EvidenceProf Blog

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

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Friday, June 6, 2014

Renewal Notice: 8th Circuit Finds No Offer of Proof Needed Based on Prior Definitive Ruling

As amended in 2000, Federal Rule of Evidence 103(b) reads as follows:

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

So, assume that a party files a motion in limine seeking to exclude evidence before trial. If the judge makes a definitive ruling deeming the subject evidence inadmissible, does the proponent need to make an offer of proof at trial? In Smith v. Hy–Vee, 622 F.3d 904 (8th Cir.2010), the Eighth Circuit answered this question in the affirmaive. In Lawrey v. Good Samaritan Hosp., 2014 WL 2489076 (8th Cir. 2014), however, the same court answered the question in the negative.

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

Thursday, June 5, 2014

Nothing Constant But Inconsistency: Montana Case Reveals State's Prior Inconsistent Statement Rule

Federal Rule of Evidence 801(d)(1)(A) provides that 

A statement that meets the following conditions is not hearsay:  

(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement:  

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

Meanwhile, Montana Rule of Evidence 801(d)(1)(A) provides that

A statement is not hearsay if:      

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony....

So, what is the difference between these two Rules? Let's take a look at State v. Pound,  2014 WL 2515598 (Mont. 2014).

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June 5, 2014 | Permalink | Comments (2) | TrackBack (0)

Wednesday, June 4, 2014

That's Childish: Article About Indiana Cold Case Reveals Shift in Hoosier State's Treatment of Child Witnesses

According to an article in IndyStar,

The 37-year-old murder case against Michael Ackerman came down to the medical evidence from a 1977 autopsy and the testimony of a then-3-year-old witness....

At the time, the testimony of a 3-year-old would not have been allowed in court. Retired Indianapolis police officer James Stobe testified Monday that, under existing rules of evidence at that time, children under the age of 7 were not considered competent witnesses.  That rule changed in 1994, Strobe said. The new rule starts with a presumption that all children are competent to testify, unless that is challenged by the defense.

So, what was the prior rule?

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

Tuesday, June 3, 2014

In Need of Backup: Charged Dropped Against TN Man Based on Corroboration Rule

Accoring to an article from the Johnson City Press,

A Kingsport man accused of being part of a scheme to steal a woman’s $500,000 inheritance was acquitted of his charge Monday after a judge ruled there was not sufficient evidence for a jury to deliberate on the case.

Roscoe Phillips, 25, went to trial Monday on a charge of theft over $60,000, but because the state had little more than two accomplices’ testimony, Criminal Court Judge Stacy Street granted a motion for acquittal.  

Defense attorney Matt King made that motion after the state rested its case. King argued that the women, Pamela Perkey and Wendi Buckingham, were accomplices in the theft. According to the rules of evidence, testimony from an accomplice cannot be the basis for a conviction.    

So, what is the relevant rule of evidence, and what does it mean about the other evidence of guilt presented by the prosecution?

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

Monday, June 2, 2014

The Power of Priors: 11th Circuit Finds No Ineffective Assistance in Counsel Against Testifying

Federal Rule of Evidence 609(a) provides that

(a) In General. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:  

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:  

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and  

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and  

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

According to one famous study by Harry Kalven, Jr. and Hans Zeisel, "nationwide, juries learn of defendants' criminal records in seventy-two percent of the cases in which defendants testify in their own behalf." As a result, many such as John Blume have noted that even factually innocent defendants fail to testify on their own behalf. See John H. Blume, The Dilemma of the Criminal Defendant with a Prior Record--Lessons from the Wrongfully Convicted, 5 J. Empirical Legal Stud. 477, 486, 490-91 (2008). 

But does this decision make sense? It is rare to see a court address the power of Rule 609(a), but that's exactly what the Eleventh Circuit did in Pericles v. United States, 2014 WL 2198514 (11th Cir. 2014).

