EvidenceProf Blog

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

A Member of the Law Professor Blogs Network

Friday, February 28, 2014

Is There a Doctor in the House?: 11th Circuit Remands After Lower Court's Erroneous Rule 706 Ruling

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

As you can see from the language of Rule 706(a), there is nothing in the Rule's text limiting expert appointment to either criminal or civil cases. So where did that leave the plaintiff in Gillentine v. Correctional Medical Services, 2014 WL 701575 (11th Cir. 2014)?

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February 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 27, 2014

You Took The Words Out of My Mouth: 4th Circuit Funds Profit and Loss Statement Admissible as Adoptive Admission

Federal Rule of Evidence 801(d)(2)(B) provides that

A statement that meets the following conditions is not hearsay:....  

The statement is offered against an opposing party and:....

(B) is one the party manifested that it adopted or believed to be true....


Often, it is difficult to determine whether a party adopted a statement, such as when a party respond's to a declarant's incriminatory statement with silence. There was no such difficulty, however, in F.T.C. v. Ross, 2014 WL 703739 (4th Cir. 2014).

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February 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 25, 2014

Steeling the Verdict: Eastern District of North Carolina Allows Jury Impeachment Regarding Internet Research

Federal Rule of Evidence 606(b) reads as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.  

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.  

(2) Exceptions. A juror may testify about whether:  

(A) extraneous prejudicial information was improperly brought to the jury’s attention;  

(B) an outside influence was improperly brought to bear on any juror; or  

(C) a mistake was made in entering the verdict on the verdict form.

An emerging problem  in the American justice system is jurors conducting internet research about a case, leading to the Google mistrial. And, when such research is not discovered until after trial, as in United States v. LaRoque, 2014 WL 683729 (E.D.N.C. 2012), it leads to jury impeachment.

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February 25, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, February 24, 2014

The Areas of My Expertise: MN Court Appoints 4 Experts Under Rule 706 in Sex Offender Case

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

I've frequently mentioned how courts rarely appoint experts under Rule 706(a). Today, however, I thought that I would highlight a case in which a court did appoint an expert. Actually, four of them.

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February 24, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, February 20, 2014

Employers Value Evidence!

Harvard Law School surveyed 124 attorneys from the “11 largest employers of HLS students over the last several years: Ropes and Gray, Davis Polk, Skadden Arps, Latham & Watkins, Kirkland & Ellis, Cravath, Cleary Gottlieb, WilmerHale, Covington Burling, Gibson Dunn, and Sidley Austin” about the usefulness to their associates of various elective courses.  The survey is primarily about business courses, but it asked respondents one question about the usefulness of non-business electives.  And the winner (i.e., most useful of those) was . . . 

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February 20, 2014 | Permalink | Comments (1) | TrackBack (0)

Liar, Liar: 3rd Circuit Finds District Court Properly Precluded Admission of Extrinsic Evidence of Witness's Fraud

Federal Rule of Evidence 608(b) reads as follows

(b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

In other words, as was the case in United States v. John-Baptiste, 2014 WL 627685 (3rd Cir. 2014), a party can ask a witness about an alleged act of dishonesty but cannot prove that act through extrinsic evidence.

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February 20, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 18, 2014

Facebook Status: Authenticated -- Supreme Court of Delaware Finds Facebook Messages Were Properly Authenticated

I've written before about  Griffin v. State, 2011 WL 1586683 (Md. 2011), in which the Court of Appeals of Maryland found that a MySpace profile printout wasn't properly authenticated because "someone other than Ms. Barber could have not only created the site, but also posted the 'snitches get stitches....'" Did the Supreme Court of Delaware reach a similar conclusion with regard to Facebook evidence in Parker v. State?

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February 18, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, February 17, 2014

Limiting Cross-Examination in Gender-Based Violence Cases?

Over at Concurring Opinions, Aníbal Rosario Lebrón (Univ. of Louisville, Louis D. Brandeis School of Law), has a thought-provoking post titled, Scorned Law: Rethinking Evidentiary Rules in Cases of Gender-Based Violence

The post argues that "Crit-scholars ... have overlooked to some extent the weight of apparently neutral evidentiary rules upon certain minority and identitarian groups" and advocates "the adoption of rules that would prevent attorneys from impeaching victims of gender-based violence (such as a battered women, rape and sexual harassment victims) with previous acts of untruthfulness not related to the charges.”

