EvidenceProf Blog

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

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Monday, September 8, 2014

Unimpeachable: Ohio Court Finds Dismissed Domestic Violence Charges Inadmissible Under Rule 608(b)

Similar to its federal counterpartOhio Rule of Evidence 608(B) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than conviction of crime as provided in Evid. R. 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if clearly probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness's character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

So, let's say that a defendant is charged with violating a protective order in large part based upon the testimony of the person protected under the order. And let's say that the alleged victim had previously made allegations of domestic violence against the defendant, with those allegations later being dismissed. Should evidence of these dismissals be admissible under Ohio Rule of Evidence 608(B)? Let's take a look at the recent opinion of the Court of Appeals of Ohio, Second District in State v. Hunt, 2014 WL 4384140 (Ohio.App. 2 Dist. 2014).

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

Sunday, September 7, 2014

McDonnell Verdicts

For those interested, here is a link to my op-ed in today's Washington Post on the public corruption convictions of the former Virginia governor.

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

Friday, September 5, 2014

On Balance: 2nd Circuit Finds Child Molestation Evidence Presumptively Admissible Under Rule 403

Federal Rule of Evidence 414(a) provides that

In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.

Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994 to increase the likelihood of sexual offense convictions, the Rule was accompanied by the was accompanied by the following statement from its sponsors:

The presumption is that the evidence admissible pursuant to these rules is typically relevant and probative, and that its probative value is not outweighed by any risk of prejudice.

Given this statement, some courts conclude that evidence admissible under Rule 414(a) (as well as Rules 413(a) and 415(a)) should almost never be excluded under Federal Rule of Evidence 403 while other courts conduct an independent Rule 403 analysis and determine whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. So, where does the Second Circuit stand on the issue?

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September 5, 2014 | Permalink | Comments (0) | TrackBack (0)

Thursday, September 4, 2014

Crossing Over: California Court Cites Me in Upholding Decision to Preclude Cross-X Regarding Immigration Status

Back in 2010, I published the essay, Crossing Over: Why Attorneys (and Judges) Should Not be Able to Cross-Examine Witnesses Regarding Their Immigration Statuses for Impeachment Purposes, in the Northwestern University Law Review Colloquy. Today, it was nice to see that an appellate court used it to support its decision. Let's take a look at People v. Smith, 2014 WL 3752105 (Cal.App. 4 Dist. 2014).

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September 4, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, September 3, 2014

Informer, You Know Say: Delaware Court Finds Exception to Informant Privilege Not Triggered

Delaware Rule of Evidence 509(a) states that

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law-enforcement officer or member of a legislative committee or its staff conducting an investigation.

That said, Delaware Rule of Evidence 509(c) allows for this informant privilege to be pierced

If it appears ... that an informer may be able to give testimony which would materially aid the defense.

So, how does a court determine whether the privilege is pierced in practice? Let's take a look at the recent opinion of the Superior Court of Delaware in State v. Johnson, 2014 WL 3943103 (Del.Super. 2014).

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

Tuesday, September 2, 2014

Dying Words: Supreme Judicial Court of Massachusetts Declines To Adopt "No Hope" Test For Dying Declarations

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay 

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

Massachusetts does not have codified rules of evidence, but it does have an Evidence Guide, and Section 804(b)(2) of that guide contains a similar exception:

In a prosecution for homicide, a statement made by a declarant-victim under the belief of imminent death and who died shortly after making the statement, concerning the cause or circumstances of what the declarant believed to be the declarant's own impending death or that of a co-victim.

As the language makes clear, Massachusetts seemingly deviates from federal law in two regards: (1) its dying declarations exception does not apply in civil cases; (2) its dying declarations exception does apply to statements regarding the cause of the imminent death of the declarant's co-victim. The recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Gonzalez, 469 Mass. 410 (Mass. 2014), doesn't deal with either of these deviations, but it does deal with the question of when a declarant believes his death to be imminent.