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

Sunday, June 1, 2014

JODI ARIAS MURDER CONVICTION PENALTY PHASE RETRIAL – NEW JURY TO BE SELECTED BEGINNING SEPTEMBER 8 – JUDGE REJECTS LIVE MEDIA COVERAGE AND MOTIONS TO TAKE DEATH PENALTY OFF THE TABLE

On May 8, 2013 in a high-profile first-degree murder case, Jodi Arias was convicted by a jury of killing her ex-boyfriend in 2008 in a particularly violent manner. The trial lasted five months, and many individuals were glued to their televisions watching the live proceedings. The jury determined that she was eligible for the death penalty, but after many hours of deliberation in the sentencing phase of the trial, they were unable to reach a unanimous verdict to impose death.

The State of Arizona decided to go forward with another proceeding on sentencing – with a new jury. The new jury is scheduled to be selected beginning on September 8, 2014. Judge Sherry Stevens has heard many closed-door hearings on the case and she recently decided to deny a request by media outlets to again provide live coverage. She ruled the proceedings could be recorded, but no release of the recording will be allowed until after the jury rules on the sentence. In the event the jury is unable to reach a unanimous verdict on the sentence, the Judge is to decide the sentence - but the death penalty will not be an option for the Judge.

Judge Stevens also ruled this week that Ms. Arias suffered no prejudice when a member of her defense team (a mitigation specialist) was barred for a time from visiting Ms. Arias in the Maricopa County jail. The defense team member was accused by the Maricopa authorities of smuggling out of the jail drawings prepared by Ms. Arias.

Ms. Arias had attempted multiple times to agree to life imprisonment but the State of Arizona has not accepted her requests.

Jon Stewart poked fun at the media for its coverage of the Arias trial - see: http://thedailyshow.cc.com/videos/jprb6v/nancy-grace---the-jodi-arias-trial.

Written by Ann M. Murphy, Professor, Gonzaga Law School

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

Thursday, May 29, 2014

STEUBENVILLE RAPE CASE – DO NOT HIDE OR DESTROY EVIDENCE – STATE OF OHIO V. MICHAEL MCVEY

The State of Ohio recently released its Bill of Particulars in the case of State of Ohio v. Michael McVey, 13-CR-228 - Court of Common Pleas for Jefferson County, Ohio (Judge Patricia Cosgrove). This was in response to a motion filed by the Defense for more information on the charges. The trial is scheduled for August 18, 2014. http://www.wtov9.com/news/features/top-stories/stories/details-mcveys-charges-released-4444.shtml

Superintendent Michael McVey was indicted (along with three others) last November in connection with the Steubenville rape case (football players Ma’lik Richmond and Trenton Mays were convicted of the rape of a 16-year old highly intoxicated woman (Jane Doe))

http://www.nytimes.com/2013/11/26/us/steubenville-school-superintendent-indicted-in-rape-case.html?_r=0

The New York Times described this whole episode as a lesson for adults. McVey told investigators he had no knowledge of the rape – he had only heard some vague rumors about the events that took place on August 11, 2012. http://www.nytimes.com/2013/11/27/sports/in-steubenville-rape-case-a-lesson-for-adults.html

The Ohio Attorney General begs to differ and three of the four administrators have accepted plea deals. Mr. McVey has pleaded not guilty. According to the AG, McVey wiped hard drives, erased emails, and lied to investigators. All of this was done in a cover-up to protect the star quarterback and one of his wide receivers, according to the State of Ohio.

A copy of the Bill of Particulars is available on this blog - http://prinniefied.blogspot.com/2014/05/steubenville-time-to-take-out-trash.html

Written by Ann M. Murphy, Professor, Gonzaga Law School

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

Wednesday, May 28, 2014

Dispatches from the Drug War: What’s the Proper Etiquette When You Are Responsible for a Weed Seizure?

