EvidenceProf Blog

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

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Friday, November 7, 2014

Credibility Proxies: Violence

Yesterday, we saw the Colorado Supreme Court grappling with whether an act of shoplifting is admissible as evidence bearing on a witness’s credibility.  In that same opinion, People v. Segovia, the C.S.C. noted that acts of violence have typically been excluded when offered to impeach credibility.  

This frequently-cited notion, that acts of violence are not particularly relevant to credibility, is worth interrogating further.  To do so, I turn to another opinion from the past decade.  This one is a frequently-cited opinion by then Judge Sotomayor of the Second Circuit, U.S. v. Estrada, 430 F.3d 606.  The case was an appeal of the convictions of two men who were found to have conspired to sell cocaine and heroin.  At trial, the government called cooperating witnesses.  Defense counsel sought to impeach the two witnesses with evidence that between them they had burglary, larceny, felony drug and murder convictions.  Acknowledging that F.R.E. 609(a)(1) suggest that felony convictions are presumptively relevant to credibility, the trial court held in camera hearings to probe into the nature of the larceny, felony drug and murder convictions.  It found that they weren’t especially probative of truthfulness.  The court therefore ruled that defense counsel could not name the particular felonies committed or ask about the nature of the convictions, but instead could simply elicit the fact of the convictions and the dates.

The Second Circuit disagreed with the blanket prohibition on naming the felonies. 

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November 7, 2014 | Permalink | Comments (2) | TrackBack (0)

Thursday, November 6, 2014

Show Me, Take 3: Missouri's Evidentiary Amendment & the Victims' Bill of Rights

On Wednesday, Jeff posted an entry about voters in Missouri approving an amendment to the state's constitution which creates a state counterpart to Federal Rule of Evidence 414 (allowing for the admission of evidence of other acts of child molestation in child molestation prosecutions). In the post, he noted that "Colin probably knows if this is the only example of this type of rule enacted directly by voters, but it is interesting to see the level of popular support for the rule."). 

I don't, but my guess is that this is the first popular vote on this type of law, and that's because of the uniqueness of what happened in Missouri. First, Missouri is (I think) aberrational in that

although Missouri's Constitution leaves it to this Court to develop rules of procedure, it specifically prohibits the Supreme Court from creating rules of evidence. Mo. Const. art. V, sec. 5. See State v. Williams, 729 S.W.2d 197, 201 (Mo. banc 1987) ("[T]he legislature has plenary power to prescribe or alter the rules of evidence....").  State Bd. of Registration for Healing Arts v. McDonagh, 123 S.W.3d 146 (Mo. 2003).

Second, the Missouri legislature already passed a similar law twice, only to have the Supreme Court of Missouri strike it down.

So, aside from Missouri's constitutional amendment, what is the most significant evidentiary amendment that voters have approved? Probably this:

On June 8, 1982, California voters amended the California Constitution by passing Proposition 8, popularly known as the Victims' Bill of Rights, thereby creating potentially the most dramatic change in the rules of evidence in the history of this state. Prior to Proposition 8, California rules of evidence protected criminal defendants by restricting the admissibility of prior misconduct impeachment evidence to felonies. The public, "perceiving an imbalance in favor of defendants in the rules regarding the admissibility of evidence," voted for relaxing the rules of evidence. Hank M. Goldberg, The Impact of Proposition 8 on Prior Misconduct Impeachment Evidence in California Criminal Cases, 24 Loy. L.A. L. Rev. 621 (1991).


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

Credibility Proxies: Shoplifting

In 2008 the Supreme Court of Colorado decided an interesting case called People v. Segovia, 196 P.3d 1126.  Jose Segovia was being prosecuted for sexual assault on a child.  At trial, defense counsel engaged in the following colloquy with the victim, a thirteen-year-old girl: 

[Defense counsel]: Now, you have promised the Judge to tell the truth to this jury, haven't you?

[Witness]: Yes.

[Defense counsel]: And in order to tell the truth to the jury, that requires you to be honest, correct?

[Witness]: Yes.

[Defense counsel]: Okay. And—but you're not always honest, are you?

[Witness]: What do you mean?

[Defense counsel]: Well, I mean in mid-July, around July 15th of 2007, at your mother's store in Avon, you and Josh stole $100 from your mother's store, didn't you?

[Witness]: No.

The prosecutor objected at this point and defense counsel argued that the question was permissible under Colorado Rule of Evidence 608(b), which is pretty much the same as F.R.E. 608(b).  The trial court sustained the objection and declared a mistrial.

The Colorado Supreme Court took up the case in part to decide “whether an act of shoplifting is proper impeachment evidence under rule 608(b).” 

