Friday, November 22, 2013
Yesterday, I posted an entry about the intersection between Federal Rule of Evidence 902(7), which allows for self-authentication of inscription, sign, tag, or labels, and the rule against hearsay. In the entry, I discussed two cases in which courts found that self-authenticated inscriptions did not implicate the rule against hearsay when they were merely admitted as trace evidence, to prove the origin of an item (a gun manufactured in Spain and a hard drive made in Malaysia). But what if the evidence is offered for some other purpose? Let's take a look at the opinion of the Superior Court of Pennsylvania in Commonwealth v. Harvey, 666 A.2d 1108 (Pa.Super. 1995).
Thursday, November 21, 2013
We Come From France: What's the Intersection Between Self-Authentication & The Rule Against Hearsay?
Federal Rule of Evidence 902(7) provides that "[a]n inscription, sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control" is self-authenticating and requires no extrinsic evidence of authenticity in order to be admitted. That said, couldn't a sign, tag, or label be hearsay -- a person’s oral assertion, written assertion, or nonverbal conduct offered to prove the matter asserted -- making it inadmissble under Federal Rule of Evidence 802 in the absence of an exception or exclusion? This was the question that I was discussing with my colleague Derek Black yesterday. The answer, or at least the one provided by a handful of courts, can be found in United States v. Alvarez, 960 F.2d 830 (9th Cir. 1992).
Wednesday, November 20, 2013
According to an article in yesterday's Virginian-Pilot,
A Circuit Court judge on Monday ruled that the attorneys for a man accused of shooting an off-duty Norfolk police officer in 2010 won’t be allowed to submit polygraph test results as evidence.
The ruling is in line with a 1998 U.S. Supreme Court decision that upheld bans on polygraph evidence, Judge Stephen C. Mahan said in court. Virginia’s Rules of Evidence do not allow it.
So, where exactly does Virginia stand on polygraph evidence?
Tuesday, November 19, 2013
For those who think a lot about blogging or spend time surfing the blogosphere, I recommend the compelling post with the above title by Nancy Leong (Denver Law) on anonymity and online harassment over at Feminist Law Professors Blog: available here.
Monday, November 18, 2013
According to a press release from earlier today,
U.S. Senators Senator Deb Fischer (R-Neb.), Claire McCaskill (D-Mo.) and Kelly Ayotte (R-N.H.) announced a new set of bipartisan provisions to strengthen and augment the already historic reform package that passed the Armed Services Committee in June to curb military sexual assault....
The amendment includes a host of reforms, attached and available online HERE, and including:
•Eliminating the Good Soldier Defense
◦Modifies the Military Rules of Evidence to prevent defendants from using good military character unless it is directly relevant to an element of the crime for which they are charged.
So, what is this so-called good soldier defense?
Friday, November 15, 2013
Federal Rule of Evidence 702 provides that
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court laid out several nonexhuastive factors that a court may consider in assessing the reliability of evidence: (1) whether the technique can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the technique's operations; and (5) “general acceptance” within the relevant scientific community. In United States v. Johnsted (Download Johnsted Opinion), the United States District Court for the Western District of Wisconsin addressed the admissibility of expert testimony and an expert report by a handwriting expert. So, how did the court rule?
Thursday, November 14, 2013
Can You Settle an Argument?: SDNY Finds Rule 408 Doesn't Support Imposition of Gag Order In Patent Case
Federal Rule of Evidence 408 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.
(b) Exceptions. The court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
As I have noted before, Rule 408 only governs the admissibility of settlement-related statements at trial, not their inclusion in pleadings or other documents. What this also means is that a party cannot get a gag order pursuant to Rule 408 that would prevent the opposing party from disclosing those statements to the court of public opinion.
Wednesday, November 13, 2013
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.
Federal Rule of Evidence 414(a) provides that
In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant.
And Federal Rule of Evidence 415(a) provides that
In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414.
I've written before about which states have created counterparts to some or all of these Rules. The partial adopters usually only adopt Rules 413(a) and 414(a), meaning that prior sex crimes are admissible at criminal, but not civil trials. As yesterday's opinion in The People of Guam v. Chinel makes clear, however, the island nation has adopted Rules 413(a) and 415(a) but not 414(a). What does this mean, and how does the territory apply them?
Tuesday, November 12, 2013
Professor Marianna Brown Bettman has another terrific post up on her blog, Legally Speaking Ohio. This one concerns a Confrontation Clause case recently resolved by the Supreme Court of Ohio: State v. Clark. As Professor Bettman notes,
In a 4-3 decision written by Justice O’Donnell, for himself and Justices Pfeifer, Kennedy and O’Neill, the Court held that a child’s statement to his teachers about physical abuse constitutes testimonial evidence barred by the Confrontation Clause when the child has been found incompetent to testify. Chief Justice O’Connor wrote a very heated dissent, for herself and Justices Lanzinger and French.