This story on TMZ (“Sublime With Rome Weed Confiscated ... Linkin Park Ratted Us Out To Cops”) is indicative of the bizarre place this country has come to with respect to marijuana prohibition.  (I should probably note that I heard about this on the radio this morning).  Anyway, the article reports with disdain that a member of security for one band (Linkin Park) told Arizona police officers that members of another band (Sublime) were smoking marijuana.  The police went to the band’s dressing room and found "several bags of marijuana" which they confiscated (hey, no search warrant?!)  The story doesn’t reference any charges (what, why would there be charges?!) and includes this nugget that I think encapsulates the whole through-the-looking-glass world we have come to: 

“A rep for Sublime … tells TMZ ... Linkin Park felt badly and offered to replace the weed that was taken.  But the rep says the band refused and is still pretty pissed off about the whole thing.”

That’s nice that Linkin Park is trying to make things right.  Next I expect an apology from the Arizona police....

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

Saturday, May 24, 2014

OJ SIMPSON APPEALS TO NEVADA SUPREME COURT ON HIS 2008 KIDNAPPING AND ARMED ROBBERY CONVICTION – THE DEFENDANT WHO SEEMINGLY WILL BE FOREVER IN THE NEWS

Just when you thought it was safe to go back in the water…yet another criminal case for OJ Simpson. This time it is his appeal to the Nevada Supreme Court for his October 3, 2008 conviction on 12 criminal charges (together with his friend CJ Stewart) of kidnapping and armed robbery in Nevada. Simpson’s defense at the trial was that he innocently went to a hotel room to retrieve his sports memorabilia. The State had a different take on it – it was a violent confrontation with a gun (Simpson was not holding the gun). On December 5, 2008 Simpson was sentenced to from 9 to 33 years in prison. He is eligible for parole in 2017.

Key evidence submitted by the State was audiotapes of Simpson and Stewart, both planning the confrontation as well as the confrontation in the hotel room itself. The tapes were secretly made by collectables middleman Thomas Riccio. Significant evidence provided by the Defense included, oddly enough more audiotapes – of the police laughing about how they were going to “get” Simpson, and of a witness seemingly indicating he would alter his testimony for money. Witness Riccio was cross-examined on the stand about the fact he was a convicted felon and that he accepted $210,000 from media sources for his story after the event. Judge Glass prohibited mention of Simpson’s 1995 murder trial for the deaths of Nicole Brown Simpson and Ronald Goldman, although it’s rather hard to believe anyone in America had not heard of the “trial of the century.”

This week Simpson’s lawyers submitted a request for the Nevada Supreme Court to hear his case, although they exceeded the Court’s 14,000-word limit and submitted a document with 19,993 words. In the request for appeal, Simpson maintains his attorney “botched” the case and the jury was biased based upon his notoriety.

http://www.cnn.com/2008/CRIME/10/04/oj.simpson.verdict/ (information on original conviction)

http://www.latimes.com/nation/nationnow/la-na-nn-new-simpson-appeal-20140522-story.html (appeal)

http://espn.go.com/nfl/story/_/id/10969525/oj-simpson-submits-new-appeal-las-vegas-robbery-conviction (appeal)

Written by Ann M. Murphy, Professor, Gonzaga Law School

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

Tuesday, May 20, 2014

BE CAREFUL WITH THOSE PLEADINGS! IMPLIED WAIVER OF THE ATTORNEY-CLIENT PRIVILEGE

In my former life as a litigator for the Internal Revenue Service (someone had to do it), I was always amazed at the “deer in the headlight” looks I received when I informed an attorney that he/she waived the attorney-client privilege by including in his/her pleading something to the effect of, “and petitioner is not liable for penalties as she relied upon advice of counsel.” Yes, it is time to turn over that advice of counsel. The privilege is waived.

But what if, instead of indicating the petitioner relied upon advice of counsel, the pleading simply states the following:

there is or was substantial authority for the Partnership’s and its partners’ tax treatment of any items resulting in an underpayment of tax, and the Partnership and its partners reasonably believed that their tax treatment of such items was more likely than not the proper [tax] treatment: and

any underpayment of tax was due to reasonable cause and with respect to which the Partnership and its partners acted in good faith.

