EvidenceProf Blog

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

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Thursday, August 14, 2014

Telling Lies in the U.K.: Rape Defendant Claims Polygraph Results Should be Admissible at U.K. Trial

According to the Western Daily Press,

A man accused of raping a teenage girl has asked for his lie detector test results to be shown to the jury, in what could be a UK legal first. Paul Henry, 48, of Newport, Gwent, has been standing trial at Gloucester Crown Court. Polygraph tests are not currently admissible to court but are used outside court by the probation service The defence team have claimed polygraphs should be admissible.  

So, what's the United Kingdom's position on the admissibility of polygraph evidence, and why might there be some merit to Henry's argument?

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August 14, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 13, 2014

If It's Not Boeing: Western District of Washington Finds ADR Evidence Not Inadmissible Under Rule 408

Federal Rule of Evidence 408(a) reads as follows:

(a) Prohibited Uses. 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 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 — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.

But when exactly is there a "claim," triggering the protections of Rule 408(a)? That was the question addressed by the United States District Court for the Western District of Washington in its recent opinion in Alexander v. Boeing Co., 2014 WL 3900574 (W.D.Wash 2014).

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

Tuesday, August 12, 2014

Absof***inglutely: Supreme Court of Canada Creates New Rule of Evidence Deeming Mr. Big Confessions Presumptively Inadmissible

The Mr. Big technique is a Canadian invention.  Although a version of the technique appears to have been used more than a century ago, its modern use began in the 1990s and by 2008, it had been used by police across Canada more than 350 times.  The technique, used only in cases involving serious unsolved crimes, has secured confessions and convictions in hundreds of cases.  The confessions wrought by the technique are often detailed and confirmed by other evidence.                      

However, the Mr. Big technique comes at a price.  Suspects confess to Mr. Big during pointed interrogations in the face of powerful inducements and sometimes veiled threats — and this raises the spectre of unreliable confessions.  Unreliable confessions provide compelling evidence of guilt and present a clear and straightforward path to conviction.  In other contexts, they have been responsible for wrongful convictions — a fact we cannot ignore.                      

Mr. Big confessions are also invariably accompanied by evidence that shows the accused willingly participated in “simulated crime” and was eager to join a criminal organization.  This evidence sullies the accused’s character and, in doing so, carries with it the risk of prejudice. R v. Hart.

Now, pursuant to the recent opinion of the Supreme Court of Canada in Hart, Mr. Big confessions are presumptively inadmissible.

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August 12, 2014 | Permalink | Comments (0) | TrackBack (0)

Monday, August 11, 2014

Now Available?: Court of Appeals of Minnesota Finds Defendant Failed to Prove Witness's Unavailability

Similar to its federal counterpartMinnesota Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

And, similar to its federal counterpartMinnesota Rule of Evidence 804(b)(3) only applies if the declarant is "unavailable." One way a party can prove unavailability is by showing that

is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance...by process or other reasonable means.

In State v. Carlson, 2014 WL 3892071 (Minn.App. 2014), the Court of Appeals of Minnesota found that the defendant did not use process or other reasonable means to procure a declarant's attendance. Was this the correct ruling?

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August 11, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, August 6, 2014

Due Diligence: 9th Circuit Finds Proper Foundation Laid Under Rule 803(10) in Snowmobiling Case

When a party seeks to introduce a private business record (e.g., a memorandum from XYZ Corp.) under Federal Rule of Evidence 803(6), that party must establish foundational facts through, inter alia, the testimony of the custodian or another qualified witness. When a party seeks to prove the absence of a public record (e.g., the absence of an alleged HUD report) under Federal Rule of Evidence 803(10), that party must establish "that a diligent search failed to disclose a public record or statement...." The Rule, however, is silent as to who must conduct that search. So, who must conduct such a search? Let's take a look at the recent opinion of the Ninth Circuit in United States v. Parker, 2014 WL 3747132 (9th Cir. 2014).

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

Tuesday, August 5, 2014

Missouri Abolishes "Corroboration Rule" and "Destructive Contradictions" Doctrine

In Missouri v. Porter (July 29, 2014), the Supreme Court of Missouri abolished two odd doctrines formerly applicable during sufficiency of the evidence challenges to sex crimes convictions.  The first, known as the "corroboration rule," provided "that an appellate court is to disregard a sex crime victim's testimony if it is contradictory and  uncorroborated."  See page 1, footnote 1 of the opinion.  The second, the "destructive contradictions doctrine," was theoretically applicable in all criminal cases (although it seemed to be applied pretty much only in sex crime cases), and it specified "that an appellate  court is to disregard a sex crime victim's testimony if it is contradictory and  uncorroborated."  See id.

