SMU Dedman School of Law, where he was awarded the Don M. Smart Award for Excellence in Teaching by the 2012 graduating class.


Prior to teaching,

Professor Bellin served as a prosecutor with the United States Attorney’s Office in Washington, D.C. While at the U.S. Attorney’s Office, he argued a number of significant cases before the U.S. Court of Appeals for the D.C. Circuit and the D.C. Court of Appeals, including: United States v. Geraldo, 271 F.3d 1112 (D.C. Cir. 2001) and Fisher v. United States, 779 A.2d 348 (D.C. 2001). Professor Bellin subsequently practiced with the San Diego office of Latham & Watkins where he handled complex litigation matters, and served as a senior attorney for the California Courts of Appeal.

Professor Bellin did his undergraduate studies at Columbia University (summa cum laude) and graduated from Stanford Law School (Order of the Coif), followed by a clerkship with the Honorable Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit. His scholarship includes:

  • eHearsay, 98 Minn. L. Rev. ___ (forthcoming 2013). SSRN.
  • Symposium, Applying Crawford's Confrontation Right in a Digital Age, 45 Tex. Tech L. Rev. 33 (2012). SSRN.
  • The Incredible Shrinking Confrontation Clause, 92 B.U. L. Rev. 1865 (2012). SSRN.
  • Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, 160 U. Pa. L. Rev. 331 (2012).SSRN.
  • Co-author, Widening Batson’s Net to Ensnare More than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075 (2011) (with Junichi Semitsu). SSRN.
  • Crime-Severity Distinctions and the Fourth Amendment: Reassessing Reasonableness in a Changing World, 97 Iowa L. Rev. 1 (2011). SSRN.
  • Is Punishment Relevant After All? A Prescription for Informing Juries of the Consequences of Conviction, 90 B.U. L. Rev. 2223 (2010). SSRN.
  • Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants' Trial Silence, 71 Ohio St. L.J. 229 (2010). SSRN.
  • Circumventing Congress: How the Federal Courts Opened the Door to Impeaching Criminal Defendants with Prior Convictions, 42 U.C. Davis L. Rev. 289 (2008). SSRN.
  • Improving the Reliability of Criminal Trials Through Legal Rules that Encourage Defendants to Testify, 76 U. Cin. L. Rev. 851 (2008). SSRN.
  • The Significance (If Any) for the Federal Criminal Justice System of Advances in Lie Detector Technology, 80 Temp. L. Rev. 711 (2007). SSRN.

Professor Bellin guest blogged here in the fall of 2011. You can find some of his guest posts herehereherehere, here, and here. He also did a recent guest post about the admissibiloty of text messages in the Aaron Hernandez case. Professor Bellin's Twitter handle is @BellinJ. His posts will be followed by -JB while my posts will be followed by -CM


July 15, 2013 | Permalink | Comments (2) | TrackBack (0)