Monday, November 11, 2013
I am curious when Evidence professors teach the Confrontation Clause, and how much coverage they allot to it. David Sklansky’s teacher’s manual suggests covering the Confrontation Clause after introducing hearsay but before going through the exemptions/exceptions. A quick check of a half dozen textbooks on my shelf found that all the others place the Confrontation Clause reading after the exemptions/exceptions.
Since I’m in the middle of teaching the course for only the second time, I don’t have any developed thoughts about the timing and extent of coverage, and would love to read the comments of those who have taught the class more times about why they have made the choices they’ve made on this subject.
For what it’s worth, I teach a 4 credit Evidence course, we spent about 2.5 hours covering the Confrontation Clause material I assigned, and I cover it after going through the hearsay exceptions. I’m inclined to cut the class time devoted to Confrontation down to 2 hours max next time through, and am open to covering it before we run through 803 and 804.
Friday, November 8, 2013
Pursuant to the Bruton doctrine, at a joint jury trial, the Confrontation Clause is violated by the admission of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. That said, in the wake of the Supreme Court's opinion in Crawford v. Washington, almost every court has found that Bruton only covers testimonial hearsay. I disagree with this conclusion, but, even assuming that it is correct, I wonder what such a conclusion actually means. Let's take a look at the recent opinion of the United States District Court for the Eastern District of Kentucky in United States v. Thompson, 2013 WL 5528827 (E.D.Ky. 2013), as an example.
Thursday, November 7, 2013
Federal Rule of Evidence 608(b) provides that
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.
The recent opinion of the United States District Court for the District of Arizona in United States v. Dellinger, 2013 WL 5929946 (D.Ariz. 2013), does a good job of explaining the ins and outs of this Rule.
Wednesday, November 6, 2013
28 Days Later: Connecticut Court Finds Photos Taken 28 Days After Assault Irrelevant To Prove Lack of Serious Physical Injury
A defendant in Connecticut is charged with second-degree assault, which requires the prosecution to prove that the victim suffered a "serious physical injury." Connecticut law does not define the phrase "serious physical injury," but its courts have concluded that "[i]t is entirely possible to cause serious physical injury without causing disfigurement or a permanent injury." The defendant has photographs of the victim's face and profile taken 28 days after his assault, both seemingly unmarred by any visible facial injuries. Are these photos relevant? According to the recent opinion of the Appellate Court of Connecticut in State v. Lewis, 2013 WL 5798962 (Conn.App. 2013), the answer is "no." I disagree.
Tuesday, November 5, 2013
Federal Rule of Evidence 609(a)(1) provides that
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant....
As the United States District Court for the District of Illinois noted in its recent opinion in Cefalu v. Village of Glenview, 2013 WL 5878603 (N.D.Ill. 2013), a district court has broad discretion in determining whether evidence of prior convictions is admissible under Rule 609(a)(1). That said, I still find the court's opinion in Cefalu to be baffling.
Monday, November 4, 2013
Federal Rule of Evidence 1002, the Best Evidence Rule, provides that
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
That said, a party can also satisfy the Best Evidence Rule by producing a duplicate under Federal Rule of Evidence 1003 or accounting for its nonproduction of the original under Federal Rule of Evidence 1004. So, what happens when a party fails to comply with any of these Rules? Let's take a look at the recent opinion of the United States Tax Court in Phillips v. C.I.R., 2013 WL 5827656 (U.S.Tax.Ct. 2013).
Friday, November 1, 2013
A Guest Post by Kevin Lapp: Multiple Choice Exams are (a) good assessment tools, (b) bad assessment tools, (c) all of the above.
Multiple choice testing is a popular assessment format in Evidence courses, more popular in my experience in Evidence than in other courses. Some professors use it exclusively, while others mix multiple-choice testing with essay questions on their exams. There’s good reason for using multiple choice testing in Evidence courses. For one, the MBE portion of the bar exam contains multiple choice Evidence questions, so doing so as part of a final exam helps prepare students for the bar exam format. In addition, multiple choice testing has been around, and is widely accepted as a credible format to assess student knowledge. Evidence is also a heavily rule-based class that lends itself to an assessment format that requires students to identify a single correct answer. Finally, multiple choice questions allow professors to assess more topics than can be squeezed into an essay question, reducing the chances that a student performs well on an exam because he happened to know the issues covered by the essay questions.
But there can be a large gap between good multiple choice questions and bad multiple choice questions. This post is about how those of us who do use multiple choice questions can know if we are doing it in a way that makes for good assessment. The credibility of our multiple choice questions as sound assessment tools is particularly important given the high stakes testing that goes on in so many law school classrooms. When the great bulk, if not the entire portion, of a student’s grade hinges on a single 3 or 4 hour exam, it is our duty to take advantage of the available tools to ensure that our exams function as credible assessment tools.
