EvidenceProf Blog

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

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Tuesday, October 7, 2014

Allison Larsen on the Colbert Report

For those who missed it, last night, my W&M colleague Alli Larsen discussed a component of her ongoing work on Supreme Court factfinding, and particulaly its practice of pulling dubious facts from amicus briefs on … the Colbert Report

Although the coverage focuses on Supreme Court practice, to my mind this work brings a fresh perspective to the long forgotten Evidence-related debate about the proper contours and boundaries of judicial notice of “legislative” facts.

Here is a SSRN link to her forthcoming article, The Trouble with Amicus Facts

Here is a link to the Colbert Report segment

Here is a link to coverage in the NY Times

Fascinating stuff!

October 7, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, October 6, 2014

Derek Black on Ohio v. Clark

Here is my colleague Derek Black's take on Ohio v. Clark, the Confrontation Clause case involing abuse reported to a teacher: Teachers Who Report Abuse: Law Enforcement Agents or Good Samaritans?

October 6, 2014 | Permalink | Comments (0) | TrackBack (0)

A Windfall for the Government, Take 2: Seth Stoughton on Arizona v. Gant

Back in 2009, I published the article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. At the same time, I noted in the blog post Arizona v. Gant: A Windfall For The Government? that a portion of Gant could be read to favor the government and cited People v. Osborne, 2009 WL 2026328 (Cal. App. 1 Dist. 2009), as support for  my conclusion. Now, my new colleague, Seth Stoughton, has uncovered a case that provides an even better illustration of this point. Here is his analysis of that case:

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October 6, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, October 3, 2014

Dual Function, Take 2: Marianna Brown Bettman's Post on Ohio v. Clark

With the Supreme Court granting cert yesterday in Ohio v. Clark, I thought it was an opportune time to provide another link to Professor Marianna Brown Bettman's terrific blog post on the case. When I first linked to this post back last November, I noted:

Professor Bettman points out that the dissent might be the most interesting part of the case and not just because Justice O'Connor practically begs the United States Supreme to grant cert.

Now, the Supreme Court has done just that.


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

Thursday, October 2, 2014

Dual Function?: Supreme Court Grants Cert in Confrontation Clause Case

Today, the Supreme Court granted cert in Ohio v. Clark, a case involving these 2 issues:

(1) Whether an individual's obligation to report suspected child abuse makes that individual an agent of law enforcement for purposes of the Confrontation Clause; and (2) whether a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as “testimonial” statements subject to the Confrontation Clause.  

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October 2, 2014 | Permalink | Comments (2) | TrackBack (0)

It Was 7 Years Ago Today: 7 Years of EvidenceProf Blog & 7 Year Old Convictions

Seven years ago today, I started EvidenceProf Blog. Here was my first post:

I am a professor at the John Marshall Law School, teaching Evidence and Civil Procedure.  I hope that this blog becomes a place where evidence professors across the country can talk about recent developments in evidence law.

Now, seven years later, I'm at a new school: the University of South Carolina School of Law. I teach some more classes: Criminal Law and Criminal Adjudication. And I have a new job: Associate Dean for Faculty Development. But the mission remains the same. Today, in honor of seven years, let's take a look at the recent opinion of the Third Circuit in United States v. Caldwell, 760 F.3d 267 (3rd Cir. 2014), a case involving the relevance of seven year old convictions.

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October 2, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 1, 2014

Completely Refreshing: Does the Rule of Completeness Apply to Refreshing Recollection?

New Jersey Rule of Evidence 612 states that

Except as otherwise provided by law in criminal proceedings, if a witness while testifying uses a writing to refresh the witness' memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness. The adverse party shall also be entitled to introduce in evidence those portions which relate to the testimony of the witness but only for the purpose of impeaching the witness. If it is claimed that the writing contains material not related to the subject of the testimony, the court shall examine the writing in camera and excise any unrelated portions. If the witness has used a writing to refresh the witness' memory before testifying, the court in its discretion and in the interest of justice may accord the adverse party the same right to the writing as that party would have if the writing had been used by the witness while testifying.

Based on the language of this rule, the trial judge clearly made a misstatement of law in Joachim v. Jackson, 2014 WL 4745547 (N.J.Super.A.D. 2014). Or did he?

