EvidenceProf Blog

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

Friday, August 23, 2013

CNN: Outrageous Privacy Invasion (click here to see the video)

CNN's web site (unintentionally!?) provides an example of the ever-present tension between our concern for, and utter disregard of, privacy rights.

Screenshot from CNN web site below:




- JB

August 23, 2013 | Permalink | Comments (1) | TrackBack (0)

Cause of Death?: Marc Ginsberg Assesses Whether Forensic Autopsy Reports Implicate the Confrontation Clause

The forensic autopsy report is an important component of a criminal homicide prosecution. The report, which is used to memorialize the cause and manner of death, under the auspices of a coroner’s or medical examiner’s office, constitutes a significant phase of a death investigation which is used "to (hopefully) convict the guilty and exonerate the innocent."... 

The classic forensic pathology testimony at a criminal homicide trial comes in one of two basic forms: (1) the examining pathologist - the pathologist who performed the forensic autopsy on the victim and prepared the autopsy report – is the in-court witness who refers to the autopsy report and explains its findings and conclusions. This witness is subject to cross-examination by the defendant; (2) the examining pathologist is not the in-court witness. Instead, the in-court witness is a “surrogate” pathologist from the office of the coroner or medical examiner. The surrogate pathologist relies on the examining pathologist’s autopsy report and offers professional opinions at trial, as an expert witness. Here, the defendant is unable to confront and cross- examine the examining pathologist. Marc GinsbergThe Confrontation Clause And Forensic Autopsy Reports — A 'Testimonial' (forthcoming Louisiana Law Review).

Given this last point, the question becomes, pursuant to the Supreme Court's Confrontation Clause jurisprudence since Crawford v. Washington, whether forensic autopsy reports are "testimonial" and thus implicate the Clause. This is the topic taken up by Professor Ginsberg in his forthcoming article.

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August 23, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, August 22, 2013

"Tell My Father That I Love Him": Admissible or Inadmissible?

In our suite of my first year dorm, we had two 24-hour periods where we played something over and over again. The first was Stanley Kubrick's Vietnam War classic, "Full Metal Jacket." The other was David Bowie's "Space Oddity." Indeed, we even built a shrine to Ziggy Stardust. Yes, we were a strange lot. 

After the latter experience, I will never get the words, "Tell my wife I love her very much, she knows" out of my head. And those lyrics were the first things that I though about after reading the recent opinion of the Supreme Court of Rhode Island in State v. Covington, 2013 WL 3337275 (R.I. 2013).

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August 22, 2013 | Permalink | Comments (1) | TrackBack (0)

Wednesday, August 21, 2013

Evidence Day 1, the Second Hour: A Guest Post by Kevin Lapp

I teach a 4 credit course that meets twice a week. I described earlier what I do in the first hour. This post covers the second hour. At the break, I distribute 3x5 cards and ask students to put on it their name, hometown and what it is famous for, and what their dream job would be. My administrative assistant will then attach pictures to the 3x5 cards, and I’ve got myself a little bit of information about my students that might help me down the line.

I begin the second hour with class rules, and then pull up on the screen a cartoon that has a lawyer telling a reporter “the proof was in the pudding, but the pudding was ruled inadmissible as evidence.” I ask why we would ever do such a thing. A discussion of the purpose of the rules of evidence follows, linked back to the evidence we discussed in the first hour.  Having established that the rules promote accuracy, efficiency, fairness and serve external interests viewed as socially useful by excluding some otherwise relevant information, we spend the remaining time on trial mechanics, including FRE 611 (order of proof, scope of testimony, mode of questioning), 614, 615 and 103 (preserving error).

I do this because one of the bigger challenges of teaching Evidence, or any law school course to first and second year students, is the fact that a good majority of them haven’t taken a case from beginning to end and haven’t been in a courtroom for more than a couple of hours. As such, they lack a basic understanding of trial mechanics. Without that framework, much of the moving parts and considerations that complicate evidentiary issues can be easily lost on them. So it’s my hope that by addressing trial mechanics early, and often, my students will more quickly be able to situate the problems we discuss in class within the lawyering and litigation context in which they arise.