Thursday, October 31, 2013
Like many readers of this blog, I work on both Evidence and Criminal Procedure issues, and have been most recently working on a piece about NYC Stop and Frisk. I was taken off guard by today's appeals court ruling staying Judge Scheindlin's Stop and Frisk Ruling, and removing her from the case. Would be curious if there are any informed readers who have a sense of what is going on . . . .
Again, I'm digging back to my days as a film critic to pull out a horror movie review. I would only mildly recommend the movie, The Jacket, but I would highly recommend its source material, Jack London's The Star Rover. You can read it for free by clicking here.
The Jacket(Warner Home Video, 6.21.2005)
Loosely based upon Jack London's final novel, "The Star Rover," The Jacket similarly focuses on an incarcerated alleged murderer able to time-travel while in straitjacketed solitary confinement. Jack Starks (Adrien Brody) awakens with memory deficiencies after his apparent Desert Storm death and is subjected to mental asylum experimentation. Cocktails of anti-psychotic drugs and morgue drawer immobilization revive violent flashes of his past, while enabling him to experience -- and possibly alter -- the future.
Wednesday, October 30, 2013
Redacted: Supreme Court of Georgia Finds Redacted Co-Defendant Confession Poses No Problem Under Bruton
Pursuant to the Bruton doctrine, there is a Confrontation Clause violation when, at a joint jury trial, the prosecution introduces a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. That said, in Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court held that
that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.
This was the fundametal problem for the defendant in Teasley v. State, 2013 WL 5508603 (Ga. 2013).
Tuesday, October 29, 2013
Federal Rule of Evidence 807 reads as follows:
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
Statements are rarely deemed admissible under this residual exception. But, according to the recent opinion of the United States Bankruptcy Court for the District of New Mexico in In re Vaughan Co. Realtors, 2013 WL 5744727 (Bkrtcy D.N.M. 2013), the is at least one circumstance where this exception is frequently invoked.
Monday, October 28, 2013
Allow Me To Illustrate: Supreme Court of Ohio Finds Learned Treatise Limitation Applies to Illustrations
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, [for] statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
But does the limitation on admitting evidence from learned treatises as exhibits merely cover theories and opinions or also illustrations? That was the question addressed by the Supreme Court of Ohio in its recent opinion in Moretz v. Muakkassa, 2013 WL 5746117 (Ohio 2013).
Friday, October 25, 2013
Conspiracy Theory: 11th Circuit Finds Co-Conspirator Admissions Properly Admitted Despite Defendant's Conspiracy Acquittal
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement that meets the following conditions is not hearsay:....
The statement is offered against an opposing party and:....
was made by the party’s coconspirator during and in furtherance of the conspiracy.
So, assume that a defendant is charged with Conspiracy to make false statements and making false statements based on his alleged participation in a mortgage fraud conspiracy. Second, assume that the prosecution admits co-conspirator statements at trial pursuant to Rule 801(d)(2)(E). Third, assume that the defendant is convicted of making false statements but acquitted of conspiracy to make false statements. Can the defendant claim on appeal that the subject statements were improperly admitted under Rule 801(d)(2)(E)? According to the recent opinion of the Eleventh Circuit in United States v. Derosa, 2013 WL 5716884 (11th Cir. 2013), the answer is "no."
Thursday, October 24, 2013
Impeachable Offense?: Court of Appeals of Idaho Finds Misdemeanor Conviction Admissible Under Rule 608(b)
Idaho Rule of Evidence 608(b) provides that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility, of the witness, 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 concerning (1) the character of the witness for truthfulness or untruthfulness, or (2) the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Meanwhile, Idaho Rule of Evidence 609(a) provides that
For the purpose of attacking the credibility of a witness, evidence of the fact that the witness has been convicted of a felony and the nature of the felony shall be admitted if elicited from the witness or established by public record, but only if the court determines in a hearing outside the presence of the jury that the fact of the prior conviction or the nature of the prior conviction, or both, are relevant to the credibility of the witness and that the probative value of admitting this evidence outweighs its prejudicial effect to the party offering the witness. If the evidence of the fact of a prior felony conviction, but not the nature of the conviction, is admitted for the purpose of impeachment of a party to the action or proceeding, the party shall have the option to present evidence of the nature of the conviction, but evidence of the circumstances of the conviction shall not be admissible.
So, assume that a witness has a prior misdemeanor conviction which is probative of his untruthfulness. Evidence of this conviction would clearly be inadmissible under Rule 609(a) because it is a misdemeanor and not a felony. But could it be used to cross-examine the witness under Rule 608(b)?According to the recent opinion of the Court of Appeals of Idaho in State v. Bergerud, 2013 WL 5716821 (Idaho App. 2013), the answer is "yes."
