EvidenceProf Blog

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

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Monday, July 7, 2014

No Lie: Western District of Kentucky Finds Tampering With Evidence Not a Crime of Dishonesty/False Statement

Federal Rule of Evidence 609(a)(2) reads as follows:

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

(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.

So, does a conviction for tampering with evidence qualify as a crime of dishonesty/false statement under Rule 609(a)(2)? Let's take a look at the recent opinion of the United States District Court for the Western District of Kentucky in United States v. Parker, 2014 WL 2993828 (W.D.Kent. 2014).

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July 7, 2014 | Permalink | Comments (1) | TrackBack (0)

Saturday, July 5, 2014

EvidenceProf in the New York Times: Baruch College Hazing Death & the Admissibility of Computer Animations

On December 9th, freshman, Chun Hsien Deng died during at fraternity hazing ritual at Pennsylvania's Baruch College. According to a New York Times article by Ariel Kaminer,

Charges had been expected to be filed by May, but Chief Lewis said prosecutors were still awaiting a medical report and a digital animation that would depict the events surrounding the death....

I spole with Ms. Kaminer about Commonwealth v. Sarge, the Supreme Court of Pennsylvania case that will goven the admissibility of digital animation in the case, and I'm quoted in her article. Back in 2007, I posted an entry about a Christmas Eve shooting in Pennsylvania an the dispute over whether computer animations should have been deemed admissible at the ensuing trial.



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

Thursday, July 3, 2014

You Complete Me: Illinois Court Botches Rule of Completeness Ruling

Similar to its federal counterpartIllinois Rule of Evidence 106 states that

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

After re-reading this language, you can see why the court's interpretation of this "rule of completeness" in People v. Kraybill, 2014 WL 120232 (Ill.App.1st 2014), was dead wrong.

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July 3, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 2, 2014

Blink: Court of Special Appeals of Maryland Finds Eye Blinking by Shooting Victim Admissible as Dying Declaration

On November 26, 2010, Prince George's County Detective Latasha Green visited the Shock Trauma Unit to see if Pate could identify a picture of his shooter from a photographic array. Just prior to the session, Nurse Keener had asked Pate a series of questions to determine whether he was “alert and oriented.” She determined that he was. Nurse Keener later testified that blinking hard is a primary method of communication for patients who are unable to speak. She elaborated on how the technique works.

Detective Green showed Pate a series of six photographs and asked him to blink hard3 if he saw a picture of the person who shot him. Pate blinked hard when he was shown the third picture in the photographic array but did not blink hard when shown any of the other five pictures. The third photograph was that of the appellee, Jermaine Hailes. The photographic array procedure was recorded on videotape and was entered into evidence at the suppression hearing. State v. Hailes, 2014 WL 2191405 (Md.App. 2014).

Was Pate's eye blinking admissible as a dying declaration? 

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

Tuesday, July 1, 2014

Communication Breakdown: Supreme Court of Mississippi Reverses Murder Conviction Based on Character Evidence Error

Similar to its federal counterpartMississippi Rule of Evidence 404(a)(2)(B) allows for the admission of

Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution to rebut evidence that the victim was the first aggressor

That said, similar to its federal counterpartMississippi Rule of Evidence 404(a)(2)(B)

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

In other words, while a criminal defendant can present evidence of the alleged victim's bad character for violence, he generally can only prove that character on direct examination through opinion and reputation testimony. But what if the defendant has awareness of the alleged victim's prior bad acts? Let's take a look at the opinion of the Supreme Court of Mississippi in Richardson v. State, 2014 WL 2894439 (Miss. 2014).

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July 1, 2014 | Permalink | Comments (2) | TrackBack (0)

Monday, June 30, 2014

Reckless, Episode 1: Juror Note Taking in South Carolina

In last night's episode of "Reckless," defense attorney Jamie Sawyer sweet talks a court officer into allowing her to enter the courtroom of her murder trial before anyone else. While there, Sawyer replaces the jurors' pencils with pens that are presumably on their last leg. Later, when assistant district attorney Roy Rayder is interrogating a witness, the pens stop working. It's the kind of thing that you only see on TV, but what you do see in South Carolina courtrooms, at least in some cases, is juror note taking.

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

Friday, June 27, 2014

EvidenceProf on the Boob Tube: CBS' "Reckless" Premieres Sunday at 9:00

This Sunday at 9:00 P.M. is the premiere of the new CBS show, "Reckless." According to CBS,

RECKLESS is a sultry legal drama set in Charleston, S.C., where a gorgeous Yankee litigator and a charming southern attorney must hide their intense mutual attraction as a police sex scandal threatens to tear the city apart. Jamie Sawyer is enviously cool, confident and armed with south side of Chicago street-smarts as she takes on the good ol’ boys in the South.  Her handsome courtroom rival is Roy Rayder, a divorced father of two, embodies the Old South and is the newly minted City Attorney, thanks to his influential former father-in-law, Dec Fortnum.  When disgraced cop Lee Anne Marcus hires Jamie to represent her in a lawsuit against the police department, Jamie and Roy discover that Lee Anne is at the epicenter of a sinister case with dire implications for the members of the Charleston PD.  Heading that department is Deputy Chief Holland Knox, a family man who radiates integrity.  Working under him are Terry McCandless, a cocky and corrupt detective, and Preston Cruz, Jamie’s well-respected boyfriend who might not be all that he appears. Helping Jamie is her confidante and paralegal, Vi Briggs, an expert at digging up case-winning information. As Jamie and Roy spar in and out of the courtroom, dark secrets simmer behind every door and threaten to tarnish the genteel facade of seductive Charleston.