Ideally, by the end of the first day, I‘ve accomplished a few things. (1) My students have heard, and pondered, things like relevance, personal knowledge, prejudice, hearsay, experts and privileges, all tied to a familiar fact pattern. (2) They have participated in a discussion about this stuff, whether in a small class or by volunteering during a class-wide discussion, articulating and listening to reasons for and against the admission of evidence. (3) They’ve been introduced to the basic structure of our adversarial system of resolving disputes, and have begun to understand that the rules of evidence are intimately linked to our process of proof.

One thing I don’t do that intrigues me – I don’t do a substantive overview of the entire semester in 20-60 minutes. I have a colleague who teaches his entire first-year course in 2 days, and then uses the rest of the semester to expand on, refine and critically analyze the contents of that 2 day lecture. I really like the idea of laying it all out there at the beginning. Such a method seems well-suited to helping the students master the core material, and gives them front-end context with which they can take in and assess the details and nuances of the rules we learn. It also lets me flag issues or themes that are important to mastering the material right from the start. Does anyone do anything like that? How about distributing the semester-end review powerpoint the first week? Curious to hear thoughts on this.

August 21, 2013 | Permalink | Comments (1) | TrackBack (0)

What's the Harm?: Cynthia Lee's Making Race Salient & Jury Instructions on Racial Bias and Cross-Racial Identifications

Cynthia Lee, the Charles Kennedy Poe Research Professor of Law at the George Washington University Law School, presented her forthcoming article, Making Race Salient: Trayvon Martin and Implicit Bias in a Not Yet Post-Racial Society, at the SEALS Conference. In this post, I want to focus on one specific section of that terrific article. That section deals with the use of jury instructions to make race salient in cases like the Trayvon Martin/George Zimmerman trial. According to Professor Lee,

Another way race can be made salient is through jury instructions. For example, U.S. District Court Judge Mark Bennett expressly tells jurors in his courtroom that they should not rely on implicit biases: 

Do not decide the case based on "implicit biases." As we discussed in jury selection, everyone, including me, has feelings, assumptions, perceptions, fears, and stereotypes, that is, “implicit biases,” that we may not be aware of. These hidden thoughts can impact what we see and hear, how we remember what we see and hear, and how we make important decisions. Because you are making very important decisions in this case, I strongly encourage you to evaluate the evidence carefully and to resist jumping to conclusions based on personal likes or dislikes, generalizations, gut feelings, prejudices, sympathies, stereotypes, or biases. The law demands that you return a just verdict, based solely on the evidence, your individual evaluation of that evidence, your reason and common sense, and these instructions. Our system of justice is counting on you to render a fair decision based on the evidence, not on biases.

Judge Bennett’s instruction goes further than most model jury instructions, which simply tell jurors to determine the facts without bias or prejudice. For example, Maryland’s Criminal Pattern Jury Instructions state: "[Y]ou must consider and decide this case fairly and impartially. You are to perform this duty without bias or prejudice as to any party. You should not be swayed by sympathy, prejudice or public opinion." Some model jury instructions go a bit further and explicitly tell jurors not to be influenced by race, ethnicity, or gender. For example, the criminal jury instructions for the District of Columbia suggest that judges instruct juries as follows: "[Y]ou should determine the facts without prejudice, fear, sympathy, or favoritism. You should not be improperly influenced by anyone’s race, ethnic origin, or gender. Decide the case solely from a fair consideration of the evidence." California's model jury instructions on bias go even further in terms of attempting to educate jurors about stereotypes and implicit bias, providing:

Each one of us has biases about or certain perceptions or stereotypes of other people. We may be aware of some of our biases, though we may not share them with others. We may not be fully aware of some of our other biases.