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

Monday, September 1, 2014

Liar, Liar: Supreme Court of Missouri Deems Polygraph Evidence Admissible to Prove Defendant Was Lying...Indirectly

Under Missouri law, it is well established that "[t]he results of a polygraph examination generally are inadmissible in Missouri criminal trials. Even the fact that a defendant took, refused to take, or was willing to take a polygraph is inadmissible." State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49 (Mo. banc 2006). And yet, the prosecution was allowed to make reference to the defendant taking a polygraph exam in State v. Collings, 2014 WL 4086313 (Mo. 2014). Why?

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

Friday, August 29, 2014

Did You Notice That?: 2nd Circuit Excuses Lack of Written Notice Under Rule 902(11)

Federal Rule of Evidence 902(11) allows for the self-authentication of

The original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a rule prescribed by the Supreme Court. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record — and must make the record and certification available for inspection — so that the party has a fair opportunity to challenge them.

So, what happens if a party does not give reasonable written notice of its intent to offer a business record into evidence but there is evidence that the opposing party had actual notice of this intent? That was the question addressed by the Second Circuit in its recent opinion in United States v. Komasa, 2014 WL 4233396 (2nd Cir. 2014).

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

Thursday, August 28, 2014

Where the Truth Lies, Take 2: Florida Defendant Offered Deal: Pass Polygraph, Charges Dropped; Fail Polygraph, Results Admissible

You are charged with murder, and the prosecutor offers you a deal. You take a polygraph test. If you "pass" the polygraph test, the charges against you will drop. If you "fail" the polygraph test, the case will proceed to trial, and the polygraph results will be admissible against you. Would you take the deal? Should the prosecutor be allowed to offer such a deal? Let's take a look at a case out of Coral Springs, Florida.

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August 28, 2014 | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 27, 2014

Where the Truth Lies: Appellate Court of Illinois Allows Polygraph Evidence to Rebut Coercion Claim

It is well established that (except in New Mexico), polygraph evidence is generally admissible. But assume that a defendant fails a polygraph exam and then makes a confession. And assume that the defendant claims at trial that he confessed based upon threats as well as promises of lenient treatment by the prosecutor. Should the prosecution be able to rebut such a claim by making reference to the polygraph exam? That was the question addressed by the recent opinion of the Appellate Court of Illinois, First Division, in its recent opinion in People v. Gater, 2014 IL App (1st) 101982-U (2014).

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August 27, 2014 | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 26, 2014

Article of Interest: Kenneth Klein on Hillman

Kenneth S. Klein of California Western School of Law recently posted:

The Enduring Quality of an Alluring Mistake: Why One Person's Intentions Cannot -- And Never Could -- Be Evidence of Another Person's Conduct

on SSRN (click the title to go to the abstract).  The piece adroitly breaks down the epic case of Mutual Life Ins. Co. v. Hillmon, arguing that an analytical error in the 1892 case still reverberates in FRE 803(3) rulings today.  Worth reading for those interested in this familiar dilemma. 

An ancillary point -- Klein references four law review articles dedicated to early criticism of the Hillmon case (spanning 1893 to 1955).  Three of the four appeared in the Harvard Law Review -- the fourth "fell" to Virginia.  Hard to imagine a time when doctrinal Evidence scholarship was jumping out of the HLR submission pile!

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

P.I.M.P.: Court of Appeals of Ohio Approves of Demeanor Testimony in Prostitution Trial

It is well established that a witness may not take the witness stand and testify that another witness appeared to be credible or incredible while testifying at trial. So, for instance, a deception expert could not take the witness stand after the defendant testifies and claim that based upon microexpressions, etc., the defendant appeared to be lying (or telling the truth). But can a witness take the stand and testify regarding the demeanor of a prior witness when she took the stand? That was the question addressed by the Court of Appeals of Ohio, Sixth District, in its recent opinion in State v. Donaldson, 2014 WL WL 4160799 (Ohio.App.6th 2014).