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October 1, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, September 30, 2014

The Last Frontier: Alaska Murder Seeks Admission of Results of Two Polygraph Exams

According to an article in the New Miner (Alaska),

The attorney for a woman accused of killing her 18-month-old son in November hopes the court will admit evidence from a polygraph test the defense believes will help absolve her of guilt.

Bill Satterberg, the attorney representing Fairbanks resident Amberlynn Swanson, filed a request that the court admit two pieces of evidence in the case: a polygraph test of Swanson conducted by an expert in the field, David Raskin, and expert testimony from Raskin claiming law enforcement failed to properly conduct a test of their own....

On Sept. 17, Satterberg filed a motion requesting the judge allow the consideration of the two polygraphs, one by Raskin and one by Alaska State Troopers. 

So, what's the likelihood that Swanson will be successful?

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September 30, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, September 29, 2014

Telling Lies in America: New Jersey Class Action Challenges Use of Polygraph Exams For Sex Offenders on Parole

I've written before about what could be seen as an inconsistency in the American criminal justice system: Polygraph evidence is inadmissible to prove a defendant's innocence (or guilt) at trial, and yet such evidence is routinely admitted for other purposes, such as determining whether a convicted sex offender violated parole. Apparently, this inconsistency is not part of a potentially viable class action lawsuit in New Jersey.

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September 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Twitter Evidence in White House Shooting

This weekend's Washington Post had an eye opening story on a previously unreported shooting back in a 2011.  Among the revelations was that someone posted a tweet about the shooting at the time.  From the story:

A woman in a taxi stopped at a nearby stoplight immediately took to Twitter to describe the actions of “this crazy guy.”

“Driver in front of my cab, STOPPED and fired 5 gun shots at the White House,” she wrote, adding, “It took the police a while to respond.”

If the case had gone to trial (the shooter pleaded guilty), I wonder if this tweet would be admissible.  The caps could support an excited utterance.  Possibly also a present sense impression, although seems to be a significant time lag between the shooting portion of the tweet and the tweeting.

September 29, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, September 26, 2014

Disabling Condition: Should Evidence of Defendant's Disability be Admissible in Assault/Police Brutality Trial?

According to an article in the Lake Geneva News,

A man who is accused of attacking a police officer, but counters that he is the victim of police brutality, is set for his second jury trial next Monday.  

Daniel White, 42, of rural Elkhorn, faces three felony counts and a misdemeanor related to an incident in which his two pit bulls bit two deputies and he allegedly struck a deputy with his fist and a wood board.  

White, who walked in the courthouse with a cane and collects disability checks, contends that the officer knocked down his stockade fence, beat him up and lied to conceal their actions. 

Prior to trial, the prosecution asked the judge to (1) prohibit White's cane from being in the jury; and (2) to exclude evidence of White's disability. How should the judge rule?

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September 26, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 25, 2014

Large Houses of Stone: Northern District of Illinois Finds Statements Don't Qualify as Adoptive Admissions

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:....

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

So, what exactly does it take for a party to adopt another individual's statement under Rule 801(d)(2)(B) ? The recent opinion of the United States District Court for the Northern District of Illinois in United States v. Turner, 2014 WL 4699708 (N.D.Ill. 2014), does a better job than most at answering this question.

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

Wednesday, September 24, 2014

What Happens in the Jury Room, Take 2: Greg Kelley Denied a New Trial

Previously, I posed an entry about the Greg Kelley case, in which Kelley sought a new trial based upon one juror claiming that he wasn't convinced of Kelley's guilt and other jurors voting "guilty" to avoid sequestration. I predicted that the jurors would not be able to impeach their verdict pursuant to Texas Rule of Evidence 606(b), and, according to this story, that's exactly what happened.

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

Improper Relations, Take 2: Nebraska Court Finds Rape Shield Rule Applicable to Relationship Evidence

Yesterday, I posted an entry on this blog about State v. Lavalleur, 289 Neb. 102 (Neb. 2014), in which the Supreme Court of Nebraska found that the trial court erred in finding that evidence of a sexual assault victim's relationship with a third person was inadmissible under Nebraska's rape shield rule. According to the court, this relationship evidence was (1) beyond the scope of the rape shield rule because it was not evidence of "sexual behavior" or "sexual predisposition;" and (2) relevant because a person in a relationship with a third person has a motive to claim that her sexual act with someone else was nonconsensual as opposed to consensual. Today, let's look at the opinion of the Court of Appeals of Minnesota in State v. Kegg, 2014 WL 4671097 (Minn.App. 2014).