- JB

February 17, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, February 14, 2014

Assessment Across The Curriculum Institute for Law Teaching and Learning Spring Conference 2014

Assessment Across The Curriculum

Institute for Law Teaching and Learning

Spring Conference 2014

Saturday, April 5, 2014 

“Assessment Across the Curriculum” is a one-day conference for new and experienced law teachers who are interested in designing and implementing effective techniques for assessing student learning.  The conference will take place on Saturday, April 5, 2014, at the University of Arkansas at Little Rock William H. Bowen School of Law in Little Rock, Arkansas.

Conference Content:  Sessions will address topics such as

  • Formative Assessment in Large Classes
  • Classroom Assessment Techniques
  • Using Rubrics for Formative and Summative Assessment
  • Assessing the Ineffable: Professionalism, Judgment, and Teamwork
  • Assessment Techniques for Statutory or Transactional Courses

By the end of the conference, participants will have concrete ideas and assessment practices to take back to their students, colleagues, and institutions.

Who Should Attend:  This conference is for all law faculty (full-time and adjunct) who want to learn about best practices for course-level assessment of student learning.

Conference Structure:  The conference opens with an optional informal gathering on Friday evening, April 4.  The conference will officially start with an opening session on Saturday, April 5, followed by a series of workshops.  Breaks are scheduled with adequate time to provide participants with opportunities to discuss ideas from the conference.  The conference ends at 4:30 p.m. on Saturday.  Details about the conference are available on the websites of the Institute for Law Teaching and Learning (www.lawteaching.org) and the University of Arkansas at Little Rock William H. Bowen School of Law (ualr.edu/law). 

Conference Faculty:  Conference workshops will be taught by experienced faculty, including Michael Hunter Schwartz (UALR Bowen), Rory Bahadur (Washburn), Sandra Simpson (Gonzaga), Sophie Sparrow (University of New Hampshire), Lyn Entrikin (UALR Bowen), and Richard Neumann (Hofstra).

Accommodations:  A block of hotel rooms for conference participants has been reserved at The DoubleTree Little Rock, 424 West Markham Street, Little Rock, AR 72201.  Reservations may be made by calling the hotel directly at 501-372-4371, calling the DoubleTree Central Reservations System at 800-222-TREE, or booking online at www.doubletreelr.com.  The group code to use when making reservations for the conference is “LAW.” 

February 14, 2014 | Permalink | Comments (0) | TrackBack (0)

A New Theory of Hearsay, Take 4: Further Thoughts on United States v. Boyce

It's interesting that Jeff posted an entry about Judge Posner's concurrence in United States v. Boyce yesterday. My latest set of hearsay posts has come in connection with a CLE I'm conducting in which I argue, in essence, tha Rule 807 should swallow much of Rules 801 through 806. So, it's refreshing to see that such an estemeed jurist apparently holds a similar viewpoint. Here are some more thoughts on Boyce

United States v. Boyce is a garden variety case in which a 911 call was admitted under the present sense impression to the rule against hearsay (Federal Rule of Evidence 803(1)) and/or the excited utterance exception (Federal Rule of Evidence 803(2)). They also again raise the question of why courts are not engaging in a Rule 403 balancing of such statements.

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February 14, 2014 | Permalink | Comments (2) | TrackBack (0)

Thursday, February 13, 2014

Judge Posner Advocates Reforming the Hearsay Rules

As Colin explores alternate hearsay theories in his posts, it is worth highlighting a concurrence in U.S. v. Boyce, decided today in the Seventh Circuit, where Judge Richard Posner attacks the merits of both the present sense impression and excited utterance hearsay exceptions (FRE 803(1) and (2)).   As Judge Posner notes, the arguments against these exceptions are not new, but his no-holds-barred critique, stating the exceptions are “not even good folk psychology,” is sure to generate interest in revisiting the hearsay thicket.  Perhaps the most fascinating aspect of the concurrence comes at the end, however, when Judge Posner states:

“I don’t want to leave the impression that in questioning the present sense and excited utterance exceptions to the hearsay rule I want to reduce the amount of hearsay evidence admissible in federal trials. What I would like to see is Rule 807 (“Residual Exception”) swallow much of Rules 801 through 806 and thus many of the exclusions from evidence, exceptions to the exclusions, and notes of the Advisory Committee. The “hearsay rule” is too complex, as well as being archaic.  Trials would go better with a simpler rule, the core of which would be the proposition (essentially a simplification of Rule 807) that hearsay evidence should be admissible when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.”

