Friday, January 18, 2013
Federal Rule of Evidence 104(b) provides that
When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (emphasis added).
In Hagraves v. United States, 2013 WL 173228 (D.C. 2013), a defendant appealed from his conviction, claiming that the trial court erred in precluding him from doing a conditional admission pursuant to the last sentence of Rule 104(b). So, what did the court find?
Thursday, January 17, 2013
Preemptive Strike: 3rd Circuit Finds Defendant Who Preemptively Introduced Drug Conviction Couldn't Appeal
Federal Rule of Evidence 609(a)(1) provides that
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant....
There has been a boatload of litigation surrounding Rule 609(a)(1), and that has led to some interesting issue regarding its applicability and appealability. Two of those issues were at the heart of the Third Circuit's recent opinion in United States v. Gaston, 2013 WL 142270 (3rd Cir. 2013).
Wednesday, January 16, 2013
No Stop Signs, Speed Limit: "Mechanical Trace" Theory & Whether Speed Limit Signs Constitute Hearsay
Yesterday, I got an interesting e-mail from a student asking me whether a speed limit sign constitutes hearsay. Federal Rule of Evidence 801(c) states that
"Hearsay" means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
In turn, Federal Rule of Evidence 801(a) indicates that
"Statement" means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.
So, is a speed limit sign hearsay? As I said, it is an interesting question.
Tuesday, January 15, 2013
I'm on a Mexican, Whoa-Oh: 7th Circuit Finds Testimony About Mexican Methamphetamine Was Improperly Admitted
Federal Rule of Evidence 401 provides that
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Moreover, Federal Rule of Evidence 403 provides that
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
So, let's say that in a case involving a Mexican citizen, a DEA officer testifies as follows:
There's two different types of methamphetamine that we see here in the United States. One is what we call...Mexican methamphetamine because it's made by Mexican nationals. Typically, either south of the border in Mexico or in super labs on the west coast like in California. The other kind of methamphetamine that we see is, for lack of a better term, homemade methamphetamine. And that's the stuff that is made in small labs, box labs we call them sometimes, that you can make it in your kitchen using...pseudoephedrine or pseudophed.
Is such evidence admissible under these Rules? According to the recent opinion of the Seventh Circuit in United States v. Ramirez-Fuentes, 2013 WL 28261 (7th Cir. 2013), the answer is "no."
Monday, January 14, 2013
The Character of the Matter: Court of Appeals of Idaho Finds Sexual Morality Evidence Should Have Been Admitted
In my forthcoming article, Justice of the Peace?, I note that
it is generally understood that character evidence is especially unreliable for a variety of reasons, including the usual sources of character evidence. "Numerous courts have expressed the same opinion as that espoused by the Vermont Supreme Court in" Wright v. McKee, in which it held that character evidence "is uncertain in its nature-both because the true character of a large portion of mankind is ascertained with difficulty, and because those who are called to testify are reluctant to disparage their neighbors,-especially if they are wealthy, influential, popular, or even only pleasant and obliging." Of course, when character evidence does not come from neighbors, it often comes from family members, who are especially unreliable given their biases in favor of (and sometimes against) their sons, daughters, parents, brothers, and sisters.
And yet, courts continually allow criminal defendants to present character evidence under the so-called "mercy rule," which also allows for prosecutors to respond in kind. As noted in the recent opinion of the Court of Appeals of Idaho in State v. Rothwell, 2013 WL 53731 (Idaho App. 2013), the vast majority of courts in child molestation cases allow defendants to present evidence of their sexual morality with children. But does this make any sense?