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August 26, 2014 | Permalink | Comments (4) | TrackBack (0)

Monday, August 25, 2014

Expertly Executed: Court of Appeals of Kentucky Opinion Fills Rule 615(3) Void in the Bluegrass State

Similar to its federal counterpartKentucky Rule of Evidence 615 provides that

At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order on its own motion. This rule does not authorize exclusion of:

(1) A party who is a natural person;

(2) An officer or employee of a party which is not a natural person designated as its representative by its attorney; or

(3) A person whose presence is shown by a party to be essential to the presentation of the party's cause.

As the Court of Appeals of Kentucky noted in its recent opinion in McAbee v. Chapman, 2014 WL 4115907 (Ky. 2014), "[o]ur Supreme Court has not spoken in detail regarding the application of KRE 615(3). SO, how did the court rule in Chapman?

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

Friday, August 22, 2014

What Happens in the Jury Room: Convicted Texas Defendant Seeks to Impeach Jury's Verdict

According to an article in the Hill Country News,

Greg Kelley’s new defense attorney Keith Hampton filed a motion for a new trial last week that says the 19-year-old former Leander High School football player was denied a fair trial "because 12 jurors never concluded he was guilty beyond a reasonable doubt."


According to a sworn affidavit filed with the motion for a new trial, one of the jurors who convicted Kelley states that, "I thought the prosecution’s case against Greg Kelley was trash… I was not persuaded Greg Kelley was guilty beyond a reasonable doubt."

Speaking to the media outside the Williamson County Courthouse last Wednesday morning, Jake Brydon — one of Kelley’s most vocal supporters —said that some of the jurors simply went along with the others in voting for conviction to avoid being sequestered. Brydon said the juror’s affidavit states that the jurors who did vote to convict Kelley did so not because of reasons of evidence or proof demonstrated in court, but because of Kelley’s mannerisms or how his defense attorney presented herself.

So, how likely is it that Kelley will be successful? Not very.

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

Thursday, August 21, 2014

Apples to Apples?: Court of Appeals of South Carolina Deems Prior Act Evidence Admissible in Lewd Act Prosecution

Similar to its federal counterpartSouth Carolina Rule of Evidence 404(b) provides that

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 to show motive, identity, the existence of a common scheme or plan, the absence of mistake or accident, or intent.

So, how does a court go about determining whether evidence that "may" be admissible under this Rule should in fact be admitted? Let's take a look at the recent opinion of the Court of Appeals of South Carolina in State v. McCombs, 2014 WL 4087913 (S.C.App. 2014).

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August 21, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 20, 2014

Thicker Than Water: 9th Circuit Finds Brother's Statement Inadmissible as Statement Against Interest

Federal Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement that:  

(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against someone else or to expose the declarant to civil or criminal liability; and  

(B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Basically, while most hearsay is deemed unreliable and inadmissible, statements against interest can be reliable and inadmissible under the theory that an innocent man wouldn't generally say that he sold drugs or robbed a bank. What happens, however, when such a statement comes from the father, brother, or mother of a man charged with selling drugs or robbing a bank? That was the question addressed by the Ninth Circuit in its recent opinion in United States v. Gadson, 2014 WL 4067203 (9th Cir. 2014).

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

Tuesday, August 19, 2014

Inextricably Intertwined: Why Michael Brown's Strong Arm Robbery Would Likely be Admissible at a Trial Against Darren Wilson

Ken White has written an interesting post at Popehat and Paul Cassell has written an interesting post at The Volokh Conspiracy addressing the issue of whether the alleged strong arm robbery allegedly committed by Michael Brown before his fatal encounter with Ferguson Police Officer Darren Wilson would be admissible at trial. White cites to Federal Rule of Evidence 404(b), which allows for the admission of other crimes, wrongs, or other acts to prove permissible purposes such as motive and intent. Ultimately, however, White says that the admissibility of the strong arm robbery is a coin flip decision because the judge could still exclude such evidence under Federal Rule of Evidence 403, which allows a judge to exclude evidence if its probative value is substantially outweighed by dangers such as the danger of unfair prejudice.