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November 6, 2014 | Permalink | Comments (4) | TrackBack (0)

Wednesday, November 5, 2014

Missouri Voters Enact Analogue to Federal Rule 414

Among yesterday's election results, Missouri voters passed (72% to 28%) a measure analagous to Federal Rule of Evidence 414 (Similar Crimes in Child-Molestation Cases).  Information about the measure is available here

Colin probably knows if this is the only example of this type of rule enacted directly by voters, but it is interesting to see the level of popular support for the rule.

The precise language is: 

"Section 18(c). Notwithstanding the provisions of sections 17 and 18(a) of this article to the contrary, in prosecutions for crimes of a sexual nature involving a victim under eighteen years of age, relevant evidence of prior criminal acts, whether charged or uncharged, is admissible for the purpose of corroborating the victim's testimony or demonstrating the defendant's propensity to commit the crime with which he or she is presently charged. The court may exclude relevant evidence of prior criminal acts if the probative value of the evidence is substantially outweighed by the danger of unfair prejudice."

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

Credibility Proxies: Introduction

Hello All!  I’m very happy to be joining you for some fall blogging, beginning with an intro to the subject of credibility proxies. 

The need to judge credibility is both inevitable and central in our adversarial legal system.  The fact-finder gets information largely through witness testimony elicited in court by advocates seeking either to bolster or undermine a particular narrative.  Almost inevitably, that testimony conflicts, leaving the fact-finder in the position of lie detector. 

It was not always so.  In The Jury's Rise As Lie Detector, 107 Yale L.J. 575 (1997), George Fisher offers an account of how we arrived at a status quo in which juries and judges arbitrate credibility conflicts.  Importantly, jury trials were structured around the divine oath which avoided the impression that trial outcomes were simply the result of human judgments about credibility.  As mechanisms designed to promote this myth eroded (by permitting sworn testimony by defense witnesses and later defendants, for example), we entered an era in which the power and necessity for assessing credibility rested more and more squarely with the jury, and the jury was increasingly shielded from the need to offer any explanation for its verdicts.  Thus, as Fisher argues, the jury became a lie detector whose decisions were protected by a black box of inscrutability.  This shroud around the jury, in turn, facilitated the perception that juries perform their task well. 

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November 5, 2014 | Permalink | Comments (1) | TrackBack (0)

Tuesday, November 4, 2014

iPrivilege: Virginia Beach Judge Finds Prosecution Can Force Defendant to Supply Fingerprint to Unlock iPhone

In relevant part, the Fifth Amendment states that

No person...shall be compelled in any criminal case to be a witness against himself....

The Supreme Court has stated that the Fifth Amendment only covers "testimonial" evidence that results from compelled communicative acts, i.e., acts which disclose the content of one’s mind.   Therefore, the Fifth Amendment does not cover a suspect’s act of appearing in a lineup or giving a blood sample to determine whether there are drugs in his system. The Fifth Amendment also does not cover the act of completing a handwriting exemplar. Imagine that the police find an alleged confession note written by the defendant. The prosecution can force the defendant to complete a handwriting exemplar in which the defendant writes a pre-printed paragraph in his handwriting so that a handwriting expert can compare the exemplar and the confession note. All of these and similar acts are not communicative because they are nontestimonial in that they do not force the defendant to disclose the contents of his mind.

What about if the defendant has encrypted files on his computer? Can the prosecution force the defendant to decrypt them? Some courts have said no. Other courts have said yes.

Can the prosecution force a defendant to supply his fingerprint to use for the TouchID on his iPhone? For the last year, I've used this article to teach my students that a judge could likely order a defendant to supply his fingerprint to unlock his iPhone. Recently, this possibility has become a reality.



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November 4, 2014 | Permalink | Comments (1) | TrackBack (0)

Monday, November 3, 2014

Please Welcome Guest Blogger Julia Simon-Kerr

Please welcome Julia Simon-Kerr as a guest blogger for the next month or so. Professor Simon-Kerr  is an Associate Professor of Law and the Ralph and Doris Hansmann Scholar at the University of Connecticut School of Law. After graduating from Wesleyan University, she wrote and edited children’s books for Harper Collins in New York before going to Yale Law School, where she was the Executive Editor of the Yale Journal of Law & the Humanities. After finishing law school, she was a clerk for Justice Jaynee LaVecchia of the Supreme Court of New Jersey before completing a clerkship for the Judge Kermit V. Lipez of the First Circuit. After serving as a Bigelow Fellow at the University of Chicago Law School, Professor Simon-Kerr started her current job in 2012. 


