EvidenceProf Blog

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

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Friday, February 8, 2013

Back in the Habit: Supreme Court of West Virginia Finds Jury Instruction Constituted Improper Habit Evidence

Similar to its federal counterpartWest Virginia Rule of Evidence 406 provides that 

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 

If you're looking for a great case to read to understand the ins and outs of Rule 406, you need look no further than Rodgers v. Rodgers, 399 S.E.2d 664 (W.Va. 1990).

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February 8, 2013 | Permalink | Comments (1) | TrackBack (0)

Thursday, February 7, 2013

Habit Forming Behavior: Court of Appeals of Michigan Finds Doctor's Testimony About Blood Draw Admissible Under Rule 406

Similar to its federal counterpartMichigan Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

A student in my Evidence class today asked whether expert witnesses may testify regarding their habit of complying with certain procedures pursuant to Rule 406. Let's take a look at Zyskowski v. Habelmann, 388 N.W.2d 315 (Mich.App. 1986), to see the answer.

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February 7, 2013 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 6, 2013

Truth & Consequences: Court of Appeals of Minnesota Finds No Rule 608(b) Error With Sergeant's Misconduct

Similar to its federal counterpart, Minnesota Rule of Evidence 608(b) provides that

Specific instances of the conduct of the witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

I think that the Court of Appeals of Minnesota in State v. Sherman, 2013 WL 399242 (Minn.App. 2013), erred in precluding the defendant from impeaching a sergeant with evidence of past misconduct under Rule 608(b). Do you agree?

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February 6, 2013 | Permalink | Comments (1) | TrackBack (0)

Monday, February 4, 2013

Incommunicado: Court of Appeals of Texas Finds Trial Court Properly Precluded Defendant From Admitting Character Evidence

Texas Rule of Evidence 404(a) provides that

Evidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:  

(1) Character of accused. Evidence of a pertinent character trait offered:  

(A) by an accused in a criminal case, or by the prosecution to rebut the same, or  

(B) by a party accused in a civil case of conduct involving moral turpitude, or by the accusing party to rebut the same;  

(2) Character of victim. In a criminal case and subject to Rule 412, evidence of a pertinent character trait of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of peaceable character of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor; or in a civil case, evidence of character for violence of the alleged victim of assaultive conduct offered on the issue of self-defense by a party accused of the assaultive conduct, or evidence of peaceable character to rebut the same;  

(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608 and 609.

Moreover, Texas Rule of Evidence 405(a) provides that

In all cases in which evidence of a person's character or character trait is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. In a criminal case, to be qualified to testify at the guilt stage of trial concerning the character or character trait of an accused, a witness must have been familiar with the reputation, or with the underlying facts or information upon which the opinion is based, prior to the day of the offense. In all cases where testimony is admitted under this rule, on cross-examination inquiry is allowable into relevant specific instances of conduct.

In other words, at a criminal trial in which the defendant is not being prosecuted for homicide, unless the defendant introduces propensity character evidence, the prosecution cannot introduce propensity character evidence ("once a criminal, always a criminal," "once a burglar, always a burglar, etc."). The defendant, however, can open Pandora's box and present propensity character evidence concerning himself and/or the alleged victim. As Rule 405(a) makes clear, however, the only proper form of evidence that a character witness can render on direct examination is reputation ("I've been the victim's neighbor for the past 5 years, and he has a terrible reputation in the neighborhood for violence.") and opinion ("I've known the victim for 5 years, and in my opinion, he's a violent person") testimony. Moreover, as Rule 404(a) makes clear, once the defendant has presented propensity character evidence, the prosecution can then rebut this evidence with its own propensity character evidence. 

As the recent opinion of the Court of Appeals of Texas in Williams v. State, 2013 WL 341900 (Tex.App.-Dallas 2013), makes clear, however, none of the above matters if a defendant is introducing character evidence under the "communicated character " doctrine.

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February 4, 2013 | Permalink | Comments (0) | TrackBack (0)