Friday, January 24, 2014
In Order Categorical: 7th Circuit Rejects Categorical Approach to Defining "Sexual Assault" Under Rule 413
Federal Rule of Evidence 413(a) provides that
In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant.
Moreover, Federal Rule of Evidence 413(d) indicates that
In this rule and Rule 415, “sexual assault” means a crime under federal law or under state law (as “state” is defined in 18 U.S.C. § 513) involving:
(1) any conduct prohibited by 18 U.S.C. chapter 109A;
(2) contact, without consent, between any part of the defendant’s body — or an object — and another person’s genitals or anus;
(3) contact, without consent, between the defendant’s genitals or anus and any part of another person’s body;
(4) deriving sexual pleasure or gratification from inflicting death, bodily injury, or physical pain on another person; or
(5) an attempt or conspiracy to engage in conduct described in subparagraphs (1)–(4).
Usually, it is clear whether the charges against the defendant satisfy (or don't satisfy) the Rule 413(d) test. In United States v. Foley, 2014 WL 228686 (7th Cir. 2014), however, the defendant used an interesting analogy to claim that such clarity was lacking. But was he successful?
Thursday, January 23, 2014
Federal Rule of Evidence 901(b)(1) allows for authentication through
Testimony that an item is what it is claimed to be.
In the case of photographs, what this means is that there can be authentication by anyone with personal knowledge of the location/object that was photographed. For an example, consider the following hypothetical:
Hypothetical: Bryan Hooper slips and falls in the lobby of a Marriott Courtyard hotel in Cleveland. Hooper sues the hotel for negligence, and the hotel seeks to introduce a photograph of the lobby from after the accident. Marriott does not call the photographer but instead has Shane Frownfelter, the manager of the Marriott, testify “that the photo reflected how the mats would have been at the time of the incident based upon his presence at the scene.” Was there proper authentication? See Hooper v. Marriott Intern., Inc., 2013 WL 5786294 (N.D.Tex. 2013).
The answer, of course, is "yes."
Wednesday, January 22, 2014
Federal Rule of Evidence 410(a)(2) provides that
In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions:....
(2) a nolo contendere plea
That said, some courts have held that Rule 410(a)(2) does not apply when the person entering the nolo contendere plea later becomes a civil plaintiff. This issue was the subject of my article, The Best Offense is a Good Defense: Why Criminal Defendants' Nolo Contendere Pleas Should be Inadmissible Against Them When They Become Civil Plaintiffs. It was also the subject of the recent opinion of the Third Circuit in Sharif v. Picone, 2014 WL 211805 (3rd Cir. 2014).
Tuesday, January 21, 2014
Ugly Can be Inadmissible: 1st Circuit Finds Evidence of New Hangtag Inadmissible in Escalator Injury Case
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 some cases, however, it is so clear that evidence of a subsequent remedial measure is lacking in any probative value that a court does not even need to apply Rule 407. This was the case in Geshke v. Crocs, Inc., 2014 WL 185538 (1st Cir. 2014).
Monday, January 20, 2014
Federal Rule of Evidence 902(3) allows for the self-authentication of
A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester — or of any foreign official whose certificate of genuineness relates to the signature or attestation or is in a chain of certificates of genuineness relating to the signature or attestation. The certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic or consular official of the foreign country assigned or accredited to the United States. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; or
(B) allow it to be evidenced by an attested summary with or without final certification.
That's a lot of language, and the recent opinion of the Eleventh Circuit in United States v. McGowan, 2014 WL 184471 (11th Cir. 2014), does a good job of unpacking it.
Sunday, January 19, 2014
A Missouri judge recently granted a new trial to a civil plaintiff who produced post-verdict evidence of juror misconduct. The case, Amrine v. Ossman (Cole County Circuit Court), concerns a malpractice allegation brought by a former death row inmate who was freed in 2003 after the Supreme Court of Missouri found "clear and convincing evidence of actual innocence that undermines confidence" in Amrine's guilt. Now Amrine alleges that counsel at his murder case committed malpratice. In 2012, a jury found for Ossman, the retired public defender being sued by his former client. Then Amrine's lawyers moved for a new trial, alleging (among other things) that a white juror had said during deliberations that he would not give Amrine anything and that he referred to Amrine (who is black) by a racial slur. Counsel for Ossman offered evidence in rebuttal that the alleged racist remark was never made. Finding the denials by the alleged racist juror not credible, and deeming that the racist remark showed "unrestrained racial bias," the judge ordered a new trial, which is set for February 2014.