Cassell, meanwhile, thinks that Rule 403 is less of an impediment to admissibility given the strong(ish) probative value of the prior crime. He also cites to Federal Rule of Evidence 404(a)(2)(B), which allows the defendant to present evidence of the victim's character for a pertinent trait. It is important to note, though, that this Rule would only apply in a criminal case and that, pursuant to Federal Rule of Evidence 405(a), it would only allow for the admission (on direct examination) of opinion and reputation testimony, not specific act testimony.

The focus of both of the aforementioned posts is on the admissibility of such evidence at a case governed by the Federal Rules of Evidence, and I think that I have one major thing to add to the dialogue. I also thought that I would add to the discourse by posting about admissibility under the Missouri Rules of Evidence. But here's the thing: There are no Missouri Rules of Evidence.


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August 19, 2014 | Permalink | Comments (6) | TrackBack (0)

Monday, August 18, 2014

A Rare Federal Opinion that Gets, Really Gets, Rule 609

Federal Rule of Evidence 609 governs the admissibility of criminal convictions to impeach witness credibility.  In a 2008 article, I criticized how the federal courts apply this rule, arguing that because of a widely adopted, often misapplied, and partially incoherent multi-factor framework, courts were letting too many defendants' convictions be used as impeachment.  As I argued, if courts simply jettisoned the framework and did what the rule commanded – weigh probative value against prejudicial effect – exclusion would become the norm as intended.  Apart from getting the law right, this would have an additional benefit of generating more defendant testimony.  (Defendants generally decline to testify once a judge rules that their record comes in if they do.)  I don’t know how anyone can get behind a system where the person the jury most wants to hear from and who wants to tell his story sits silently at counsel table to keep the jury from hearing about his criminal record.

My arguments made little headway over the years and defendants’ convictions continue to be routinely admitted, but recently the Third Circuit cited my piece (along with criticism of others) in what may be one of the first signs of judicial dissatisfaction with the multi-factored balancing test.  The court also used/endorsed language rarely seen in published opinions that, in my view, gets the tone of Rule 609 right.

Commentators have observed that structuring the balancing in this manner creates a “predisposition toward exclusion.” Wright & Gold, Federal Practice and Procedure § 6132, at 216.  “An exception is made only where the prosecution shows that the evidence makes a tangible contribution to the evaluation of credibility and that the usual high risk of unfair prejudice is not present.”Id.  § 6132, at 217.

U.S. v. Caldwell, -- F.3d -- (3d Cir. 2014)

Expect to see this language in lots of defense filings going forward and join with me in hoping that the courts are finally awakening to the unmitigated disaster that is the multi-factored Rule 609 balancing test.

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

Caller ID: Court of Appeals of Ohio Finds Proper Authentication of Phone Calls in Drug Case

Similar to its federal counterpartOhio Rule of Evidence 901(B)(6) allows for authentication of

Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (a) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (b) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone.

It's important to note, however, that Rule 901(B)(6) is a fallback provision, as is demonstrated by the recent opinion of the Court of Appeals of Ohio, Second District, in State v. Burton, 2014 WL 4049820 (Ohio App. 2 Dist. 2014).

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

Friday, August 15, 2014

Open File: Assessing Texas' Michael Morton Act

An article from kvue.com notes

that the Williamson County Attorney's office now processes four times more digital evidence than it did a year ago. It's doing so along with every county in Texas to comply with the Michael Morton Act, which requires prosecutors to turn over all evidence collected by law enforcement.

So, what exactly is Texas' Michael Morton Act, and why was it passed?

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August 15, 2014 | Permalink | Comments (0) | TrackBack (0)