Although we appear to differ on the details, Judge Posner’s analytical trajectory – attacking the present sense impression exception as difficult to justify (particularly in a modern era of text messaging), but advocating an ultimate goal of allowing more, rather than less hearsay, under a more rational, modern framework – roughly tracks my own (see here and here and previous blog posts).  Unlike Judge Posner, however, I am skeptical that reliance on amorphous reliability assessments and judicial discretion under Rule 807 is a workable solution, particularly in a world dominated by settlements and plea bargains where litigants need a decent sense, in advance of trial court rulings, of whether their evidence is admissible.  

Thanks to Rob Luther for forwarding me the opinion.

- JB

February 13, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 12, 2014

You (Don't) Complete Me: 9th Circuit Finds Rule of Completeness Doesn't Apply to Defendant's Confession

Federal Rule of Evidence 106 states that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

As the recent opinion of the Ninth Circuit in United States v. Vallejos, 2014 WL 503537 (9th Cir. 2014), makes clear, however, fairness only goes so far.

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February 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, February 11, 2014

A New Theory of Hearsay, Take 3: Rule 602 & Anonymous Hearsay Declarants

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

As a Rule 803 exception, this present sense impression exception applies "regardless of whether the declarant is available as a witness...." Indeed, the exception can apply even if the declarant has not been identified. But, like with a witness's testimony at trial, a statement offered under a hearsay exception is only admissible if the declarant had personal knowledge under Federal Rule of Evidence 602. So, where does that leave us?

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February 11, 2014 | Permalink | Comments (1) | TrackBack (0)

Monday, February 10, 2014

A New Theory of Hearsay, Take 2: Rule 609(a)(1)(B) & Statements Offered For a Nonhearsay Purpose

Dan is on trial for aggravated battery. He has a prior conviction for aggravated battery. After Dan testifies, the prosecution seeks to impeach him through evidence of his five year-old conviction for armed robbery. To be admissible, the evidence cannot simply satisfy Federal Rule of Evidence 403; instead, pursuant to Federal Rule of Evidence 609(a)(1)(B), the prosecution must affirmatively prove that the probative value of the conviction outweighs its prejudicial effect.

A defendant calls an alibi witness at trial. After the alibi witness testifies on direct examination, the prosecution seeks to impeach him with evidence of a prior inconsistent statement that tends to incriminate the defendant. The prior statement is hearsay and only admissible to impeach that alibi witness, not to prove the truth of the matter asserted. My question today is: Should courts apply the same modified Rule 403 analysis that they would apply in the case above?

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February 10, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, February 7, 2014

The Fifth Amendment Privilege and "Bridgegate"

For professors covering or attorneys interested in the fascinating Fifth Amendment privilege issues raised in United States v. Hubbell, 530 U.S. 27 (2000) and lower court cases like In re Grand Jury Subpoena, 383 F.3d 905 (9th Cir.2004); U.S. v. Ponds 454, F.3d 313, 319 (D.C. Cir. 2006), etc., a contemporary example is presented in the ongoing investigations into the George Washington Bridge closing scandal involving New Jersey Governor Chris Christie.  Aides caught up in the affair have been served with document subpoenas and are exercising a Fifth Amendment privilege not to respond.  This Newsweek story does a nice job (I think) of explaining the limited yet powerful nature of the privilege in this context and, not coincidentally (in terms of my opinion of the article's merits), quotes me in its discussion . . . .