Professor Simon-Kerr's publications include:

•Note, Unchaste and Incredible: The Use of Gendered Conceptions of Honor in Impeachment, 117 YALE LAW JOURNAL 1854 (2008) (which I discussed here);

 •Moral Turpitude, 2012 Utah L. Rev. 1001 (2012);

A Simple Theory of Complex Valuation, 113 Mich. L. Rev. (forthcoming 2014) (with Anthony J. Casey); and

Systemic Lying, 56 William & Mary L. Rev. (forthcoming 2015).

Her posts will be signed -JSK.


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

Friday, October 31, 2014

A Vampire Lawyer Novel For Halloween: Vampire Esquire, by Michael Wells, Jr.

As far as I can tell, there has never been a book about a vampire lawyer. In DraculaJonathan Harker was a solicitor while "lawyer" was one of the many hats that Abraham Van Helsing wore. But both of these men were vampire hunters, not vampires themselves. I'm also not aware of a vampire laywer on film, unless you count this recent "Funny or Die" clip with Chris Pine. There apparently is a case of a real-world vampire lawyer, but the less said about that the better.

Returning to the realm of the fictional, Michael Wells, Jr., a partner at Wells Liipfert, PLLC (and the author of the blogs Southern Lawyer NC and Vampire Esquire), has written the vampire novel, Vampire Esquire. The book is copyrighted, and Wells plans to submit it to publishers soon. I asked Wells, who tweets at @slnc01, two questions about the book, and here are his responses:

1. What led you to write a book about a vampire lawyer?

I always enjoyed creative writing, and I wanted to write a novel.  I have published articles and stories but never a novel.  Stephen King and John Grisham are two of my favorite writers so I thought I would combine elements of each.  One of my favorite archetypes in literature is the vampire because it is both the antithesis of human existence in that it is undead and human at the same time because it retains vestiges of humanity.  I also thought I could use vampires to point out problems with our political system because my book is largely about the destructive force of big money in politics.  Likewise, the book equates vampirism with destroying government programs meant to help those down on their luck.  I also enjoyed creating vampire hunters based on Stoker’s  Van Helsing and Roland Deschain from Stephen King’s the Dark Tower Series.  My main character is 2,000 years old, a good vampire, a lawyer and a former Roman Senator.  There should be something in the book for everyone.

2. What is the book's plot?

Pierre Leblanc the “vampire esquire” is a 2,000 year old vampire turned during the ‘Great Fire of Rome’ in 64 AD.  He is wrest away from his loving Roman wife and great life as a successful  lawyer and his career as a Roman Senator.  He later escapes his maker.  He lives in Europe for hundreds of years until he finally makes it to the United States and eventually to Chicago.  A vampire billionaire, named Vladimir Lenin, wants to take over the United States through his Parisian company, Nero Corporation, where he attempts to buy the Presidential election and Congressional elections.  He manages to buy off Congress and gets them to dismantle government programs, Medicaid in particular, thereby creating a critical mass of people off the grid to make into vampires.  The President stays in power and is the check to the tyrannical Congress.  

Pierre along with vampire hunters William Magnum (grisly vampire hunter), Roland Walker (disgraced Iraqi war vet in search of redemption) and the President, who is also a vampire hunter, are aided by the Society of the Silver Stake (a secret vampire hunting society).  A vampire v. human war ensues.  Humans win.  In a last ditch effort,  vampires enter the White House to kill the President, but they are thwarted by the vampire hunters, the Society and Pierre Leblanc.  The plan fails.  Lenin is revealed to be Leblanc’s maker, and Leblanc kills Lenin.  

One key member of Lenin’s progeny escapes setting up the sequel.

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

Thursday, October 30, 2014

Authentication Via Blockchain Technology

A block chain is a transaction database shared by all nodes participating in a system based on the Bitcoin protocol. A full copy of a currency's block chain contains every transaction ever executed in the currency. With this information, one can find out how much value belonged to each address at any point in history.  

Every block contains a hash of the previous block. This has the effect of creating a chain of blocks from the genesis block to the current block. Each block is guaranteed to come after the previous block chronologically because the previous block's hash would otherwise not be known. Each block is also computationally impractical to modify once it has been in the chain for a while because every block after it would also have to be regenerated. These properties are what make double-spending of bitcoins very difficult. The block chain is the main innovation of Bitcoin.

