EvidenceProf Blog

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

Friday, February 15, 2013

Watch Your Step: Supreme Court of Connecticut Finds Subsequent Remedial Measure Evidence Improperly Admitted

Section 4-7 of the Connecticut Code of Evidence states: 

(a) General rule. Except as provided in subsection (b), evidence of measures taken after an event, which if taken before the event would have made injury or damage less likely to result, is inadmissible to prove negligence or culpable conduct in connection with the event. Evidence of those measures is admissible when offered to prove controverted issues such as ownership, control or feasibility of precautionary measures.
(b) Strict product liability of goods. Where a theory of liability relied on by a party is strict product liability, evidence of such measures taken after an event is admissible.

The recent opinion of the Supreme Court of Connecticut in Duncan v. Mill Management Co. of Greenwich, Inc., 2013 WL 515490 (Conn. 2013), does a nice job of breaking down the justifications for the section and when it does and doesn't apply.

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February 15, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 14, 2013

From Under the Shield: Court of Appeals of Texas Finds Rape Shield Rule Doesn't Cover Alleged Victim's Sexual Misconduct

Similar to its federal counterpartTexas Rule of Evidence 412 states s in relevant part:

(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.  

(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:  

(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;  

(2) it is evidence:  

(A) that is necessary to rebut or explain scientific or medical evidence offered by the State; 

(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;  

(C) that relates to the motive or bias of the alleged victim;  

(D) is admissible under Rule 609; or  

(E) that is constitutionally required to be admitted; and  

(3) its probative value outweighs the danger of unfair prejudice.

The typical evidence excluded under such rape shield rules is evidence proffered by a defendant concerning the victim's alleged character for promiscuity to prove her propensity to consent to sexual conduct and her likely conformity with that propensity at the time of the crime charged. But what if the evidence of the alleged victim's past sexual behavior that the defendant seeks to admit is evidence of past sexual misconduct? Let's take a look at the recent opinion of the Court of Appeals of Texas, Waco, in Johnson v. State, 2013 WL 531079 (Tex.App.-Waco 2013).

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February 14, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 13, 2013

Baskin Robbed?: Court of Appeals of Mississippi Finds Trial Court Erred In Allowing Impeachment Via Petty Larceny Conviction

Similar to its federal counterpartMississippi Rule of Evidence 609(a) provides that

For the purpose of attacking the character for truthfulness of a witness,
(1) evidence that (A) a nonparty witness has been convicted of a crime shall be admitted subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and (B) a party has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the party; and
(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of punishment.

 So, let's say that a defense witness has prior convictions for misdemeanor embezzlement and petty larceny. Can the prosecution impeach the witness through either, both, or neither of these convictions pursuant to Rule 609(a)? Let's take a look at the recent opinion of the Court of Appeals of Mississippi in Baskin v. State, 2013 WL 500762 (Miss.App. 2013).

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February 13, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 12, 2013

Foster the People: Court of Appeals of Texas Finds Judge's Instruction Wasn't Improper Testimony Under Rule 605

Similar to its federal counterpartTexas Rule of Evidence 605 provides 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.

So, assume that the Department of Family and Protective Services ("Department") brings an action seeking, inter alia, termination of a mother's parental rights. Then, during trial, assume that the Department decides to seek only termination of parental rights. If the judge, over defense counsel's objection, instructs the jury

I'm going to go ahead and address the jury at this time to make it abundantly clear. The State has elected, and had elected prior to trial, to proceed on termination only. So there are no other alternatives that will be in front of the jury other than termination of parental rights.

Does this instruction violate Rule 605? According to the recent opinion of the Court of Appeals of Texas, Fort Worth, in In re C.C.K., 2013 WL 452163 (Tex.App.-Fort Worth 2013), the answer is "no."

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February 12, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, February 11, 2013

Updated Version of Anchors Away Now Available on SSRN

After a few years of working on it, I finally have completed my article, Anchors Away: Why the Anchoring Effect Suggests that Judges Should be Able to Participate in Plea Discussions. I have now posted an updated version of the article on SSRN. Here is the abstract:

The "anchoring effect" is a cognitive bias by which people evaluate numbers by focusing on a reference point – an anchor – and adjusting up or down from that anchor. Unfortunately, people usually do not sufficiently adjust away from their anchors, so the initial choice of anchors has an inordinate effect on their final estimates. More than 90% of all criminal cases are resolved by plea bargains. In the vast majority of those cases, the prosecutor makes the initial plea offer, and prosecutors often make high initial offers. Assuming that the prosecutor’s opening offer operates as an anchor, nearly all criminal cases in this country produce unjust results based upon an unconscious cognitive bias. 

This article thus proposes a solution that most jurisdictions have rejected: Judges should be able to participate in the plea discussions. Federal Rule of Criminal Procedure 11(c)(1) and most state counterparts strictly preclude judges from participating in plea discussions, but a few jurisdictions permit judicial participation. In these jurisdictions, plea discussions commence with the prosecutor and defense counsel laying out their cases and asking for particular dispositions and the judge responding with the expected post-plea sentence. This article contends that this type of judicial participation would reduce the anchoring effect because the expected post-plea sentence would replace the prosecutor’s opening offer as the anchor and produce fairer final plea bargains. This article also argues that such judicial participation would ameliorate many of the problems associated with the current plea bargaining system.


February 11, 2013 | Permalink | Comments (0) | TrackBack (0)