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

Supreme Court of New Jersey Reverses Vonte Skinner's Convictions/My New Essay, Freedom of Character

Yesterday, the Supreme Court of New Jersey reversed Vonte Skinner's convictions for first-degree attempted murder and related crimes in State v. Skinner, 2014 WL 3798993 (N.J. 2014). Readers might recall that I mentioned the Skinner case in a prior blog post. In that post, I mentioned that I had written an essay inspired by the Skinner case that I presented at a conference on the intersection between free speech and criminal law. In that essay, like the New Jersey ACLU, I argued that if Skinner's convictions weren't reversed under the rules of evidence, they should be reversed under the First Amendment because the prosecution used his lyrics to secure his criminal convictions. In its opinion yesterday in Skinner, the Supreme Court of New Jersey relied on New Jersey Rule of Evidence 404(b) and thus did not need to address the Constitutional arguments made by the ACLU or myself. For those interested in those arguments, though, I just posted a copy of my essay, Freedom of Character: Creating a Constitutional Character Evidence Test. That essay can be downloaded by clicking here. Here is the abstract:

This essay seeks to fill a scholarly and judicial void by proposing a First Amendment test that courts should apply when prosecutors seek to introduce defendants’ speech as character evidence. Under this constitutional character evidence test, assuming that the defendant can prove that his words are protected under the First Amendment, the prosecution would have to do more than simply satisfy the rules of evidence; it would also have to prove that application of the rules of evidence to the defendant’s words is narrowly tailored to advance a compelling state interest.


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

Monday, August 4, 2014

Shaken Baby, Shaken Defendant: Northern District of Mississippi Deems Polygraph-Related Testimony in Child Abuse Case

As is the case in most states, "[n]either the fact that a polygraph test was administered nor the results of any such test are admissible at trial under Mississippi law." But can evidence be presented that a polygraph examination was scheduled but not conducted? That was the question addressed by the United States District Court for the Nothern District of Mississippi in its recent opinion in German v. Streeter, 2014 WL 3699836 (N.D.Miss. 2014).

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

Friday, August 1, 2014

Ipse Dixit, Take 2: 11th Circuit Finds District Court Erred in Deeming Pap Smear Testimony Inadmissible

I've written before about the concept of ipse dixit in the context of expert testimony. Ipse dixit is Latin for "he himself said it," meaning the only proof we have of the fact is that this person said it. In many cases, courts will deem expert opinion testimony inadmissible because it is based solely on the ipse dixit of the expert, without any external controls of corroboration. Sometimes, however, a court can go too far in labeling something ipse dixit, which appears to be the case with the recent opinion of the Eleventh Circuit in Adams v. Laboratory Corp. of America, 2014 WL 3724190 (11th Cir. 2014).

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

Thursday, July 31, 2014

Louisiana Purchase: The Louisiana Counterpart to Federal Rule of Evidence 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.

After the enactment of Rule 413 in 1994, the Supreme Court of Louisiana issued two decisions --  State v. McArthur, 719 So.2d 1037 (La. 1998), and State v. Kennedy, 803 So.2d 916 (La. 2001), in which it deemed sexual propensity character evidence inadmissible while noting that the same evidence would have been admissible if Louisiana had its own version of Rule 413. So, how did the Louisiana legislature respond?

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July 31, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 30, 2014

Proof: Court of Appeals of Ohio Finds Magistrate Erred Under Rule 608(B) by Allowing Documentary Impeachment

Similar to its federal counterpartOhio Rule of Evidence 608(B) provides 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.

A good example of the dichotomy found in Ohio Rule of Evidence 608(B) can be found in the recent opinion of the Court of Appeals of Ohio in Ryerson v. White, 2014 WL 3700500 (Ohio App. 8th 2014).

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

Tuesday, July 29, 2014

The Human Polygraph: 10th Circuit Deems FBI Agent's Testimony on Defendant's Dishonesty Inadmissible

It is well established that, except in New Mexico, polygraph evidence is inadmissible to prove the guilt (or innocence) of a criminal defendant. But what if the prosecution wants to call a human polygraph -- an expert, like Dr. Cal Lightman on the TV show "Lie to Me" -- who professes to be able to distinguish truth from falsehood? That was the question addressed by the Tenth Circuit in its recent opinion in United States v. Hill, 749 F.3d 1250 (10th Cir. 2014).

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

Monday, July 28, 2014

Colin Miller Named Associate Dean for Faculty Development at University of South Carolina School of Law

I'm happy to announce that I have been named the Associate Dean for Faculty Development at the University of South Carolina School of Law. Here is the announcement from the law school.


July 28, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, July 25, 2014

Where's The Proof?: Court of Appeals of New York Denies Best Evidence Objection by Defendant Who Defrauded Michael Bloomberg

The Court of Appeals of New York addressed but did not resolve an interesting Best Evidence Rule issue in its recent opinion in People v. Haggerty, 2014 WL 2921401 (N.Y. 2014), a case in which a man allegedly defrauded former New York City Mayor Mike Bloomberg. So, what was the issue?