According to Joseph Wright's article, Blockchain Technology Underpinning Bitcoin Used to Authenticate Documents, Digital Art, "[t]he blockchain offers a promising solutions for document authentication in legal disputes and for preventing digital art forgeries." But can the blockchain technology meet the authentication requirements of the Federal Rules of Evidence? I spoke with Wright about this issue, and part of our discussion is included in the article, which is available here  Download Blockchain Article. This article is reproduced with permission from Electronic Commerce & Law Report, 19 ECLR 1400 (Oct. 29, 2014). Copyright 2014 by The Bureau of National Affairs, Inc. (800-372-1033)http://www.bna.com.


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

Wednesday, October 29, 2014

Patently True: Rule 803(8) & the United States Patent and Trademark Office

Today, a student stopped by my office and asked about whether patents are admissible despite the rule against hearsay. My inclination was to respond that they would be admissible under Federal Rule of Evidence 803(8), which provides an exception to the rule against hearsay for

A record or statement of a public office if:

(A) it sets out:

(i) the office’s activities;

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

So, are patents admissible under Rule 803(8)? And what about other documents issued by the United States Patent and Trademark Office? Let's take a look at the opinion of the United States District Court for the Northern District of California in Fresenius Medical Care Holdings, Inc. v. Baxter Intern., Inc., 2006 WL 1330003 (N.D. Cal. 2006).

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

Tuesday, October 28, 2014

Show Me, Take 2: Missouri Prosecutor Claims Missouri Has Strictest Limitations on Child Molestation Evidence

Last week, I posted an entry about a proposed Missouri Constitutional Amendment that would, in essence, create a state counterpart to Federal Rule of Evidence 414(a) and allow for the admission of prior acts of child molestation by a defendant on trial for child molestation. In that post, I cited an article that quoted prosecutor as saying that "Missouri is now among the most restrictive states in the country when it comes to presenting such evidence." 

Now, in an op-ed written for the Columbia Daily Tribune, prosecutor Dan Knight argues that

Missouri has the strictest limitations on the use of propensity evidence of any state in the country. Such evidence is specifically allowed in federal courts under the Federal Rules of Evidence, and it is not prohibited by the U.S. Constitution. Because propensity evidence is barred in Missouri, cases involving sex crimes against children are quite possibly more difficult to prosecute in this state than in any other state.

As I noted in my prior post, I see no support for this contention. In a blog post, as of 2011, only 11 states had enacted counterparts to Federal Rule of Evidence 414(a). That means that 39 states (or possibly 1 or 2 fewer if others have since enacted counterparts) have the exact same prohibition of the admissi0n of child molestation evidence as Missouri.


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

Monday, October 27, 2014

Yes or No? Supreme Court of Georgia Finds Head Nods Constituted Dying Declarations

Section 24-3-6 of the Georgia Code provides that

Declarations by any person in the article of death, who is conscious of his condition, as to the cause of his death and the person who killed him, shall be admissible in evidence in a prosecution for the homicide.

It is well established under this and similar hearsay exceptions that such "dying declarations" are admissible even if they come in response to questions. See, e.g., 4 Louisell & Mueller, Federal Evidence § 488, p. 1124 ("Indeed, a person in his dying moments may be inclined more toward silence than conversation, and the stimulus of a question may be essential."). But what if a declarant's dying declaration consists solely of a nod of the head in response to the question, "Did X shoot you?" Let's take a look at the recent opinion of the Supreme Court of Georgia in Wiggins v. State, 2014 WL 4667524 (Ga. 2014).

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October 27, 2014 | Permalink | Comments (0) | TrackBack (0)

Friday, October 24, 2014

Leslie Shoebotham on Heien v. North Carolina & Police Mistakes of Law

Leslie A. Shoebotham, the Victor H. Schiro Distinguished Professor of Law at the Loyola University New Orleans College of Law, has a terrific blog post up at Hamilton and Griffin on Rights about Heien v. North Carolina. The issue that the Supreme Court is set to decide in Heien is: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop. Professor Shoebotham, who attended oral arguments in Heien, leads her post as follows:

The Supreme Court opened its new Term by hearing argument in Heien v. North Carolina, a Fourth Amendment case that asks whether a police officer’s mistaken understanding of a traffic statute—a mistake of law—can provide the requisite suspicion under the Fourth Amendment to support an investigatory stop of a vehicle. I attended oral argument and found the Justices to be frustrated by the unusual posture of the case before them. Heien seemingly grew in what amounts to a Petri dish of background North Carolina law and meticulous pruning of legal arguments—which the parties argued meant that the Court was limited to considering only the question of whether the traffic stop at issue violated the Fourth Amendment, not the consequences if the Fourth Amendment was, indeed, violated.

You can check out the rest of the post by clicking here.


