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.
Tuesday, October 15, 2013
The Areas of My Expertise: Eastern District of Louisiana Finds Expert Reports Inadmissible in False Arrest Case
Federal Rule of Evidence 704(a) provides that "[a]n opinion is not objectionable just because it embraces an ultimate issue." That said, "[t]his rule does not...permit an expert to render conclusions of law." So, let's say that a plaintiff files a complaint alleging claims of excessive force, false arrest, and state law negligence in connection with his arrest. Can an expert in police procedures testify as to whether he believes that the plaintiff's arrest was based upon probable cause? Let's take a look at the recent opinion of the United States District Court for the Eastern District of Louisiana in Cefalu v. Edwards, 2013 WL 5592947 (E.D.La. 2013).
Monday, October 14, 2013
This article in the NY Times chronicles Oakland's efforts to use technology to improve law enforcement intelligence gathering. The article, like virtually all media coverage of this topic, focuses on the privacy implications of gathering the data. Another angle, as hinted at by the paragraph excerpted below, has to do with the availability of all of the gathered information as evidence:
“For law enforcement, data mining is a big step toward more complete intelligence gathering. The police have traditionally made arrests based on small bits of data — witness testimony, logs of license plate readers, footage from a surveillance camera perched above a bank machine. The new capacity to collect and sift through all that information gives the authorities a much broader view of the people they are investigating.”
Facebook Status: Spoliated -- New Jersey Court Finds Deactivation of Facebook Account Was Spoliation of Evidence
A few days ago, my colleague, Marcia Yablon-Zug, asked me a question to which I didn't know the answer: What happens if a litigant deactivates his Facebook account because of some combination of items on it that could be embarrassing, both litigation-wise and personally. Of course, a good deal likely depends on the exact nature of the lawsuit and the precise nature of what was on the litigant's Facebook page. But, as the recent opinion of the United States District Court for the District of New Jersey in Gatto v. United Air Lines, Inc., 2013 WL 1285285 (D.N.J. 2013), makes clear, the litigant could be guilty of spoliation of evidence, allowing for the giving of an adverse inference instruction.
Friday, October 11, 2013
Here's an interesting article dealing with the intersection between the federal shutdown and the rules of evidence. It is written by Howard Altschule, the owner of Forensic Weather Consultants, a forensic weather consulting firm that provides past weather records, analyses and reports to those who need it. So, who needs it? According to the article,
When forensic meteorologists provide official weather records and affidavits to our legal clients, they are often used to file motions and other documents with courts. In some cases, attorneys discover that their client may not have had any liability when an accident occurred, such as if someone fell on ice while an ice storm was in progress. In some of these cases, the attorney often files a Motion with the court to dismiss a case. In New York State courts, the rules of evidence are such that weather records must be “certified” in order to be admissible as evidence to the court. Because of the federal shutdown, there is nobody at the [National Climatic Data Center] to answer the phone, process the orders or certify weather records. If there really is merit for a judge to dismiss a case, will the judge still dismiss the case if no certified weather records were submitted or will the judge accept the non-certified copies? Many courts have denied these kinds of motions in the past when some professionals failed to obtain certified weather records, instead relying on the same records in non-certified format.
Now, New York doesn't have codified rules of evidence, but what they do apply in court is basically a version of Federal Rule of Evidence 902(4), which allows for the self-authentication of
(4) Certified Copies of Public Records. A copy of an official record — or a copy of a document that was recorded or filed in a public office as authorized by law — if the copy is certified as correct by:
(A) the custodian or another person authorized to make the certification; or
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
Thursday, October 10, 2013
Stand in the Place Where You Live, Take 2: SC Stand Your Ground Law Applied in Innocent Bystander Case
I have written a few times about South Carolina's Stand Your Ground Law, also known as the Protection of Persons and Property Act. Today, that Act immunized a defendant from prosecution for
the 2010 shooting of Darrell Niles, 17, a Keenan High School student and basketball player, who was across the street in a car when Shannon Scott, then 33, fired his handgun. Shortly before, an SUV filled with youths who had been threatening his 15-year-old daughter drove by his house and they fired shots, according to testimony in the case.
Smith then saw Niles’ 1992 Honda, and, believing its occupants posed a danger, fired his gun from his front yard across the street, hitting Niles in the head with a .380 bullet, killing him instantly. No evidence indicated Niles was a threat to Scott or his daughter.
Why was this the outcome? Well, let's look at the key provisions of the the Protection of Persons and Property Act.