I served as a legal consultant to the show, answering questions regarding the rules of evidence, criminal law, and South Carolina law. So, how much of that counsel is likely to make it to the screen? According to New Bern City Attorney Scott Davis,

"It is not intended to be a serious drama....To a lawyer's ear, you would certainly realize they are not following the rules of evidence and the rules of procedure. They are just making a story that is interesting to watch."

Davis is a good person to ask about verisimilitude: His life served as an inspiration for the show. Will the show itself be inspired or at least provide some frothy summer entertainment. I guess we'll all see on Sunday night.


June 27, 2014 | Permalink | Comments (2) | TrackBack (0)

Thursday, June 26, 2014

Bang, Zoom, Straight to the Moon: Supreme Court Finds Warrants Generally Needed Before Searching Cell Phones

In yesterday's opinion in Riley v. California, the Supreme Court found in a unanimous opinion that police officers cannot routinely search digital information on arrestees' cell phones without first procuring a search warrant. I wrote about the justification for and proper scope of a search incident to a lawful arrest (SILA) in my article, Stranger Than Dictum: Why Arizona v. Gant Compels the Conclusion that Suspicionless Buie Searches Incident to Lawful Arrests are Unconstitutional. In Riley, the Court found that neither of the justifications for a SILA -- (1) preventing the destruction of evidence; and (2) preventing the arrestee from accessing a weapon -- applied to the search of a cell phone. The Court also found that the special justifications (found in Gant) that allow for broader searches of vehicles do not apply to cell phones. And while the State had tried to analogize searches of cell phones to searches of cigarette packs, wallets, and other items found in arrestees' pockets, the Court concluded: "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon."


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

Wednesday, June 25, 2014

Keeping the Faith: 5th Circuit Deems Evidence of Co-Defendant's Prior Solo Robbery Inadmissible as Habit Evidence

A first man agrees to give a second man a ride. After the ride, the second man robs a bank. The prosecution claims that the first man knew that the second man planned to rob the bank. The first man contends that he was unaware of the second man's criminal intentions. As evidence of this ignorance, the first man seeks to present evidence of a solo bank robbery committed by the second man two weeks before the crime charged. How should the court rule? Let's take a look at the recent opinion of the Fifth Circuit in United States v. Anderson, 2014 WL 2808128 (5th Cir. 2014).

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

Tuesday, June 24, 2014

FBI's Glossary of Internet Terms

In response to a Freedom of Information Act request, the FBI recently released a glossary of Twitter (Internet) slang that it provides to its agents.  Links to reporting on the glossary are here.

The list is voluminous and hard to read so I only skimmed it, coming across:

Acronyms with multiple meanings that are bound to leave agents guessing, such as:

DOS = Dozing off soon; Dad over shoulder; Disk Operating System

others that seem difficult to imagine arising often in an online world 

DPYN = Don't Pick Your Nose

and helpful explanations of obscure meanings

HAN = alone (Han Solo)

Whatever its shortcomings, one can envision judges and litigants consulting this list to decipher the text messages, internet chats, etc., they increasingly confront in modern litigation.

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

Silent Night: Supreme Court Adopts Test For Authenticating Surveillance Recordings

A defendant allegedly steals a vacuum cleaner from a store. At trial, the prosecution seeks to authenticate and admit a surveillance recording of the robbery. How does the prosecution go about authenticating the recording? As noted by the Supreme Court of New Hampshire in State v. Stangle, 2014 WL 2782016 (N.H. 2014),

"Virtually all jurisdictions allow the introduction of recordings pursuant to ‘silent witness' authentication, but jurisdictions differ on what evidentiary showing is required to satisfy the ‘silent witness' standard."...The approaches fall into two general categories....Some jurisdictions adopt a flexible, less formulaic approach focusing on the facts of each case....

Other jurisdictions adopt a multi-factor test for determining the admissibility of photographs or videos....Some of the factors those jurisdictions consider are: "(1) how the recording system operates, (2) the system's working condition and pattern of maintenance, (3) who operates the system, has access to it, and maintains its archive[s]... (4) the quality of the recording, and (5) the means by which the recording was copied to the format viewed at trial."...However, even those jurisdictions that have adopted "a multi-factor analysis tend to acknowledge that the facts of each case may differ."...They "neither require every factor be met nor rule out taking other circumstances into account in particular cases."

So, which approach did the court adopt?