Our biases often affect how we act, favorably or unfavorably, toward someone. Bias can affect our thoughts, how we remember, what we see and hear, whom we believe or disbelieve, and how we make important decisions.

As jurors you are being asked to make very important decisions in this case. You must not let bias, prejudice, or public opinion influence your decision.

Your verdict must be based solely on the evidence presented. You must carefully evaluate the evidence and resist any urge to reach a verdict that is influenced by bias for or against any party or witness.

So, are instructions like the instruction given by Judge Bennett a good or a bad thing? Well, by way of analogy, let's consider the recent opinion of the Supreme Court of Washington in State v. Allen, 294 P.3d 679 (Wash. 2013), concerning jury instructions regarding the inaccuracy of cross-racial identifications.

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August 21, 2013 | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 20, 2013

You Can't Trust a Drunk, Right?: Court of Appeals of Minnesota Finds Drunk Statement Was a Recorded Recollection

Similar to its federal counterpartMinnesota Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

So, can a statement made while the declarant was so drunk that she cannot remember the statement be shown to reflect the declarant's knowledge correctly? According to the recent opinion of the Court of Appeals of Minnesota in State v. Barta, 2013 WL 440579 (Minn.App. 2013), the answer is "yes." I disagree.

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August 20, 2013 | Permalink | Comments (3) | TrackBack (0)

Monday, August 19, 2013

Please Welcome My New Co-Blogger, Ben Trachtenberg

Please welcome Ben Trachtenberg as my new co-blogger on EvidenceProf Blog. Professor Trachtenberg is an Associate Professor at the University of Missouri School of Law. Previously, Professor Trachtenberg was a Visiting Assistant Professor at Brooklyn Law School.


Prior to teaching, Professor Trachtenberg clerked at the United States Court of Appeals for the Second Circuit with Judge Jose A. Cabranes and was a Litigation Associate at Covington & Burling LLP assigned to white collar investigations and civil securities cases.

Professor Trachtenberg received his B.A. from Yale University in Political Science and his J.D. from Columbia Law School. His scholarship includes:

Law School Marketing and Legal Ethics, 91 NEB. L. REV. 866 (2013), available at http://ssrn.com/abstract=2192694

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, and the Sixth Amendment Confrontation Clause, 64 FLA. L. REV. 1669 (2012), available at http://ssrn.com/abstract=2192625

Reducing the Discount Rate, ENVIRONMENTAL FORUM (Nov.-Dec. 2012), available at http://ssrn.com/abstract=2178129

Rethinking Pro Bono, N.Y. TIMES (May 14, 2012) (op-ed), available at http://www.nytimes.com/2012/05/14/opinion/a-better-pro-bono-plan.html

Tinkering with the Machinery of Life, 59 UCLA L. REV. DISCOURSE 128 (2012), available at http://ssrn.com/abstract=2021290

Health Inflation, Wealth Inflation, and the Discounting of Human Life, 89 OR. L. REV. 1313 (2011), available at http://ssrn.com/abstract=1845504

Coconspirators, “Coventurers,” and the Exception Swallowing the Hearsay Rule, 61 HASTINGS L.J. 581 (2010), available at http://ssrn.com/abstract=1358530

Incarceration Policy Strikes Out: Exploding prison population compromises the U.S. justice system, A.B.A. JOURNAL, Feb. 2009 (winning entry in Ross Essay Contest)

•An Exchange of E-mails (with James J. White), in Bruce W. Frier & James J. White, The Modern Law of Contracts 102-03 (2005) (additional material in instructor’s supplement) (also printed in 2d ed. 2008)

State Sentencing Policy and New Prison Admissions, 38 U. MICH. J.L. REFORM 479 (2005), available at http://ssrn.com/abstract=703921 

Professor Trachtenberg guest blogged here in August 2010. You can find some of his guest posts hereherehereherehereherehereherehereherehere, and here. His posts will be followed by -BT while mine are followed by -CM and Jeffrey Bellin's are follow by -JB.


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