Because the trial took place in Missouri state court, the plaintiff's post-verdict evidence of juror racial bias was admissible under the rule of Fleshner v. Pepose Vision Institute, 304 S.W. 3d 81 (Mo. 2010). Under the federal rules (and similar ones adopted in most states), the admissibility would not be so clear.
Friday, January 17, 2014
Dead Man's Statutes generally preclude interested parties from testifying about any communication, transaction, or promise made to them by a now deceased or incapacitated person when the testimony would go against the decedent's estate. The theory behind these statutes is that the interested person has reason to fabricate his testimony and the deceased/incapacitated person does not have the ability to dispute the testimony and protect his estate from false claims. Thus, for instance, a person who sought to testify that a now deceased individual promised to give him his car would not be allowed to do so because of the fear that his testimony would consist of perjury.
Most states have gotten rid of their Dead Man's Statutes, but, as is made clear by In re Estate of Smith, 2014 WL 47378 (Ariz.App. Div. 1 2014), Arizona still has such a statute...but it is discretionary.
Thursday, January 16, 2014
Federal Rule of Evidence 902(9) allows for the self-authentication of
Commercial paper, a signature on it, and related documents, to the extent allowed by general commercial law.
I haven't yet had the chance to address Rule 902(9) on this blog, but the recent opinion of the United States District Court for the Eastern District of Wisconsin in Ocwen Loan Servicing, LLC v. Thompson, 2014 WL 51236 (E.D.Wis. 2014), gives me the opportunity. But I'm not sure that the court got it right.
Wednesday, January 15, 2014
Permanent Record: Court of Appeals of Arizona Rejects Authentication Challenge to Uncertified Copies
Similar to their federal counterparts, Arizona Rule of Evidence 902(1) allows for the self-authentication of "Domestic Public Documents That Are Sealed and Signed" while Arizona Rule of Evidence 902(2) allows for the self-authentication of "Domestic Public Documents That Are Not Sealed but Are Signed and Certified." Meanwhile, like its federal counterpart, Arizona Rule of Evidence 901(b)(7) allows for authentication through the following method:
(7) Evidence About Public Records. Evidence that:
(A) a document was recorded or filed in a public office as authorized by law; or
(B) a purported public record or statement is from the office where items of this kind are kept.
So, what's the interplay among these Rules? Consider the recent opinion of the Court of Appeals of Arizona, Division One, in State v. McGuire, 2014 WL 50654 (Ariz.App. Div. 1 2014).
Monday, January 13, 2014
Credibility Gap: Northern District of Illinois Finds Train Video Properly Authenticated Under Rule 901(b)(1)
Federal Rule of Evidence 901(b)(1) allows for authentication through
(1) Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.
What this means is that a witness with personal knowledge may authenticate an exhibit. But what if said witness is wholly lacking in credibility? That was the question addressed by the United States District Court for the Northern District of Illinois in its recent opinion in Jones v. Union Pacific Railroad Company, 2014 WL 37843 (N.D.Ill. 2014).
Friday, January 10, 2014
You've Got Mail: Court of Appeals of Texas Finds Alleged E-Mail From Victim's Mother Improperly Authenticated
The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.
So, assume that a party seeks to authenticate an e-mail as an e-mail written by a certain person. Will evidence that the e-mail appeared to come from an e-mail address belonging to the alleged drafter typically be enough to authenticate the e-mail? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Chin v. State, 2013 WL 6869905 (Tex.App.-San Antonio 2013), the answer is "no."
Thursday, January 9, 2014
As I wrote in my essay, Bullshit!: Why the Retroactive Application of Federal Rules of Evidence 413-414 and State Counterparts Violates the Ex Post Facto Clause, Nebraska recently enacted state counterparts to Federal Rules of Evidence 413-415. These Rules reverse the traditional presumption that propensity character evidence is inadmissible and allow for the admission of prior acts of sexual assault and child molestation in cases involving alleged sexual misconduct. Since the passage of Federal Rules of Evidence 413-415, at least eleven states has enacted state counterpart. But there are apparently differences among these state counterparts, which is made clear by legislation currently pending in Nebraska.
Wednesday, January 8, 2014
What's Your Next Exhibit?: Court of Appeals of Kentucky Notes That Documents Used to Refresh Recollection Aren't Exhibits
Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.
The implication of Rules 612 is that a party using a writing to refresh a witness' recollection is not introducing the writing as an exhibit, with the adverse party thereafter having the option of "introduc[ing] in evidence those portions which relate to the testimony of the witness." So, what does that mean in terms of pre-trial disclosure? Let's take a look at the recent opinion of the Court of Appeals of Kentucky in D.L.B. v. Cabinet for Health and Family Services, 2014 WL 26990 (Ky.App. 2014).