Would that language in a pleading waive the attorney-client privilege? The United States Tax Court said yes. See: AD Investment 2000 Fund LLC, Community Media, Inc. and AD Global 2000 Fund, LLC, Warsaw Television Cable Corp. v. Commissioner, 142 T.C. No 13 (April 16, 2014), (AD Investment and AD Global) available at: http://www.ustaxcourt.gov/InOpHistoric/adinvestmentdiv.halpern.TC.WPD.pdf. The Tax Court granted the IRS’s motion to compel the production of six opinion letters from the law firm of Brown & Wood, LLP and further indicated it would impose sanctions if the petitioners failed to comply.

The consolidated case arises out of the ominous sounding “Son of BOSS” tax shelter that was sold to investor partnerships (and LLCs) in the 1990s. The world came crashing down on Son of BOSS and in fact the law firm of Sidley & Austin, which merged with Brown & Wood, paid a $39.4 million civil tax shelter promoter penalty to the IRS in 2007. Now those partnerships and LLCs that did not take advantage of the government’s Son of BOSS settlement initiative (IRS Announcement 2004-46) are in court, including these two LLCs (that elected to be taxed as partnerships) at issue, AD Investment and AD Global.

Despite what was undoubtedly thought to be a careful wording of the pleading, Judge Halpern wrote in a full Tax Court opinion that, “by putting the LLCs’ legal knowledge and understanding into contention in order to establish a good-faith and state-of-mind defenses, [petitioners] forfeit the LLCs’ privilege protecting attorney-client communications relevant to the content and the formation of their legal knowledge, understanding, and beliefs.”

AD Investments and AD Global argued that “the petitions do not assert any advice-of-counsel defense, nor do they mention (or even allude to) any advice from the attorneys.” Judge Halpern cited to U.S. v. Exxon Corp., 94 F.R.D. 246, 248 (D.D.C. 1981) and to Professor Paul R. Rice’s evidence treatise (“the most common situation in which courts have found waiver is where the client claims that he acted on the ‘good faith’ belief that his conduct was reasonable and legal”) and determined the privilege was waived. He stated the following: “it is only fair that respondent [the government] be allowed to inquire into the bases of that person’s knowledge, understanding, and beliefs including the opinions (if considered).”

A tax practitioner must be especially careful not to waive the attorney-client privilege unless he/she intend to do so. See: Lee Sheppard, The Tax Court Didn’t Repeal Attorney-Client Privilege, Forbes 4/20/14 (privilege is easily waived in tax cases); and Claudine V. Pease-Wingenter, Skating Too Close to the Edge: A Cautionary Tale for Tax Practitioners about the Hazards of Waiver, 81 U. Cin. L. Rev. 953 (2013) (attorney-client privilege waiver is a “huge trap for the unwary”).

Written by Ann M. Murphy, Professor, Gonzaga Law School

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

Who's Afraid of Social Media Evidence?

Quick blurb registering my skepticism of the Mississippi Supreme Court’s recent ruling that Facebook messages from a defendant in a murder case were insufficiently authenticated.  The Court’s outsized  fear of electronic evidence seems to drive its conclusion that the name and photo that accompany a Facebook message (both matching the defendant), plus the wife’s testimony that the Facebook messages to her, in fact, came from her husband, was not sufficient to authenticate the messages.

Recall the standard is simply that a jury could find by a preponderance of the evidence (50%) that “the matter in question is what its proponent claims.”  M.R.E. 901(a).  Hard to imagine that the above evidence – particularly a spouse’s testimony about receiving a Facebook message from her husband – did not meet that standard.