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September 24, 2014 | Permalink | Comments (1) | TrackBack (0)

Tuesday, September 23, 2014

Improper Relations?: Supreme Court of Nebraska Finds Rape Shield Rule Inapplicable to Relationship Evidence

Federal Rule of Evidence 412 provides in relevant part that

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:  

(1) evidence offered to prove that a victim engaged in other sexual behavior; or  

(2) evidence offered to prove a victim’s sexual predisposition.  

(b) Exceptions.  

(1) Criminal Cases. The court may admit the following evidence in a criminal case:  

(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;  

(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and  

(C) evidence whose exclusion would violate the defendant’s constitutional rights.

All states, including Nebraska and Minnesota, have state counterparts to this federal rape shield rule. And yet, in recent opinions issues mere days apart, courts in these states reached opposite conclusions in cases with very similar factual contexts. So, which court was right. Today, let's look at the case out of Nebraska.

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September 23, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, September 22, 2014

Time is Money: Eastern District of Pennsylvania Finds Evidence of Subsequent Remedial Measure Inadmissible Against Dollar General

Federal Rule of Evidence 407 provides that

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:  


•culpable conduct;

•a defect in a product or its design; or

•a need for a warning or instruction.

But the court may admit this evidence for another purpose, such as impeachment or — if disputed — proving ownership, control, or the feasibility of precautionary measures.

In McLeod v. Dollar General, 2014 WL 4634962 (E.D.Pa. 2014), the plaintiff sought to admit evidence of the defendant's subsequent remedial measures to impeach a witness. So, was he successful?

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September 22, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, September 19, 2014

Back to the Future: Court of Appeals of Texas Finds State of Mind Exception Inapplicable in Duress Case

Similar to its federal counterpartTexas Rule of Evidence 803(3) provides an exception to the rule of hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

As I always tell my students, Rule 803(3) covers statements concerning present feelings of future intentions but not past events. So where did that leave the defendant in Cogdill v. State, 2014 WL 4627579 (Tex.App.-San Antonio 2014)?

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September 19, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 18, 2014

Heat of the Moment: 8th Circuit Applies Rigorous Analysis to Excited Utterance Issue

Federal Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.

So, how does a court determine whether a statement was made while the declarant was under the stress of excitement caused by a startling event or condition? The recent opinion of the Eighth Circuit in United States v. Graves, 756 F.3d 602 (8th Cir. 2014), does a great job of breaking out this analysis.

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

Wednesday, September 17, 2014

Intrinsic Worth: Prior Sex Crimes by Boy Scout Leader Unlikely to be Deemed Intrinsic to Current Charges

According to an article on www.nj.com

Former Morris County Boy Scout leader Stephen Corcoran "groomed" three alleged victims by using pornography, alcohol and masturbation to make them feel "comfortable" performing sex acts with him, a Morris County assistant prosecutor argued today.

Assistant Prosecutor Meg Rodriguez made that argument in Superior Court in Morristown at the conclusion of a pre-trial hearing in which she sought permission to introduce evidence involving related crimes not at issue in the case.

According to Rodriguez,"[t]he lesser, uncharged crimes involving pornography, alcohol use and masturbation are 'intrinsic' to the case." Judge Robert Gilson responded that

he wasn't sure Rodriguez's argument exactly fit the rule of evidence she was citing, but he also told Gilbreth, "It's hard to imagine you'd have testimony about the offense without saying what led up to it."

So, what exactly does that mean?

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

Tuesday, September 16, 2014

Forfeit Loss: 9th Circuit Finally Decides Burden of Proof to Apply to Forfeiture by Wrongdoing

Federal Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

So, what burden of proof is required to trigger this doctrine of forfeiture by wrongdoing, and can that burden be satisfied through solely circumstantial evidence? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Johnson, 2013 WL 4473957 (9th Cir. 2014).

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September 16, 2014 | Permalink | Comments (0) | TrackBack (0)