Wednesday, October 9, 2013
Indiana Rule of Evidence 404 reads as follows:
(a) Character Evidence Generally. Evidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
(1) Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same;
(2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
(b) Other Crimes, Wrongs, or Acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pre-trial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
So, let's say that a husband is on trial for his wife's murder and that "when her body was discovered, her pants were pulled down, her shoes were off, and her feet were bruised." Under any of the above character evidence rules, should the defendant be able to present evidence that an alleged alternate suspect had “four felony convictions for robbery in which women's shoes were the target and that [the alternate suspect had] an admitted foot fetish and shoe fetish?” According to the Supreme Court of Indiana in Camm v. State, 908 N.E.2d 215 (Ind. 2009), the answer is "no."
Tuesday, October 8, 2013
Today, I posted my new essay, No Explanation Required?: A Reply to Jeffrey Bellin's eHearsay, on SSRN. The essay is a solicited response to eHearsay, by co-blogger Jeff Bellin. Here is the abstract:
You see why I tell you I ain’t want to be no damn juror. Some dude just come by my house and tell me he going pay me money to say not guilty. Now I don’t know what to do, because if I tell the judge they’re going to know it’s me.
I know, right. Now I scared because I don’t want them to do anything to me or [my daughter][. . .] * * *
The above were text messages sent by a juror to her sister after Ikim Blackett allegedly threatened and then tried to bribe her in an attempt to convince her to find one of several defendants “not guilty” of various drug crimes. At Blackett’s ensuing trial for jury bribery, the juror testified that, while she was on her front porch, Blackett approached her and mentioned the word “nitroglycerin.” The juror then “asked Blackett what ‘nitroglycerin’ meant and he responded ‘not guilty.’” When this threat fell on deaf ears, Blackett offered the juror $1,500 in exchange for her vote. After again declining, the juror went to her bedroom and sent the above text messages.
Should the text messages have been admissible because the juror took the witness stand and testified at trial? If the juror were “unavailable” at trial, should the text messages have been admissible? According to Professor Jeffrey Bellin’s article, eHearsay, the answer to both questions is “yes” as he crafts hearsay rules that cover both situations. This paper agrees with Professor Bellin on the first question but disagrees with him on the second.
Monday, October 7, 2013
I’ve previously stated my enthusiasm for the problem-based approach to teaching evidence. Embracing the use of problems necessarily means that my students are not reading a lot of cases. Indeed, the textbook that I use has only a few case excerpts that are longer than a paragraph, and does not contain a single case that is reproduced in its entirety. Despite my preference for using problems, I recognize that there are drawbacks to not assigning cases for reading. In this post, therefore, I want to push back against myself a bit and make the case for using judicial opinions in Evidence class.
First, though, a few brief thoughts on what I like about problems. One distinct advantage is that problems are shorter than judicial opinions. Instead of procedural history, or factual recitations, or statements of the governing law, problems get right to work, providing students with all the information that I want them to have in order to focus their attention on the things I want them to focus on (and nothing more). It’s much cleaner to have a crafted problem that is one paragraph long than it is to have a 2 page case that includes facts that aren’t relevant or important to the rule that the case discusses. Another advantage is that I craft problems that allow me to change the facts very easily to illustrate the critical elements and nuances of a particular rule’s application. With cases, the fact set-up is often messier, and it can be harder to offer simple factual adjustments that might change the result or bring into play a particular foundational element of hearsay exception. Finally, presenting the students with problems, instead of cases, allows me to treat the material as a puzzle to be solved (as compared to judicial opinions, which are puzzles already solved).
Friday, October 4, 2013
Federal Rule of Evidence 702 provides that
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
So, how is a federal judge to determine whether a witness is qualified to give expert opinion testimony at a trial? In its opinion in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Supreme Court enumerated several factors the district court may use to assess the reliability of proffered scientific testimony, including:
(1) whether the theory or technique can be (and has been) tested, (2) whether the theory or technique has been subjected to peer review and publication, (3) in the case of a particular scientific technique, the known or potential rate of error, and (4) whether the theory or technique is generally accepted by the relevant scientific community.
So, where did that leave the plaintiffs in Cooper v. Marten Transport, Ltd., 2013 WL 5381152 (11th Cir. 2013)?
Thursday, October 3, 2013
Absence of Malice?: Federal Circuit Finds Lack of Records of Military Rapes Inadmissible to Prove Their Nonoccurrence
Federal Rule of Evidence 803(7) provides an exception to the rule against hearsay for
Evidence that a matter is not included in a record described in paragraph (6) [the business records exception] if:
(A) the evidence is admitted to prove that the matter did not occur or exist;
(B) a record was regularly kept for a matter of that kind; and
(C) neither the possible source of the information nor other circumstances indicate a lack of trustworthiness.
So, would this rule allow for the admission of evidence that there were no service records of two veterans being sexually assaulted? That was the question addressed by the Court of Appeals for the Federal Circuit in its recent opinion in AZ v. Shinskei, 2013 WL 5420978 (Fed. Cir. 2013).