The Mississippi Supreme Court saw it differently, however.  Here is the pertinent language from the opinion: (Smith v. Mississippi, No. 2012–CT–00218–SCT (April 17, 2014))

“The State failed to make a prima facie case that the Facebook profile whence the message came belonged to Smith, as the only information tying the Facebook account to Smith is that the messages purport to be from a ‘Scott Smith’ and are accompanied by a very small, grainy, low-quality photograph that we can only assume purports to be Smith.”

“The State failed to make a prima facie case that the messages were actually sent by Smith.  The only information tying the actual messages to Smith is Waldrop’s testimony that they were Smith’s messages to her. . . .  She did not testify as to how she knew that the Facebook account was Smith’s, nor did she testify as to how she knew that Smith actually authored the Facebook messages.”

H/T Jessica Smith (‏@ProfJessieSmith)

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

Monday, May 19, 2014

IT’S PRETTY OBVIOUS, ISN’T IT? A BRUTON DOCTRINE ORDER FROM THE NORTHERN MARIANA ISLANDS SUPERIOR COURT

How often do we see an evidence case out of the Northern Mariana Islands? This is a well written and concise Order written with a healthy dose of common sense by Associate Judge Joseph N. Camacho of the Superior Court for the Commonwealth of the Northern Mariana Islands – Commonwealth of the Northern Mariana Islands v. Parvej MD. Barpery and Daisina Suda, Crim. Case No. 14-0014, available at: http://www.cnmilaw.org/pdf/superior/14-05-05-CR14-0014.pdf.

At issue were statements made by Ms. Suda (a co-defendant) that the Commonwealth requested to use against Mr. Barpery (the defendant for purposes of the Order).There was not a hearsay problem because they were statements of a party opponent when offered by the government due to the co-conspirator rule. The question was whether the statements violated Mr. Barpery’s Sixth Amendment right to confront witnesses against him (Ms. Suda). The government asked for and was granted a joint trial against both Suda and Barpery on April 16, 2014. No doubt assuming that Suda would assert her right to refrain from testifying, the government requested a pre-trial order to ensure it would be able to use her statements against Barpery. Judge Camacho denied the government’s request based upon Bruton v. U.S., 391 U.S. 123 (1968) and its progeny.

On May 14, 2014, a six-person jury found security guard Barpery not guilty of the count of sexual assault in the first degree, and Judge Camacho determined he was not guilty of the misdemeanor charge of disturbing the peace. Suda (Barpery’s former girlfriend) had earlier accepted a plea offer from the government to plead guilty to disturbing the peace in exchange for the dismissal of the sexual assault charge. She testified against Barpery at his trial.

The facts of the case as set out by the government were disturbing. The government contended that Barpery, Suda, Suda’s 17-year-old daughter, and Suda’s 3-year-old son took a taxi to the San Jose Hotel. The following were Suda’s statements the government sought to use at trial:

[M]y 17-year-old daughter [ ], my 3-year-old son [ ], another person, and I took a taxi to the San Jose Motel, where we ate dinner and I drank 3 cans of Busch Ice .... The next day, [my 17-year-old daughter] told me she was sexually assaulted and said she couldn't believe that I made it happen. I told her I didn't remember anything because I was drunk. (January 10, 2014 statement – italics added)

 

[My 17-year-old daughter] told me I was holding her leg while she was sexually assaulted in the motel room. I told her I was sorry and that I couldn't do anything because I was threatened and I was scared. I was in the motel room during the sexual assault but was too scared to do anything.

[My 17-year-old daughter], [my 3-year-old son], another person and I took a taxi to the San Jose Motel. My nephew [ ] was outside at the time. He asked what we were going to do in the motel room and I told him we were going to spend some family time. I put [my 3-year-old son] in the shower. I was drinking beer quickly in the motel room because I was scared. [My 17-year-old-daughter] was naked, crying really loud, and screaming. I held [her] leg while she was sexually assaulted because I was scared.

(January 15, 2014 statement – italics added)

Barpery objected to the use of these statements without his right to cross-examine Suda. The government responded that “by replacing Defendant Barpery’s name with neutral pronouns, the redacted statements are constitutionally permissible and not a violation of the defendant’s confrontation rights.”

