EvidenceProf Blog

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

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Thursday, October 16, 2014

Free Shoes University?: Michael McCann & a Florida State Student Conduct Code Proceeding Against Jameis Winston

Sports Illustrated has a great piece by Michael McCann about what a student code of conduct hearing would look like for Heisman-winning quarterback Jameis Winston. I previously blogged about possible evidentiary issues at a potential criminal trial against Winston in this post. The gist of McCann's piece is that none of these evidentiary issues would arise at a student code of conduct hearing. Why?

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

Wednesday, October 15, 2014

Fixing Morton's Fork: Mississippi Courts and the Luce Preservation Rule

In its opinion in Luce v. United States, 469 U.S. 38 (1984), the Supreme Court held that if a trial court determines that the prosecution will be able to impeach a defendant through his prior convictions in the event that he testifies at trial, the defendant only preserves that issue for appeal if he testifies at trial. That said, many states have decided not to apply Luce in the strictest sense. For an example, consider the recent opinion of the Court of Appeals of Mississippi in Wallace v. State, 2014 WL 5137564 (Miss.App. 2014).

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October 15, 2014 | Permalink | Comments (1) | TrackBack (0)

Monday, October 13, 2014

Drugged Up?: Colorado Court of Appeals Deems Evidence From Drugs.Com Inadmissible Under Rule 803(17)

Similar to its federal counterpartColorado Rule of Evidence 803(17) provides an exception to the rule against hearsay for

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

As I have previously noted on this blog, and as the Colorado Court of Appeals noted in People v. Hard, 2014 WL 5033147 (Colo.App. 2014), this exception allows for the admission of things such as evidence from the Kelley Blue Book. But Hard didn't deal with evidence from the Kelley Blue Book. It dealt with evidence from Drugs.com.

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

Friday, October 10, 2014

The Set Up: Northern District of Illinois Finds Former Testimony Exception Applies in Malicious Prosecution Case

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony that:  

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and  

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

Last month, I posted an entry an entry about a case in which the Supreme Court of Ohio found that asbestos manufacturers were not predecessors in interest to H.J. Heinz Company in a case in which a Heinz employee first sued the manufacturers and then sued Heinz. Did the United States District Court for the Northern District of Illinois reach a similar conclusion in Fields v. City of Chicago, 2014 WL 477394 (N.D.Ill. 2014)?

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

Thursday, October 9, 2014

Selective Juroring: Supreme Court Hears Oral Argument on Jury Impeachment Case

Yesterday, Adam Liptak published the story, Justices Hear Case on Allowing Testimony by Jurors, in the New York Times. The story concerns the oral argument in Warger v. Shauers, the Supreme Court case addressing the following issue:

Whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

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.

Long-time readers of this blog will note that I've written on the issue several times, including in this post about the prosecution of actor Wesley Snipes.

In 2008, the Supreme Court of North Dakota was able to note in State v. Hidanovic, 747 N.W.2d 463, 474 (N.D. 2008), that "[c]ourts have universally held that provisions similar to N.D.R.Ev. 606(b)...do not preclude evidence to show a juror lied during voir dire." This, however, is no longer the case, and, if Liptak's article is any indication, the Justices of the Supreme Court seem ready to rule that Rule 606(b) precludes jurors from testifying concerning deliberations to prove that a juror lied during voir dire.


October 9, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 8, 2014

A Settlement Privilege?: Supreme Court of Appeals of West Virginia Finds Rule 408 Doesn't Create a Settlement Privilege

Similar to its federal counterpartWest Virginia Rule of Evidence 408(a) provides that

Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim, the liability of a party in a disputed claim, or to impeach by a prior inconsistent statement or a contradiction:

(1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or a statement made during compromise negotiations about the claim.

So, does Rule 408(a) create a settlement privilege, meaning that a party is not entitled to discovery regarding what happened during settlement negotiations? Let's take a look at the recent opinion of the Supreme Court of Appeals of West Virginia in State ex rel. City of Weirton v. Sims, 2014 WL 4746206 (West Va. 2014).

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October 8, 2014 | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 7, 2014

WikiTrial: Patent Trial and Appeal Board finds Wikipedia & Webopedia Entries Properly Authenticated In Patent Dispute

Federal Rule of Evidence 901(a) provides that

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

So, how does a party authenticate a web page purported to be from Wikipedia or Webopedia? Let's take a look at the recent opinion of the Patent Trial and Appeal Board in SAP America, Inc. v. Lakshmi Arunachalam.

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

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)