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

Thursday, October 23, 2014

Drinking Problems: Prosecution Moves to Preclude Expert Testimony in Vanderbilt Rape Case

According to an article on WKRN,

With less than a week before former Vanderbilt University football players Brandon Vandenburg and Corey Batey go on trial for an alleged on-campus rape, a new motion filed by prosecutors asks to exclude an expert testimony.  

Prosecutors are asking the testimony given by forensic psychologist Dr. Stefanie Stolinsky be excluded on grounds the testimony is “not based on relevant scientific methods, processes or data and is therefore purely subjective.”  

According to her findings, Vandenburg was too drunk to know what was going on the night of June 23, 2013 when an unconscious female was allegedly raped inside a dorm room at Gillete Hall.

So, will the prosecution be successful?


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October 23, 2014 | Permalink | Comments (1) | TrackBack (0)

Wednesday, October 22, 2014

Show Me: Proposed Missouri Constitutional Amendment Would Allow For Admission of Child Molestation Evidence

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.

I'm not 100% sure whether my numbers are up to date, but when I posted this entry in 2011, eleven states had counterparts to Rule 414(a). Will Missouri become #12?

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

Tuesday, October 21, 2014

Forthcoming Evidence Article of Interest: “The Evidentiary Rules of Engagement in the War Against Domestic Violence"

Just read this forthcoming article 

"The Evidentiary Rules of Engagement in the War Against Domestic Violence"

by Erin Collins (NYU)

It provides an informative survey and critique of state evidence rules/doctrines that make it easier to prosecute domestic violence cases.  Worth a look for those interested in these important and complex questions.

Abstract after the fold

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

Forfeit Loss; Court of Appeals of Michigan Bungles Forfeiture by Wrongdoing Ruling

Similar to its federal counterpartMichigan Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay (and the Confrontation Clause) for

A statement offered against a party that has engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.

Assume a defendant is charged with a crime such as battery kills a witness for the prosecution who planned to testify at that trial. Clearly, this "forefeiture by wrongdoing" exception would apply at the robbery trial. But should it also apply at the defendant's trial for murdering the witness? According to the recent opinion of the Court of Appeals of Michigan in People v. Aiden, 2014 WL 4930703 (Mich.App. 2014), the answer is "no." I disagree.

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

Monday, October 20, 2014

With Us or Against Us?: Court of Appeals Finds Alternate Suspect Confession Inadmissible

Similar to Federal Rule of Evidence 804(b)(3), Wisconsin Statute Section 908.045(4) provides an exception to the rule against hearsay for

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

In State v. Amonoo, 2014 WL 4976615 (Wis.App. 2014), the trial court prevented the defendant from presenting a statement against interest. But was that statement corroborated?

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

Friday, October 17, 2014

Die Another Day: Ohio Court Finds Victim's Clicking Noises Qualify as Dying Declarations

According to an article in the Ledger-Enquirer,

Three years ago Calvin Grimes lay in intensive care, paralyzed from the neck down, with a gunshot wound to his windpipe.  

He could not speak. All he could do was click with his mouth.  

In the hospital with machines breathing for him, he could not tell Columbus police who fired the shots Aug. 19, 2010, that left him slumped in a car at 543 Third Ave., with two .40-caliber bullets lodged in his trachea and his spinal canal, and with exit wounds from .22-caliber bullets in his left wrist, upper left thigh and right buttock.  

Because Grimes could not vocalize the names of his assailants, Detective Wayne Fairburn improvised as he questioned Grimes in the hospital Oct. 11, 201[0].  

Fairburn reported Grimes first mouthed the name "Jarvis" when asked who shot him. The detective then wrote the alphabet out on his note pad, and asked Grimes to make the clicking noise as Fairburn pointed to each letter, signaling the sequence to spell names.  

Using this method, Fairburn got Grimes to spell "Jarvis Alexander" and "Josh Leonard." Two days later the officer returned with photographs of those suspects, which Grimes identified as the men who shot him.  

Later Grimes was fitted with a device that enabled him to speak, and relatives reported he told them the same names.  

Should Grimes's "statements" be deemed admissible as dying declarations?

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October 17, 2014 | Permalink | Comments (1) | TrackBack (0)

Thursday, October 16, 2014

Free Shoes University?: Michael McCann & a Florida State Student Conduct Code Proceeding Against Jameis Winston

Sports Illustrated has a great piece by Michael McCann about what a student code of conduct hearing would look like for Heisman-winning quarterback Jameis Winston. I previously blogged about possible evidentiary issues at a potential criminal trial against Winston in this post. The gist of McCann's piece is that none of these evidentiary issues would arise at a student code of conduct hearing. Why?

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