On pages 3, 4, and 5 of the Order, Judge Camacho set forth some Confrontation Clause and Bruton jurisprudence, and he listed state and federal court “varying results” concerning the use of neutral pronouns. He ultimately determined that there were only two co-defendants (Barpery and Suda) and stated the following:

Finally, the Court finds that even if Defendant Suda’s redacted statements were the first piece of evidence to be introduced at trial, the jury could infer from those statements the fourth person in the hotel room, the person who committed the sexual assault, was Defendant Barpery. Thus even though evidence introduced after the redacted confessions, such as the testimony of the alleged victim, may confirm that inference, such external evidence would not be necessary to make the inference.

The Judge further determined that the statements would violate Barpery’s confrontation rights even in the event a limiting instruction was given to the jury. It would be quite obvious to the jury who "another person" was in these circumstances.

This is a useful case for class to show Confrontation Clause issues, the Bruton doctrine, credibility of witnesses, and prior inconsistent statements.

 

Additional links:

Newspaper article on testimony at trial: http://www.saipantribune.com/index.php/2-cousins-say-barpery-sexually-assaulted-motel/

Newspaper article on Barpery’s not guilty jury verdict (sexual assault) and not guilty bench decision (disturbing the peace): http://www.saipantribune.com/index.php/2-cousins-say-barpery-sexually-assaulted-motel/

Submitted by: Professor Ann M. Murphy, Gonzaga University School of Law

 

May 19, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, May 15, 2014

What's Next for the Supreme Court's Confrontation Clause Jurisprudence?

Please Welcome Guest Blogger Ann Murphy

Ann Murphy, a professor at the Gonzaga University School of Law, will be joining the blog as a guest blogger for the last two weeks of May. Professor Murphy previously guest blogged here in June 2011, posting the following entries: Frye in the TrunkThe Future is Now for FRE 502No End-Run Allowed under the Confrontation Clause (9th Circuit)Bullcoming Decided - No Surrogate Allowed, and Deepwater Horizon Order - Marital Privilege when using a Company Computer. Some of Professor Murphy's articles include:

Vanishing Point: Alzheimer’s Disease and its Challenges to the Federal Rules of Evidence, 2012 Mich. St. L. Rev. 1245;

Is It Safe? The Need For State Ethical Rules to Keep Pace With Technological Advances, 81 Fordham Law Review 101 (2013); and 

Federal Rule of Evidence 502 – Inadvertent Disclosure – The “Get-Out-Of-Jail-Free Provision” – Or Is It?, 41 New Mexico Law Review 193 (2011) 

Murphy

-CM

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

Wednesday, May 14, 2014

An oral historian privilege?: Thoughts on the Gerry Adams Arrest

Over at Lawyers, Guns & Money, historian Erik Loomis has a post on the arrest of Gerry Adams and its possible effect on the work of oral historians.  For those unfamiliar with the recent arrest of Adams for questioning about a decades-old murder of a Belfast woman suspected of being an informant for the UK government (accused of informing against the IRA), see this article by Beth McMurtrie in the Chronicle of Higher Education.  In short, reseachers conducted interviews with participants in the "Troubles" and promised them confidentiality, which they were unable to honor in the face of demands for evidence from federal officials complying with requests from UK counterparts.

For now, let's set aside entirely the question of whether the UK government---hardly an unbiased observer of events during the Troubles in Northern Ireland---is wise to pursue Adams at this time for the 1972 murder of Jean McConville.  And let's ignore too the question of whether the United States was wise to (or bound by treaty to) obtain evidence on the UK's behalf from an oral history archive at Boston College.  And let's further ignore whether various participants in the oral history project (historians and witnesses) were wise in their various doings.