Wednesday, October 23, 2013
According to an article from earlier today, in Pennsylvania,
A decade after a back-and-forth legislative battle that saw both doctors and lawyers visiting the state capitol by the hundreds – perhaps thousands – to argue for or against tort reforms that led to state law modifications in 2003, the two professions recently changed lobbying tactics by mutually agreeing on a new reform that both sides say will help.
As a result, Senate Bill 379 sailed smoothly through the Pennsylvania House and Senate, and was recently signed by Governor Corbett.
SB 379, also known as the Benevolent Gesture Medical Professional Liability Act, allows health care providers to make benevolent gestures prior to the start of medical malpractice lawsuits, mediations, arbitrations or administrative actions and not have those statements or gestures of contrition used against them as long as such actions are not statements of negligence or fault.
So, what exactly does the Act cover?
Tuesday, October 22, 2013
I Need a Remedy: Court of Appeals of Tennessee Finds Error in Exclusion of Subsequent Remedial Measure Evidence
When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent remedial measures is not admissible to prove strict liability, negligence, or culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving controverted ownership, control, or feasibility of precautionary measures, or impeachment.
In Burchfield v. Renfree, 2013 WL 5676268 (Tenn.Ct.App. 2013), the Court of Appeals of Tennessee found that the trial court should have permitted the plaintiffs to admit evidence that the defendant doctor stopped performing endoscopic carpal tunnel release surgery after the plaintiff's injury during the procedure Why?
Monday, October 21, 2013
Texas Rule of Evidence 705 reads as follows:
(a) Disclosure of Facts or Data. The expert may testify in terms of opinion or inference and give the expert's reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event disclose on direct examination, or be required to disclose on cross-examination, the underlying facts or data.
(b) Voir dire. Prior to the expert giving the expert's opinion or disclosing the underlying facts or data, a party against whom the opinion is offered upon request in a criminal case shall, or in a civil case may, be permitted to conduct a voir dire examination directed to the underlying facts or data upon which the opinion is based. This examination shall be conducted out of the hearing of the jury.
(c) Admissibility of opinion. If the court determines that the underlying facts or data do not provide a sufficient basis for the expert's opinion under Rule 702 or 703, the opinion is inadmissible.
(d) Balancing test; limiting instructions. When the underlying facts or data would be inadmissible in evidence, the court shall exclude the underlying facts or data if the danger that they will be used for a purpose other than as explanation or support for the expert's opinion outweighs their value as explanation or support or are unfairly prejudicial. If otherwise inadmissible facts or data are disclosed before the jury, a limiting instruction by the court shall be given upon request.
I haven't yet had the chance on this blog to discuss this rule or its federal counterpart, but that's no longer the case thanks to In re Commitment of Mitchell, 2013 WL 5658425 (Tex.App.-Beaumont 2013).
Friday, October 18, 2013
Like its federal counterpart, New Jersey Rule of Evidence 613 allows for a witness to be impeached through evidence of a prior inconsistent statement. One a witness has been so impeached, a judge might give the jury the following charge:
If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case, with intent to deceive you, you may give such weight to his or her testimony as you may deem it is entitled. You may believe some of it, or you may, in your discretion, disregard all of it.
But is this "false in one, false in all" charge mandatory like certain rules of evidence or simply a charge that the judge might decide to give? This was the question addressed by the Superior Court of New Jersey, Appellate Division, in its recent opinion in State v. Barthelus, 2013 WL 5575897 (N.J.Super.A.D. 2013).
Thursday, October 17, 2013
Major League Baseball chief operating officer Rob Manfred is on the witness list for Alex Rodriguez's appeal of his 211-game suspension in the Biogenesis probe, a person familiar with the process said Wednesday.
Manfred is the league's representative on the three-person panel overseeing the arbitration process, but he has no say in the final decision made by chief arbitrator Fredric Horowitz, who can uphold the suspension, overturn it or reduce it. David Prouty of the Major League Baseball Players Association is the third member of the panel.
Wednesday, October 16, 2013
Three Forthcoming Articles of Interest: Are Prior Convictions Valid Impeachment? Should Judges Talk to Jurors More? Do Liberal Procedures Lead to Punitive Substance?
"Impeachment by Unreliable Conviction" Boston College Law Review, Forthcoming
ANNA ROBERTS (Seattle University School of Law)
"Judges Talking to Jurors in Criminal Cases: Why U.S. Judges Do it so Differently from Just About Everyone Else" Arizona Journal of International and Comparative Law
PAUL MARCUS (William & Mary Law School)
"Does Liberal Procedure Cause Punitive Substance? Preliminary Evidence from Some Natural Experiments" Southern California Law Review, Forthcoming
DONALD A. DRIPPS (University of San Diego School of Law)
Abstracts after the jump.