Monday, January 6, 2014
Media reporting today on an evidentiary ruling in a high-profile case that might be of particular interest to those currently teaching relevance.
The prosecution wanted to introduce evidence that the defendant fainted when FBI agents confronted him on his lawn and informed him he was the target of an insider-trading probe.
The judge excluded the evidence, stating:
"When an individual who works in the hedge fund industry is approached by the FBI and is accused of having engaged in insider trading in specific stocks and while employed at a specific company, it is likely to be a shocking and highly disturbing event, whether the person is innocent or guilty.”
Certainly a safe ruling that doesn't do any real damage to the prosecution's case (surely, there is better evidence than this!), but as a pure relevance question, isn't there a decent case to be made that fainting in the face of accusation has some ("any") tendency to increase the probability that the defendant knew of his guilt. And if so, is there some reason we can't trust the jury to properly weigh this type of evidence (403)? You don't see much case law on fainting, but this reminds me of flight evidence, which courts routinely allow.
On the other hand, if the defendant had calmly invited the agents in for coffee after being accused, the prosecution would likely have fought to keep that evidence of consciousness of innocence out . . . .
Your Honor, I'm a Liar: Military Court Finds Defendant Doesn't Have to Claim Confession is False Before He Can Impeach It
Similar to its federal counterpart, Military Rule of Evidence 806 provides that
When a hearsay statement, or a statement defined in Mil. R. Evid. 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.
As the above language makes clear, Rule 806 does not expicitly allow for the impeachment of the declarant of a statement under Rule 801(d)(2)(A), which covers statements of party-opponents. According to the Advisory Committee's Note to Rule 806, however, this is simply because
The committee considered it unnecessary to include statements contained in rule 801(d)(2)(A) and (B)—the statement by the party-opponent himself or the statement of which he has manifested his adoption—because the credibility of the party-opponent is always subject to an attack on his credibility.
But does a criminal defendant have to claim that a Rule 801(d)(2)(A) confession is false before he can impeach it? That was the question addressed by the U.S. Navy-Marine Corps Court of Criminal Appeals in United States v. Dougherty, 2013 WL 6858964 (N.M.Ct.Crim.App. 2013), the answer is "no."
Friday, January 3, 2014
Federal Rule of Evidence 609(b) states that
This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:
(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and
(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
As the recent opinion of the Seventh Circuit in United States v. Rucker, 2013 WL 6857989 (7th Cir. 2013), makes clear, one potential stumbling block to the admissibility of old convictions under Rule 609(b) is the admissibility of other convictions for impeachment purposes.
Thursday, January 2, 2014
Last year, I published the essay, The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing. The essay argued that the criminal law concept of transferred intent should apply to the doctrine of forfeiture by wrongdoing contained in Federal Rule of Evidence 804(b)(6) and state counterparts. Rule of Evidence 804(b)(6). I'm glad to see that the Supreme Court of Arizona reached a similar conclusion in State v. Miller, 2013 WL 6842566 (Ariz. 2013).
Wednesday, January 1, 2014
Solid Foundation: Northern District of Illinois Notes Differences Between Self-Authentication & Hearsay
Federal Rule of Evidence 902(6) allows for the self-authentication of
Printed material purporting to be a newspaper or periodical.
In other words, newspapers and periodicals "require no extrinsic evidence of authenticity in order to be admitted...." Back in December, I did a series of posts about the relationship between self-authentication and the rule against hearsay. For another example in that vein, consider American Eagle Outfitters, Inc. v. American Eagle Furniture, Inc., 2013 WL 6839815 (N.D.Ill. 2013).
Tuesday, December 31, 2013
Ex Post Conspiracy: D.C. Circuit Finds Statements Made After Conspiracy Improperly Admitted Under Rule 801(d)(2)(E)
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.
As the language of Rule 801(d)(2)(E) makes clear, co-conspirator statements are only admissible if they are made "during and in furtherance of the conspiracy." Therefore, any statements made after the conspiracy is over, such as statements made after apprehension, are inadmissible under the Rule. This takes us to United States v. Miller, 2013 WL 6818391 (D.C. Cir. 2013).
Monday, December 30, 2013
Honestly?: Court of Appeals of Minnesota Finds Prosecution Improperly Bolstered Victim's Credibility
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
In other words, under Rule 608(a), a witness's credibility cannot be bolstered until it has been attacked. In State v. Varnado, 2013 WL 6839693 (Minn.App. 2013), this protocol was not followed with a witness for the prosecution. But was this error enough for a reversal?