Professor Bettman points out that the dissent might be the most interesting part of the case and not just because Justice O'Connor practically begs the United States Supreme to grant cert. What's even more interesting is the why. Here's the introduction to Justice O'Connor dissenting opinion:
The majority decision creates confusion in our case law, eviscerates Evid.R. 807, and threatens the safety of our children. Not surprisingly, it is also wrong as a matter of federal constitutional law. I dissent.
A teacher is not an agent of law enforcement for the purpose of determining whether a statement is testimonial under the Confrontation Clause merely because that teacher has a statutory duty to report child abuse. On the record before us, there is no basis from which to conclude that the injured child’s teachers acted on behalf of law enforcement. Therefore, there is no support in the law or on these facts for the conclusion that the statements made to the teachers by L.P., the injured child, or similar statements made to teachers in any Ohio schoolroom, should be scrutinized under a test that is otherwise applicable only when the interviewer is an agent of law enforcement. See Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
Instead, statements to teachers should be scrutinized under the objective-witness test, which is applicable when the questioner is not an agent of law enforcement. In this appeal, the teachers questioned L.P. about his injuries to protect L.P. and possibly other students from additional injury, and to maintain a secure and orderly classroom in which learning could take place. No objective witness could reasonably believe that the interviews served a prosecutorial purpose rather than a protective one. Thus, under the law of this court and the United States Supreme Court, I would hold that the classroom statements made by this small child, L.P., to his teachers are nontestimonial and thus are not excluded by the Confrontation Clause.
This is certainly a foundational issue that the U.S. Supreme Court should address and soon. We'll have to wait and see whether it does so or whether Justice O'Connor's plea falls on deaf ears.
Monday, November 11, 2013
I am curious when Evidence professors teach the Confrontation Clause, and how much coverage they allot to it. David Sklansky’s teacher’s manual suggests covering the Confrontation Clause after introducing hearsay but before going through the exemptions/exceptions. A quick check of a half dozen textbooks on my shelf found that all the others place the Confrontation Clause reading after the exemptions/exceptions.
Since I’m in the middle of teaching the course for only the second time, I don’t have any developed thoughts about the timing and extent of coverage, and would love to read the comments of those who have taught the class more times about why they have made the choices they’ve made on this subject.
For what it’s worth, I teach a 4 credit Evidence course, we spent about 2.5 hours covering the Confrontation Clause material I assigned, and I cover it after going through the hearsay exceptions. I’m inclined to cut the class time devoted to Confrontation down to 2 hours max next time through, and am open to covering it before we run through 803 and 804.
Friday, November 8, 2013
Pursuant to the Bruton doctrine, at a joint jury trial, the Confrontation Clause is violated by the admission of a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. That said, in the wake of the Supreme Court's opinion in Crawford v. Washington, almost every court has found that Bruton only covers testimonial hearsay. I disagree with this conclusion, but, even assuming that it is correct, I wonder what such a conclusion actually means. Let's take a look at the recent opinion of the United States District Court for the Eastern District of Kentucky in United States v. Thompson, 2013 WL 5528827 (E.D.Ky. 2013), as an example.
Thursday, November 7, 2013
Federal Rule of Evidence 608(b) provides that
Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
(1) the witness; or
(2) another witness whose character the witness being cross-examined has testified about.
By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.
The recent opinion of the United States District Court for the District of Arizona in United States v. Dellinger, 2013 WL 5929946 (D.Ariz. 2013), does a good job of explaining the ins and outs of this Rule.
Wednesday, November 6, 2013
28 Days Later: Connecticut Court Finds Photos Taken 28 Days After Assault Irrelevant To Prove Lack of Serious Physical Injury
A defendant in Connecticut is charged with second-degree assault, which requires the prosecution to prove that the victim suffered a "serious physical injury." Connecticut law does not define the phrase "serious physical injury," but its courts have concluded that "[i]t is entirely possible to cause serious physical injury without causing disfigurement or a permanent injury." The defendant has photographs of the victim's face and profile taken 28 days after his assault, both seemingly unmarred by any visible facial injuries. Are these photos relevant? According to the recent opinion of the Appellate Court of Connecticut in State v. Lewis, 2013 WL 5798962 (Conn.App. 2013), the answer is "no." I disagree.
