EvidenceProf Blog

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

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Friday, February 22, 2013

No Exit: Florida Court Deems Evidence of Attempted Suicide Admissible to Prove Consciousness of Guilt

An individual is a suspect in a crime. That individual flees from the relevant jurisdiction and hides out in another jurisdiction before being apprehended and charged with the subject crime. At trial, the prosecution will be able to present evidence of the defendant's flight as circumstantial evidence of his consciousness of guilt.

An individual is a suspect in a crime. The individual tries to kill himself. At trial, will the prosecution be able to present evidence of the defendant's suicide attempt as circumstantial evidence of his consciousness of innocence? According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in Sloan v. State, 2013 WL 85449 (Fla.App. 4 Dist. 2013), the answer is "yes."

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February 22, 2013 | Permalink | Comments (2) | TrackBack (0)

Thursday, February 21, 2013

Joe Paterno, Grand Jury Presentments, and the Rule Against Hearsay

Last week, Brian Gallini presented the paper, Bringing Down a Legend: How an 'Independent' Grand Jury Ended Joe Paterno's Career, at the University of South Carolina School of Law. The paper deals with Pennsylvania's grand jury presentment, a grand jury communication to the public concerning the grand jury's investigation. While Federal Rule of Criminal Procedure 6(e)(2) and many state counterparts ensure the secrecy of grand jury proceedings, the presentments issued in Pennsylvania and other states allow grand juries to serve as the mouthpiece of prosecutors, who can prove their cases in the court of public opinion. Sometimes, however, a grand jury presentment isn't just about proving a case. Professor Gallini uses the Jerry Sandusky/Joe Paterno imbroglio as an avenue through which to discuss the conceptual problem of grand jury presentments and third parties who are not the subjects of grand jury investigations. This was certainly the case in Pennsylvania when a grand jury was convened to investigate allegations of child molestation against Jerry Sandusky and ended up issuing a presentment that ensnared the legendary coach in its net. The result of the presentment for Sandusky was that his case could proceed to trial. The result for Paterno was that he could be fired from his job. We might think that both of these were the correct results, and they might indeed both have been proper outcomes.

But that's not really that question. The question, according to Gallini, is the process (not) afforded to Paterno and other third parties mentioned in grand jury presentments. Most grant juries proceed with a prosecutor presenting his case to grand jurors with no role for defense counsel to present any evidence or cross-examine any witnesses. Prosecutors generally have no obligation to present exculpatory evidence to grand jurors, and they can present evidence that was unconstitutionally obtained and inadmissible under the rules of evidence. To what extent should the press report, and the public believe, findings in a grand jury presentment? What about employers? And to what extent does the analysis change when those findings relate to third parties rather than the target of the grand jury investigation? These are fascinating questions, and they have already led my colleague Derek Black to write an interesting post on the subject at The Faculty Lounge.

In this post, I will focus on Evans v. Com., Unemployment Compensation Bd. of Review, 484 A.2d 822 (Pa.Cmwlth 1984), which deals with some of these issues and the question of whether a grand jury presentment is hearsay when admitted to prove the reason why a third party mentioned in it was fired.

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February 21, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 20, 2013

The Rule of Evidence That's Never Applied, Take 2: Former Juror as Witness

Federal Rule of Evidence 606(a) provides that

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

As noted in yesterday's post, I have yet to come across a case in which a member of the jury testified or was precluded from testifying pursuant to Rule 606(a). But I have come across two cases in which former jurors were precluded from testifying. One of those cases is Broadhead v. State Farm Mut. Auto. Ins. Co., 579 N.W.2d 761 (Wis.App. 1998), which I discussed yesterday. The other case is People v. Knox, 157 Cal.Rptr. 238 (Cal.App. 1979), which I will discuss today. 

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February 20, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 19, 2013

The Rule of Evidence That's Never Applied: Federal Rule of Evidence 606(a) and Jurors as Witnesses

Federal Rule of Evidence 606(a) provides that

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

As long as I have been teaching Rule 606(a), I haven't come across a single case in which the Federal Rule of a state counterpart has been applied. If any readers are aware of any such cases, please pass them along. Meanwhile, in the next 2 days, I will post entries about cases that almost involved application of Rule 606(a). Both of them involve similar fact patterns: a juror discharged by the judge later being called as a witness by one of the parties.

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

Monday, February 18, 2013

Structural Integrity: District of Minnesota Finds Judicial Testimony is Not Normally Structural Error

Federal Rule of Evidence 605 provides that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

But while a party does dot need to object to a judge's testimony to preserve the issue for appellate review, is judicial testimony normally structural error necessitating a new trial without a showing of actual prejudice? According to the recent opinion of the United States District Court for the District of Minnesota in Kachina v. Roy, 2012 WL 6965116 (D. Minn. 2012), the answer is "no."

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February 18, 2013 | Permalink | Comments (0) | TrackBack (0)