- JB

February 7, 2014 | Permalink | Comments (1) | TrackBack (0)

A New Theory of Hearsay: Incorporating Rule 403 Into the Hearsay Analysis

Federal Rule of Evidence 803 provides exceptions to the rule against hearsay that apply regardless of the availability of the hearsay declarant. Federal Rule of Evidence 804 provides exceptions to the rule against hearsay that apply if the hearsay declarant is "unavailable." As exceptions to the rule against hearsay, these Rules merely place qualifying statements beyond the scope of Federal Rule of Evidence 802. And what this means is that, like all evidence, statements falling under a hearsay exception must be relevant under Federal Rule of Evidence 401 and have a probative value that is not substantially outweighed by dangers such as the danger of unfair prejudice under Federal Rule of Evidence 403. And yet, parties almost never make Rule  403 objections to evidence offered under a hearsay exception, and courts almost never sustain such objections. Why?

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February 7, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 5, 2014

(Un)available For a Limited Time: Court of Appeals of Idaho Wrongly Precludes Statement Against Interest Appeal

Similar to its federal counterpartIdaho Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for 

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject declarant to civil or criminal liability, or to render invalid a claim by declarant against another, that a reasonable man in declarant's position would not have made the statement unless declarant believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 

But such a "statement against interest" is only admissible if the declarant is "unavailable" at trial under Idaho Rule of Evidence 804(a). So, let's say that a trial court deems a declarant "unavailable" under Rule 804(a) but deems the declarant's statement inadmissible under Rule 804(b)(3). Can an appellate court affirm that ruling by concluding that the declarant was actually available? According to the recent opinion of the Court of Appeals of Idaho in State v. Fair, 2014 WL 403179 (Idaho App. 2014). I disagree.

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February 5, 2014 | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 4, 2014

Florida's Unfolding Drug Evidence Scandal

Florida is investigating a government chemist who “is suspected of taking illegal drugs out of evidence storage and replacing them with over-the-counter medication.”  The state has “identified nearly 2,600 cases spanning 35 counties that [the] chemist processed between 2006 and the present day” and has instituted a “massive evidence review in thousands of drug cases handled by [the] chemist, saying its findings could lead to some criminal cases being quashed and drug dealers set free.”

- JB


February 4, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, February 3, 2014

Juror Question about Potential Third-Party Payor

In a previous post, I wrote about a Missouri court that granted a new trial on the basis of post-verdict evidence of a racist juror (who allegedly called the plaintiff by a racial slur during jury deliberations).

The case also provides an example of jurors wondering about just who will pay if the defendant is found liable---the defendant, or some third party.  Juror interest in this issue is at the root of Federal Rule of Evidence 411, which provides, "Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully."  As the advisory committee note to Rule 411 observes, the rule is motivated by "the feeling that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds."  In other words, the jury might pick the deep pocket of a defendant's insurance company to compensate a sympathetic plaintiff, regardless of whether the plaintiff is entitled to damages at law.

In Exhibit 5 of the plaintiff's motion papers (see page 76 of the linked PDF) in Amrine v. Ossman, we see the jury's handwritten question: "Does any award/compensation to the Plaintiff are paid by who? State or [Defendant] Ossman?"

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February 3, 2014 | Permalink | Comments (0) | TrackBack (0)

Night Nurse: Indiana Court Finds Statements to Nurse by Child Victim Admissible Under Rule 803(4)

Similar to its federal counterpartIndiana Rule of Evidence 803(4) provides an exception to the rule against hearsay for

A statement that:

(A)      is made by a person seeking medical diagnosis or treatment;

(B)      is made for — and is reasonably pertinent to — medical diagnosis or treatment; and

(C)      describes medical history; past or present symptoms, pain or sensations; their inception; or their general cause.

Rule 803(4) is largely premised on the "selfish motive" rationale: that a patient is motivated to be honest/accurate when describing symptoms/causes to a doctor because inaccuracy could lead to misdiagnosis/mistreatment. Based upon this rationale, many litigants have attempted to argue that statements by young children should not be admissible under Rule 803(4) because such children do not realize the dangers of such inaccuracy. Most litigants are unsuccessful in this endeavor, as was the case in Fuentes v. State, 2014 WL 298938 (Ind.App. 2014).

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February 3, 2014 | Permalink | Comments (1) | TrackBack (0)