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

Monday, June 23, 2014

Don't Forget This Fact, You Can't Get It Back: 3rd Circuit Precludes Jury Impeachment in Crack/Powder Cocaine Case

Federal Rule of Evidence 606(b) reads as follows:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

Rule 606(b) is thought to (1) protect jurors from harassment; (2) allow the freedom of deliberation; and (3) secure the finality of verdicts. But are those values served in a case like United States v. Morris, 2014 WL 2783460 (3rd Cir. 2014)?

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June 23, 2014 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 18, 2014

Tattoo You: Prosecutors in Brooklyn Murder Trial Use Defendant's Tattoos, Rap Lyrics as Evidence

I've written before on this blog about the slew of recent cases in which prosecutors seek to admit a defendant's rap lyrics as evidence against him in his criminal trial. The prosecutors in a current case in Brooklyn, however, have taken this tactic to a new level.

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

Tuesday, June 17, 2014

Prospective vs. Retrospective: Supreme Court of Colorado Finds Statements About Past Cocaine Use Admissible Under Rule 803(4)

Similar to its federal counterpartColorado Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

So, let's say that a patient falls into a vegetative state. And then, after the patient is in that vegetative state, the patient's roommate/ex-girlfriend asks the treating physician whether the patient's past cocaine use could have contributed to the patient's resistance to normal resuscitation efforts. Should this question and related statement be deemed admissible under Rule 803(4)? Let's take a look at the recent opinion of the Supreme Court of Colorado in Kelly v. Haralampopoulos, 2014 WL 2709431 (Colo. 2014).

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

Monday, June 16, 2014

It's Just Been Revoked: Is Hearsay Sufficient to Revoke Probation?

North Carolina Rule of Evidence 1101(b)(3) indicates that the North Carolina Rules of Evidence do not apply at probation revocation proceedings. In State v. Murchison, the Court of Appeals of North Carolina had reversed a trial court order revoking the defendant's probation because the trial court relied solely upon hearsay; the Supreme Court of North Carolina then reversed the appellate court's order. Was this proper?

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

Friday, June 13, 2014

It's Gotta Be the Shoes: Court of Appeals of Texas Finds Dallas Cowboys Reeboks Properly Authenticated

Texas Rule of Evidence 901(a) provides that

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.

In turn, Texas Rule of Evidence 901(b)(1) provides that

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:  

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

And, as the recent opinion of the Court of Appeals of Texas, Houston, in Dominguez v. State, 2014 WL 2582975 (Tex.App.-Houston [1 Dist.] 2014), makes clear, a witness can authenticate an exhibit by testifying that she saw the exhibit at earlier time and recognized it.

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

Thursday, June 12, 2014

Mixed Metaphor?: Ohio Court Finds No Confrontation Clause Problem Using Hybrid Roberts/Crawford Analysis

According to Ohio v. Roberts,

even if a declarant's hearsay statements are admissible against a defendant under an exception to the rule against hearsay, they run afoul of the Confrontation Clause if the declarant is not present for cross-examination at trial unless the State establishes two elements. First, the State must establish that the declarant is "unavailable." Second, it must prove that the statement "bears adequate indicia of reliability." The Court concluded that "[r]eliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception." If a statement does not fall within such an exception, "the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness."

In Thompson v. Warden, Warren Correctional Inst., 2014 WL 2515317 (S.D.Ohio 2014), Roberts has been overruled by Crawford v. Washington. In Crawford, the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. In other words, the Confrontation Clause is violated when testimony or testimonial hearsay is admitted against a defendant and he is not given the chance to cross-examine the declarant.

So, how does one explain the opinion in Thompson?

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

Wednesday, June 11, 2014

Did You Notice That?: Cathedral Bible College Case Calls Into Question Rule 404(b)'s Notice Requirement

According to an article on Carolina Live,

A federal grand jury indicted Dr. Reginald Wayne Miller Tuesday on two counts of forced labor against international students at Cathedral Bible College in Marion where Miller serves as President.  

The indictment says Miller did knowingly provide and obtain labor and services of individuals known as John Doe #1 and John Doe #2, by means of abuse and threatened abuse of law and legal process.

Miller's attorney filed motions Tuesday in federal court asking prosecutors to disclose their intent to use any evidence of other crimes, wrongs, or acts under federal rules of evidence.

So, what evidence is Miller's attorney likely seeking, and when is he likely to receive it?

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

Tuesday, June 10, 2014

Vehicular Black Box: Superior Court of Pennsylvania Finds Event Data Recorder Evidence Admissible to Prove Speed

Until reading this article from the Pittsburgh Post-Gazette, I wasn't aware that a vehicle has an "event data recorder" akin to an airplane's "black box." And now, according to the Superior Court of Pennsylvania in Commonwealth v. Safka, such evidence is admissible to determine a car's speed at the time of an accident.

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

Monday, June 9, 2014

Engineered to Amaze?: Court In Lawsuit Against Quicken Loans Finds Rule 406 Doesn't Cover Testimony About Industry Practice

Federal Rule of Evidence 406 provides that

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

As the recent opinion of the United States District Court for the Southern District of West Virginia in Kingery v. Quicken Loans, Inc., 2014 WL 2521699 (S.D.W.Va. 2014), makes clear, Rule 406 "refers to the routine practice of a specific organization, not the customs and practices of an industry."

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