(Having studied in Ireland for a year on a George Mitchell Scholarship during 2001-2002 and recently visited Belfast to deliver some lectures at Queen's University, I can't help observing how much better Belfast appeared this March than it did when I first visited.  It was wonderful to see the optimism of Belfast Lord Mayor Máirtín Ó Muilleoir when he hosted me and my wife at the City Hall, I wish supporters of the peace process continuing success.)

Let's briefly consider instead the evidence law question presented: Should a university (or some other entity pursuing academic work) have the power to protect evidence obtained from research subjects from the prying eyes of law enforcement?  

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

Avoiding a Confrontation: EDNY Writes Interesting Bruton Doctrine Opinion in Case With Nontestimonial Statement

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission, at a joint jury trial, of a co-defendant's statement that facially incriminates another defendant, unless the co-defendant tesifies at trial. That said, in the wake of the Supreme Court's opinion of Crawford v. Washington, basically all courts have found that the Bruton doctrine only applies to testimonial statements. In my article, Avoiding a Confrontation?: How Courts Have Erred in Finding that Nontestimonial Hearsay is Beyond the Scope of the Bruton Doctrine, I argued against this cordoning off of the Bruton doctrine. Now, the recent opinion of the United States District Court for the Eastern District of New York in United States v. Taylor, 2014 WL 1653194 (E.D.N.Y. 2014) has given me additional ammunition.

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May 14, 2014 | Permalink | Comments (2) | TrackBack (0)

Tuesday, May 13, 2014

Sequestered Assets: Maine Federal Court Finds No Problem With Detective Sitting Next to Prosecutor Throughout Trial

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:  

(a) a party who is a natural person;  

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;  

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or  

(d) a person authorized by statute to be present.

The recent opinion of the United States District Court for the District of Maine in Clark v. United States, 2014 WL 1870699 (D. Me. 2014), does a good job of disentangling Rule 615(b) from Rule 615(c).

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

Monday, May 12, 2014

When Prosecutors Object to Compelling Defense Evidence

The Richmond Times Dispatch is reporting on a recent kidnapping conviction (of Mark Weiner) called into doubt by one of the alternate jurors, who claims the absence of any corroboration left him “quite convinced, beyond any doubt, that the accusation against [the defendant] was pure fabrication.”  (The other jurors, obviously, disagreed).  Apart from the factual questions underlying the conviction, the story presents compelling evidentiary and prosecutorial tactics questions.  The article states that the defense offered evidence that AT&T cellphone tower data, interpreted by an expert, showed that the victim’s cell phone (which sent text messages to the victim's boyfriend during the abduction) never accessed the cell tower closest to the alleged abduction site, while regularly accessing a tower near the victim’s home during the time she was alleged to be abducted.  According to the story, the prosecutor, “objected to the introduction of the records because [the defense counsel] had not subpoenaed the custodian of the records with the telephone company.” 

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

Friday, May 9, 2014

A Foolish Consistency, Take 2: Is the Amendment to Rule 801(d)(1)(B) Less Impactful Than Previously Thought?

Earlier this week, I posted an entry about the amendment to Federal Rule of Evidence 801(d)(1)(B). Currently, that Rule provides that a statement is not hearsay if it

(B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying....

Under the amendmentFederal Rule of Evidence 801(d)(1)(B) will now provide that a statement is not hearsay if it

(B) is consistent with the declarant’s testimony and is offered:  

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or  

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground....

In my previous post, I lamented the fact that a new species of prior consistent statement will be admissible under the Rule. Now, however, after reading the Committee Note attached to the amendment, I'm not so sure that this new species will (or at least should) be admissible.

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

Thursday, May 8, 2014

Confronting Death: 4th Circuit Finds Confrontation Clause Doesn't Apply at Sentencing Selection Phase of Capital Trial

Does the Confrontation Clause apply to hearsay statements that the prosecution seeks to admit at the sentencing selection phase of a capital trial? This was the most interesting question addressed by the Fourth Circuit in its recent opinion in United States v. Umaña, 2014 WL 1613886 (4th Cir. 2014).

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