Tuesday, November 5, 2013
Federal Rule of Evidence 609(a)(1) provides that
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....
As the United States District Court for the District of Illinois noted in its recent opinion in Cefalu v. Village of Glenview, 2013 WL 5878603 (N.D.Ill. 2013), a district court has broad discretion in determining whether evidence of prior convictions is admissible under Rule 609(a)(1). That said, I still find the court's opinion in Cefalu to be baffling.
Monday, November 4, 2013
Federal Rule of Evidence 1002, the Best Evidence Rule, provides that
An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
That said, a party can also satisfy the Best Evidence Rule by producing a duplicate under Federal Rule of Evidence 1003 or accounting for its nonproduction of the original under Federal Rule of Evidence 1004. So, what happens when a party fails to comply with any of these Rules? Let's take a look at the recent opinion of the United States Tax Court in Phillips v. C.I.R., 2013 WL 5827656 (U.S.Tax.Ct. 2013).
Friday, November 1, 2013
A Guest Post by Kevin Lapp: Multiple Choice Exams are (a) good assessment tools, (b) bad assessment tools, (c) all of the above.
Multiple choice testing is a popular assessment format in Evidence courses, more popular in my experience in Evidence than in other courses. Some professors use it exclusively, while others mix multiple-choice testing with essay questions on their exams. There’s good reason for using multiple choice testing in Evidence courses. For one, the MBE portion of the bar exam contains multiple choice Evidence questions, so doing so as part of a final exam helps prepare students for the bar exam format. In addition, multiple choice testing has been around, and is widely accepted as a credible format to assess student knowledge. Evidence is also a heavily rule-based class that lends itself to an assessment format that requires students to identify a single correct answer. Finally, multiple choice questions allow professors to assess more topics than can be squeezed into an essay question, reducing the chances that a student performs well on an exam because he happened to know the issues covered by the essay questions.
But there can be a large gap between good multiple choice questions and bad multiple choice questions. This post is about how those of us who do use multiple choice questions can know if we are doing it in a way that makes for good assessment. The credibility of our multiple choice questions as sound assessment tools is particularly important given the high stakes testing that goes on in so many law school classrooms. When the great bulk, if not the entire portion, of a student’s grade hinges on a single 3 or 4 hour exam, it is our duty to take advantage of the available tools to ensure that our exams function as credible assessment tools.
Thursday, October 31, 2013
Like many readers of this blog, I work on both Evidence and Criminal Procedure issues, and have been most recently working on a piece about NYC Stop and Frisk. I was taken off guard by today's appeals court ruling staying Judge Scheindlin's Stop and Frisk Ruling, and removing her from the case. Would be curious if there are any informed readers who have a sense of what is going on . . . .
Again, I'm digging back to my days as a film critic to pull out a horror movie review. I would only mildly recommend the movie, The Jacket, but I would highly recommend its source material, Jack London's The Star Rover. You can read it for free by clicking here.
The Jacket(Warner Home Video, 6.21.2005)
Loosely based upon Jack London's final novel, "The Star Rover," The Jacket similarly focuses on an incarcerated alleged murderer able to time-travel while in straitjacketed solitary confinement. Jack Starks (Adrien Brody) awakens with memory deficiencies after his apparent Desert Storm death and is subjected to mental asylum experimentation. Cocktails of anti-psychotic drugs and morgue drawer immobilization revive violent flashes of his past, while enabling him to experience -- and possibly alter -- the future.
Wednesday, October 30, 2013
Redacted: Supreme Court of Georgia Finds Redacted Co-Defendant Confession Poses No Problem Under Bruton
Pursuant to the Bruton doctrine, there is a Confrontation Clause violation when, at a joint jury trial, the prosecution introduces a co-defendant's statement that facially incriminates another defendant unless the co-defendant testifies at trial. That said, in Richardson v. Marsh, 481 U.S. 200 (1987), the Supreme Court held that
that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence.
This was the fundametal problem for the defendant in Teasley v. State, 2013 WL 5508603 (Ga. 2013).
Tuesday, October 29, 2013
Federal Rule of Evidence 807 reads as follows:
(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:
(1) the statement has equivalent circumstantial guarantees of trustworthiness;
(2) it is offered as evidence of a material fact;
(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and
(4) admitting it will best serve the purposes of these rules and the interests of justice.
(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.
Statements are rarely deemed admissible under this residual exception. But, according to the recent opinion of the United States Bankruptcy Court for the District of New Mexico in In re Vaughan Co. Realtors, 2013 WL 5744727 (Bkrtcy D.N.M. 2013), the is at least one circumstance where this exception is frequently invoked.