Wednesday, October 2, 2013
Federal Rule of Evidence 404(a)(2)(A) provides that
a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it....
Under this "mercy rule," then, a criminal defendant can present evidence has his good character for a pertinent character trait. But if the trial court errs in excluding such evidence, is the defendant entitled to a reversal? That was the question addressed by the Fifth Circuit in its recent opinion in United States v. DeLeon, 2013 WL 4606580 (5th Cir. 2013).
Tuesday, October 1, 2013
Federal Rule of Evidence 803(8) provides an exception to the rule against hearsay for
A record or statement of a public office if:
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.
So, assume that a public report is accompanied by the following statement in its cover letter:
In order to avoid further delay of the release of this report, members of the IWG did not seek unanimous agreement on a single “official” version of their declassification effort. Instead, this report presents the larger issues that arose while affording participants an opportunity to present personal or institutional perspectives on issues important to them and to those whom they represent. These appear in a separate chapter at the end of the report....
Would such a statement render the public report inadmissible because it tends to indicate "lack of trustworthiness" under Rule 803(8)(B)? That was the question addressed by the United States District Court for the District of Columbia in its recent opinion in DiBacco v. U.S. Department of the Army, 2013 WL 5377060 (D.D.C. 2013).
Monday, September 30, 2013
Unlike most evidence law teachers, especially those who have taught in multiple states, my entire teaching career thus far has been in states without comprehensive evidence codes. Specifically, I began teaching in New York (Brooklyn Law School) and now teach in Missouri (University of Missouri).
The overwhelming majority of states have adopted rules modeled on the Federal Rules of Evidence; Illinois and Georgia became states #43 and #44 in recent years. Even certain of the holdouts eschewing FRE-style rules have some kind of evidence code. For example, California has a robust evidence code organized differently from the FRE. But not New York, and not Missouri.
New York and Missouri of course have rules of evidence. But they don't have Rules of Evidence. In other words, New York courts apply the hearsay rule (along with many exceptions to it), but one cannot find a New York equivalent of Rule 801. One must turn instead to court opinions, treatises, and other summaries of the law. See, for example, this guide to New York evidence law by Prof. Travis H.D. Lewin of Syracuse. Similarly, the Missouri Bar publishes an "Evidence Guide" that summarizes the state's evidence law.
My question today is: Are Missouri and New York missing out?
My co-author Andrew Ferguson (University of the District of Columbia - David A. Clarke School of Law) and I have posted a draft of our forthcoming article, Trial by Google: Judicial Notice in the Information Age, on SSRN. It is available here. Comments and suggestions are welcome.
The article explores the emerging phenomenon of courts taking judicial notice of facts gleaned from Internet web sites, like Google Maps. It highlights the inviting and terrifying intersection of venerable judicial notice doctrine and the Internet, and ultimately suggests guidelines for courts applying Federal Rule of Evidence 201 (Judicial Notice) and state analogues to Internet sources.
Here is the abstract:
This Article presents a theory of judicial notice for the information age. It argues that the ease of accessing factual data on the Internet allows judges and litigants to expand the use of judicial notice in ways that raise significant concerns about admissibility, reliability, and fair process. State and federal courts are already applying the surprisingly pliant judicial notice rules to bring websites ranging from Google Maps to Wikipedia into the courtroom, and these decisions will only increase in frequency in coming years. This rapidly emerging judicial phenomenon is notable for its ad hoc and conclusory nature – attributes that have the potential to undermine the integrity of the factfinding process. The theory proposed here, which is the first attempt to conceptualize judicial notice in the information age, remedies these potential failings by setting forth both an analytical framework for decision, as well as a process for how courts should memorialize rulings on the propriety of taking judicial notice of Internet sources to allow meaningful review.
Friday, September 27, 2013
Illinois Rule of Evidence 201(b) states that
A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.
Meanwhile, Illinois Rule of Evidence 201(g) provides that
In a civil action or proceeding, the court shall inform the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall inform the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
The limiting instruction at the end of Rule 201(g) is thought to be necessary to safeguard a criminal defendant's Sixth Amendment right to trial by jury. So, what should happen when such an instruction is not given? Let's take a look at the recent opinion of the Appellate Court of Illinois, Third District in People v. Love, 2013 WL 5332141 (Ill.App. 3 Dist. 2013).
Thursday, September 26, 2013
The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.
I'm not sure how Rule 1006 could be read as anything other than a requirement that a party seeking to introduce charts, summaries, or calculations must make the originals or duplicates available for examination, copying, or both by other parties. So, how did the Court of Appeals of Mississippi disagree with me in Gardner v. Gardner, 2013 WL WL 5313142 (Miss.App. 2013)?