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

Thursday, July 24, 2014

Informing on Informants: Supreme Court of Florida Imposes Informant Discovery Obligations for Informants

Here's an interesting development out of Florida. According to an article in yesterday's Miami Herald,

The Florida Supreme Court, citing the Innocence Project’s findings, finally has changed the rules of evidence. Beginning this month, prosecutors now are required to disclose both a summary of the jailhouse informant’s criminal history and just what kind of deal a snitch will be getting in return for testimony. And now, jurors will hear about prior cases that relied on testimony from that particular informant.  

The justices ordered new restrictions on the much abused informant testimony, because snitches, the court noted, "constitute the basis for many wrongful convictions." It was an unanimous decision. It was about time.  

So, what are the specifics of change?

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

Wednesday, July 23, 2014

Any Reason These Two Should Not Be Married?: Supreme Court of New Jersey Proposes Crime-Fraud Exception to Marital Privilege

Last July, I posted an entry about the opinion of the Superior Court of New Jersey, Appellate Division in State v. Terry, 68 A.3d 177 (N.J.Super.A.D. 2013). In Terry, the court reversed the trial court's decision to engraft a crime-fraud exception onto New Jersey Rule of Evidence 509, which provides that

No person shall disclose any communication made in confidence between such person and his or her spouse unless both shall consent to the disclosure or unless the communication is relevant to an issue in an action between them or in a criminal action or proceeding in which either spouse consents to the disclosure, or in a criminal action or proceeding coming within Rule 23(2). When a spouse is incompetent or deceased, consent to the disclosure may be given for such spouse by the guardian, executor or administrator. The requirement for consent shall not terminate with divorce or separation. A communication between spouses while living separate and apart under a divorce from bed and board shall not be privileged communication.

The exception would have allowed prosecutors to present into evidence wiretapped phone calls between husband and wife Teron Savoy and Yolanda Terry in which they discussed a drug trafficking network run by Savoy. The trial judge reasoned that because these statements were made in furtherance of a crime, they should be admissible, notwithstanding the confidential marital communications privilege contained in Rule 509. The Superior Court of New Jersey, Appellate Division, later reversed, concluding that the trial judge lacked the authority to create a crime-fraud exception out if whole cloth. So, how did the Supreme Court of New Jersey rule in State v. Terry, 2014 WL 3579653 (N.J. 2014)?

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July 23, 2014 | Permalink | Comments (3) | TrackBack (0)

Tuesday, July 22, 2014

American Gun: Aurora Shooter James Holmes Tries to Use NAS Report to Preclude Expert Firearm Testimony

James Holmes, who allegedly fatally shot twelve people and injured dozens more at the midnight premiere of "The Dark Knight Rises," at an Aurora movie theater, has moved to preclude expert opinion testimony that would link the bullets used in the shootings to his firearms. If granted, the motion of course would cause significant problems for the prosecution in proving the charges against Holmes. So, what is the basis of Holmes's motion, and is it likely to be successful?

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

Monday, July 21, 2014

Practiced at the Art of Deception?: Supreme Court of South Carolina Uphold Plea Bargain Waiver Tied to Polygraph Test

Under South Carolina Rule of Evidence 410, a defendant's statements during plea discussions are inadmissible against him at a subsequent criminal or civil trial. Pursuant to the Supreme Court's opinion in United States v. Mezzanatto, a defendant can waive the protections of Rule 410, with the prosecution often using such waivers as the ante for defendants to get to the plea bargaining table. But I've never seen a waiver quite like the one in State v. Wills, 2014 WL 3461808 (S.C. 2014). Pursuant to the waiver in Wills,

petitioner agreed that if a subsequent polygraph examination demonstrated deception, inconsistencies, or that petitioner shot the victim, then "the terms of this proffer are null and void and any statements made by [petitioner] may be used against him by the State for any legal purpose, including...disposition of charges through plea or trial...and impeachment."...Further, section 7 provide[d] in relevant part not only that petitioner's violation of the Agreement would render the Proffer's terms null and void, but also that "the State shall have the right to use any information obtained through this Proffer in any fashion, whether direct [or] collateral...."

So, was the waiver constitutional and enforceable? That was the question addressed by the Supreme Court of South Carolina in Wills.

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

Thursday, July 17, 2014

Article of Note: "Evidence of Lies and Rules of Evidence" and fMRI

Morton's Fork?: Supreme Court of Montana Finds Defendant Has to Testify to Support Self-Defense Claim, Despite Stand Your Ground

I've written a few posts about the doctrine of "communicated character," which allows a defendant to present evidence of the alleged victim's prior violent acts, not to prove the victim's violent tendencies, but instead to prove the defendant's reasonable apprehension. Of course, what this means is that a defendant must have knowledge of the victim's violent past to present such character evidence. So, can a defendant prove that knowledge without himself testifying at trial? And how might a Stand Your Ground law change matters? Let's take a look at the recent opinion of the Supreme Court of Montana in State v. Montana Ninth Judicial District Court, 2014 WL 3430350 (Mont. 2014).

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