EvidenceProf Blog

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

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Friday, March 1, 2013

My New Essay: Beware of the Diamond Dogs: Why a “Credentials Alone” Conception of Probable Cause Violates the Compulsory Process Clause

Florida v. Harris didn't turn out the way that I had hoped. As Lyle Denniston noted in his SCOTUSblog post, Opinion recap: trust the police dog

Expressing considerable confidence that trained drug-sniffing dogs are reliable, and showing specific respect for one Florida police dog — Aldo — the Supreme Court on Tuesday made it quite easy for police officers to search a car or truck for drugs once a canine snooper has “alerted” to a smell on the vehicle.   If the police offer evidence that a dog has been trained, or got a certificate from a training agency, that may well be enough to give police permission to turn an “alert” into a search of a vehicle, the Court said in a unanimous decision written by Justice Elena Kagan (Florida v. Harris, docket 11-817). 

The Court specifically rejected a very detailed checklist of proof of a dog’s reliability that the Florida Supreme Court had drawn up before a court could treat a dog’s signaling of the presence of a drug odor as the equivalent of “probable cause” to search.  In place of such a checklist, the Court set up a “reasonably prudent person” test — that is, a common-sense review of all of the facts about a dog’s alert, to see if such a prudent person would think that a search would turn up evidence of illegal drugs.  “A sniff is up to snuff when it meets that test,” Kagan cleverly summed up.

So, yes, the Supreme Court essentially did tell us to "trust the police dog." My response: Don't trust the diamond dogs. That's the argument of my essay, Beware of the Diamond Dogs: Why a 'Credentials Alone' Conception of Probable Cause Violates the Compulsory Process Clause, recently published by the Loyola University New Orleans Journal of Public Interest Law. You can now download the essay by clicking here.

-CM  

March 1, 2013 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 28, 2013

The Guardian: Supreme Court of Colorado Finds Guardian Ad Litem Holds Child's Privilege in Parental Rights Case

Like most states, Colorado has a psychotherapist-patient privilege. Colorado's privilege, contained in Colorado Revised Statute Section 13-90-107(g), provides that

A licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor shall not be examined without the consent of the licensee's, certificate holder's, or registrant's client as to any communication made by the client to the licensee, certificate holder, or registrant or the licensee's, certificate holder's, or registrant's advice given in the course of professional employment; nor shall any secretary, stenographer, or clerk employed by a licensed psychologist, professional counselor, marriage and family therapist, social worker, or addiction counselor, a registered psychotherapist, or a certified addiction counselor be examined without the consent of the employer of the secretary, stenographer, or clerk concerning any fact, the knowledge of which the employee has acquired in such capacity; nor shall any person who has participated in any psychotherapy, conducted under the supervision of a person authorized by law to conduct such therapy, including group therapy sessions, be examined concerning any knowledge gained during the course of such therapy without the consent of the person to whom the testimony sought relates.

Normally, the patient is the holder of the psychotherapist-patient privilege and can decide whether to waive the privilege. When, however, "the patient is a child who is too young or otherwise incompetent to hold the privilege, the child's parent typically assumes the role of privilege holder." In such cases, it is typically the child's parent or parents who have the authority to decide whether to waive the privilege. But what happens when there is an action to terminate the parental rights of the child's parent(s)? That was the question of first impression addressed by the Supreme Court of Colorado in its recent opinion in L.A.N. v. L.M.B., 292 P.3d 942 (Colo. 2013).

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February 28, 2013 | Permalink | Comments (2) | TrackBack (0)

Wednesday, February 27, 2013

Dying Declarations?: Should Courts Apply a Rule 403 Analysis to Questionable Hearsay Exceptions?

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

In a criminal proceeding, [for] a statement made by a victim unavailable as a witness because of death is admissible if it was made voluntarily and in good faith and while the declarant was conscious of declarant's impending death. 

And, similar to its federal counterpartNew Jersey Rule of Evidence 403 states that

Except as otherwise provided by these rules or other law, relevant evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence.

Many people criticize Rule 804(b)(2) because dying declarations are often made while the victim is in a hypoxic or anoxic state that can cause delirium, which would greatly undermine the reliability of the dying declarant's statement. The problem for defendants, however, is that Rule 804(b)(2) isn't going anywhere any time soon. So, what if a defendant claimed that a defendant that qualifies for admission under Rule 804(b)(2) should still be excluded under Rule 403? Let's take a look at the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Bacon-Vaughters, 2013 WL 656248 (N.J.Super.A.D. 2013).

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February 27, 2013 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 26, 2013

All Sense of Proportion: Can a Probable Cause Affidavit Qualify as a Present Sense Impression?

Similar to its federal counterpartIndiana Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining a material event, condition or transaction, made while the declarant was perceiving the event, condition or transaction, or immediately thereafter.

And, similar to its federal counterpartIndiana Rule of Evidence 803(8), provides an exception to the rule against hearsay (unless the sources of information or other circumstances indicate lack of trustworthiness)

[for] records, reports, statements, or data compilations in any form, of a public office or agency, setting forth its regularly conducted and regularly recorded activities, or matters observed pursuant to duty imposed by law and as to which there was a duty to report, or factual findings resulting from an investigation made pursuant to authority granted by law. The following are not within this exception to the hearsay rule: (a) investigative reports by police and other law enforcement personnel, except when offered by an accused in a criminal case; (b) investigative reports prepared by or for a government, a public office, or an agency when offered by it in a case in which it is a party; (c) factual findings offered by the government in criminal cases; and (d) factual findings resulting from special investigation of a particular complaint, case, or incident, except when offered by an accused in a criminal case.

So, let's say that a police officer fills out a probable cause affidavit while waiting 20 minutes before administering a chemical breath test on a suspect. Would that affidavit be admissible under Rule 803(1) or inadmissible under Rule 803(8)? Let's take a look at the recent opinion of the Court of Appeals of Indiana in Jones v. State, 2013 WL 500799 (Ind.App. 2013).

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February 26, 2013 | Permalink | Comments (0) | TrackBack (0)

Monday, February 25, 2013

The Rule of Evidence That's Never Applied, Take 3: Former Jury Venireman as Witness?

As I noted last week, I have yet to find a single case in which a court has applied Federal Rule of Evidence 606(a), which 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.

I did, however, post about two cases (here and here) in which courts applied the principles of Rule 606(a) to the proffered testimony of two former jurors. Now, courtesy of Ann Murphy, let's take a look at United States v. Kills Enemy, 3 F.3d 1201 (8th Cir. 1993), in which the prosecution called a former jury venireman at trial.

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February 25, 2013 | Permalink | Comments (0) | TrackBack (0)