EvidenceProf Blog

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

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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)

Wednesday, July 16, 2014

Letter of the Law, Take 2: Supreme Court of Wisconsin Finds Defendant's Testimony Inadmissible Under Plea Deal

Last September, I posted an entry about the opinion of the Court of Appeals of Wisconsin in  State v. Myrick, 2013 WL 4734062 (Wis.App. 2013). Here was the statement of facts I gave in that post:

assume that a prosecutor sends defense counsel a letter "making the following offer of resolution based on [the defendant] being willing to cooperate in the prosecution of numerous cases involving [another defendant]." Also, assume that the letter indicates that the prosecutor will make a sentencing recommendation if the defendant, inter alia, testifies at the preliminary examination for another defendant. Finally, assume that the defendant complies with this requirement but then stops cooperating with the prosecution after he believes that the State leaked incriminatory information to the press for [a] newspaper article. At the defendant's ensuing trial, can the prosecution introduce the defendant's preliminary examination testimony, or is such testimony inadmissible under Wisconsin Rule of Evidence 904.10?

Wisconsin Rule of Evidence 904.10 provides that

Evidence of a plea of guilty, later withdrawn, or a plea of no contest, or of an offer to the court or prosecuting attorney to plead guilty or no contest to the crime charged or any other crime, or in civil forfeiture actions, is not admissible in any civil or criminal proceeding against the person who made the plea or offer or one liable for the person's conduct. Evidence of statements made in court or to the prosecuting attorney in connection with any of the foregoing pleas or offers is not admissible.

Applying this text, the Court of Appeals of Wisconsin deemed the testimony inadmissible and reversed the conviction of Raphfael Myrick, the defendant. So, what did the Supreme Court of Wisconsin just conclude in State v. Myrick, 2014 WL 3360376 (Wis. 2014)?

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

Tuesday, July 15, 2014

Reckless, Episode 3: Stand Your Ground in South Carolina & the Protection of Persons and Property Act

In Sunday's episode of "Reckless," entitled Stand Your Ground, a husband hears an intruder in the middle of the night and shoots him dead in the foyer of his home. The husband claims that he thought that the intruder had a gun, but the police discover no such firearm, and the victim was shot in his back. This sets the stage for an immunity hearing under the Protection of Persons and Property Act, South Carolina's Stand Your Ground law. The folks at "Reckless" contacted me to ask for a type of case in which plot twists might alter the application of the Protection of Persons and Property Act, and here is what I told them.


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

Monday, July 14, 2014

The Agony & the Obama Ecstasy: Court of Appeals of Utah Finds Fingerprints Properly Authenticated In Drug Appeal

Police officers find a large plastic bag full of pills in the shoebox in the defendant's closet. The bag contains 478 pills of Obama ecstasy, with the pills shaped like the head of President Barack Obama. Fingerprints are lifted from the bag,  and a certified latent fingerprint examiner compares these latent fingerprints to a ten-print card that contains the defendant's known fingerprints. The examiner thereafter finds 17 matching points between the latent fingerprints and one of the defendant's fingerprints from the ten-print card. According to the examiner, ten matching points is considered all but conclusive and at twelve matching points the odds "exceed the population of the earth that it could be anyone else." It's an open and shut case, right? But what about authentication. Let's take a look at the recent opinion of the Court of Appeals of Utah in State v. Woodard, 2014 WL 3361718 (Utah. App. 2014).


Obama ecstasy doesn't actually contain ecstasy, but contains BZP, TFMPP, and caffeine

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

Friday, July 11, 2014

Tweeter and the Monkey Man: Heroin Death of Google Exec Might Prompt Doctrine of Chances Ruling

Prostitute Alix Tichelman has been charged with manslaughter in connection with the death of Google executive Forrest Hayes,  often called the "Monkey Man" because he raised monkeys and other non-native wild animals on his property. Hayes died of an overdose, with the question being whether Hayes self-administered the smack or whether it was injected by Tichelman in attempt to make it look like Hayes killed himself. Tichelman, whose own Twitter account has pictures of her "pet monkeys," also has a Facebook page, which has posts ranging from poems about heroin to a love of the TV show "Dexter." 

Interestingly, Tichelman was previously involved with Dean Ripelle, who died of a heroin overdose back in September 2013. Police have now re-opened the investigation of Ripelle's case to see whether it was the result of foul play.

This thus sets the stage for the possibility of the doctrine of chances (which I call the John McClane rule of evidence) being invoked at either trial. As I have noted before,

Rex v. Smith...introduced into evidence law roughly the same sentiment expressed by John McClane in "Die Hard 2":  "How can the same thing happen to the same guy twice?"  In Rex v. Smith, the defendant's wife died when she drowned in the bathtub, and the court allowed the prosecution to introduce evidence that two of his prior wives died when they drowned in the bathtub to rebut the defendant's claim that the drowning was accidental.  The court reasoned that the past acts were admissible not to porve propensity/conformity, but instead because the court could infer from the unusualness of the occurrence and the number of times it was repeated that the drowning was not accidental.

So, what's stranger: Three wives innocently drowning in bathtubs, or two boyfriends(?) self-overdosing on heroin? If there is no physical evidence indicating that Tichelman injected heroin into either of the deceaseds, should the judge find the two instances of ODing are sufficiently strange such that a juror could infer that they were not accidental?  We might soon find out.


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

Thursday, July 10, 2014

Not So Fast: Supreme Court of Florida Rejects Proposed Forfeiture by Wrongdoing Exception

The recent opinion of the District Court of Appeal of Florida, Fourth District, in Mortimer v. State, 2014 WL 3174356 (Fla.App. 4 Dist. 2014), reveals something that I had missed last year: The Supreme Court of Florida rejected Florida's proposed forfeiture by wrongdoing exception.

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

Wednesday, July 9, 2014

Duty Bound: Huntsville Times Article About Minister Sexual Abuse Deals With Priest-Penitent Privilege

An article from Monday's Huntsville Times is entitled "Who under Alabama law must report child abuse or face possible jail time?" The article deals with allegations of covered-up sexual abuse committed by the church's youth minister Mack Allen Davis. And the article also deals with Alabama Rule of Evidence 505.

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

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)