EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Friday, February 1, 2013

Not a Happy Ending: Eastern District of Michigan Finds Habit Evidence Inadmissible in Masseuse's Appeal

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

So, let's say that a masseuse is charged with one count of third-degree criminal sexual conduct and six counts of fourth-degree criminal sexual conduct after four of his clients accused him of inappropriately touching them while he was massaging them. Can the masseuse call several of his other clients to testify pursuant to Rule 406 that he never inappropriately touched them? According to the recent opinion of the United States District Court for the Eastern District of Michigan in Parr v. Berghuis, 2012 WL 5906860 (E.D.Mich. 2012), the answer is "no."

Continue reading

February 1, 2013 | Permalink | Comments (2) | TrackBack (0)

Thursday, January 31, 2013

Did You Notice That?: Western District of Virginia Details Notice Obligation Under Rule 404(b)

Federal Rule of Evidence 404(b)(2) provides that character

evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

In other words, Rule 404(b)(2) contains a pre-trial notice requirement, pursuant to which the prosecution has a certain notice obligation when the defendant makes a relevant request. But what is the exact nature of that obligation? Let's take a look at the opinion of the United States District Court for the Western District of Virginia in United States v. Powell, 2007 WL 1839743 (W.D.Va. 2007).

Continue reading

January 31, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 30, 2013

10 Days Late: SDNY Finds 10 Days Advance Notice Sufficient For Rule 404(b) Purposes

Federal Rule of Evidence 404(b)(2) provides that character evidence

may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:  

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and  

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

So, how much notice is reasonable notice? Let's take a look at the recent opinion of the United States District Court for the Southern District of New York in United States v. Filippi, 2013 WL 208919 (S.D.N.Y. 2013).

Continue reading

January 30, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 29, 2013

The Thin White Line: 3rd Circuit Seems to Imply Repainting White Line At Railroad Crossing Might Be Admissible Despite Rule 407

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

  • negligence;
  • culpable conduct;
  • a defect in a product or its design; or
  • a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

So, let's say that a motorcyclist is approaching a railroad crossing, sees a train approaching, and tries to hit the brakes, but his front brake locks and he flies over his handlebars, crashing into the train and becoming partially paralyzed. In addition, assume that before the accident, there was a white line indicating the presence of a railroad crossing before the point at which the motorcyclist hit his brakes but that the line had faded at the time of the accident and was repainted after the accident. Will evidence of the repainting of the line be admissible or excluded under Rule 407? Let's take a look at the recent opinion of the Third Circuit in Zimmerman v. Norfolk Southern Corp., 2013 WL 238789 (3rd Cir. 2013).

Continue reading

January 29, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, January 28, 2013

As I Lay Dying?: Court of Appeals of Michigan Finds Written Statement to be a Dying Declaration

Similar to its federal counterpartMichigan Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death.

Usually, this "dying declaration" exception applies to oral statements, but, as the recent opinion of the Court of Appeals of Michigan in People v. Thompson, 2013 WL 276042 (Mich.App. 2013), makes clear, it can also apply to written statements.

Continue reading

January 28, 2013 | Permalink | Comments (0) | TrackBack (0)