EvidenceProf Blog

Formula 409: Illinois Court Applies Rule 409 to Medical Offer That Took Place Before Rule Took Effect

Federal Rule of Evidence 409 and its state counterparts have to be among the least cited rules of evidence. Rule 409 provides that

Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.

I think that there are two primary reasons why this rule isn't cited very often. First, I would guess that offers to pay medical expenses are pretty rare. Second, because the language of the rule is so clear, I doubt that many litigants try to introduce evidence relating to an offer to pay medical expenses. But, with the recent enactment of the first Illinois Rules of Evidence, we can have a case like Lambert v. Coonrod, 966 N.E.2d 583 (Ill.App. 4 Dist. 2012).

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Cart Before the Horse?: D.C. Court of Appeals Rejects Defendant's Conditional Relevance Appeal

Federal Rule of Evidence 104(b) provides that

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (emphasis added).

In Hagraves v. United States, 2013 WL 173228 (D.C. 2013), a defendant appealed from his conviction, claiming that the trial court erred in precluding him from doing a conditional admission pursuant to the last sentence of Rule 104(b). So, what did the court find?

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Preemptive Strike: 3rd Circuit Finds Defendant Who Preemptively Introduced Drug Conviction Couldn't Appeal

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....

There has been a boatload of litigation surrounding Rule 609(a)(1), and that has led to some interesting issue regarding its applicability and appealability. Two of those issues were at the heart of the Third Circuit's recent opinion in United States v. Gaston, 2013 WL 142270 (3rd Cir. 2013).

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No Stop Signs, Speed Limit: "Mechanical Trace" Theory & Whether Speed Limit Signs Constitute Hearsay

Yesterday, I got an interesting e-mail from a student asking me whether a speed limit sign constitutes hearsay. Federal Rule of Evidence 801(c) states that

"Hearsay" means a statement that:  

(1) the declarant does not make while testifying at the current trial or hearing; and  

(2) a party offers in evidence to prove the truth of the matter asserted in the statement.

In turn, Federal Rule of Evidence 801(a) indicates that

"Statement" means a person’s oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

So, is a speed limit sign hearsay? As I said, it is an interesting question.

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I'm on a Mexican, Whoa-Oh: 7th Circuit Finds Testimony About Mexican Methamphetamine Was Improperly Admitted

Federal Rule of Evidence 401 provides that

Evidence is relevant if:  

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and  

(b) the fact is of consequence in determining the action.

Moreover, Federal Rule of Evidence 403 provides that

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

So, let's say that in a case involving a Mexican citizen, a DEA officer testifies as follows:

There's two different types of methamphetamine that we see here in the United States. One is what we call...Mexican methamphetamine because it's made by Mexican nationals. Typically, either south of the border in Mexico or in super labs on the west coast like in California. The other kind of methamphetamine that we see is, for lack of a better term, homemade methamphetamine. And that's the stuff that is made in small labs, box labs we call them sometimes, that you can make it in your kitchen using...pseudoephedrine or pseudophed.

Is such evidence admissible under these Rules? According to the recent opinion of the Seventh Circuit in United States v. Ramirez-Fuentes, 2013 WL 28261 (7th Cir. 2013), the answer is "no."

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The Character of the Matter: Court of Appeals of Idaho Finds Sexual Morality Evidence Should Have Been Admitted

In my forthcoming article, Justice of the Peace?, I note that

it is generally understood that character evidence is especially unreliable for a variety of reasons, including the usual sources of character evidence. "Numerous courts have expressed the same opinion as that espoused by the Vermont Supreme Court in" Wright v. McKee, in which it held that character evidence "is uncertain in its nature-both because the true character of a large portion of mankind is ascertained with difficulty, and because those who are called to testify are reluctant to disparage their neighbors,-especially if they are wealthy, influential, popular, or even only pleasant and obliging."  Of course, when character evidence does not come from neighbors, it often comes from family members, who are especially unreliable given their biases in favor of (and sometimes against) their sons, daughters, parents, brothers, and sisters.

And yet, courts continually allow criminal defendants to present character evidence under the so-called "mercy rule," which also allows for prosecutors to respond in kind. As noted in the recent opinion of the Court of Appeals of Idaho in State v. Rothwell, 2013 WL 53731 (Idaho App. 2013), the vast majority of courts in child molestation cases allow defendants to present evidence of their sexual morality with children. But does this make any sense?

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A Foolish Consistency?: "An Unneeded Hearsay Exception" & The Case Against The Rule 801(d)(1)(B) Amendment

Currently, Federal Rule of Evidence 801(d)(1)(B) provides that

A statement that meets the following conditions is not hearsay:

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

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

On the other hand, as I have noted on a few prior occasions (see here, here, and here), Minnesota Rule of Evidence 801(d)(1)(B) is broader, providing that

A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...(B) consistent with the declarant's testimony and helpful to the trier of fact in evaluating the declarant's credibility as a witness...

In other words, under the Minnesota Rule, a witness's prior consistent statement can be admitted as non-hearsay even if there is no express or implied charge that the witness recently fabricated his trial testimony or acted from a recent improper influence or motive in so testifying. Under a proposed amendment, however, Federal Rule of Evidence 801(d)(1)(B) would be functionally similar to Minnesota Rule of Evidence 801(d)(1)(B). So, why has this change been proposed, and does it make sense?

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Cause I'm a Criminal: Michigan Case Reveals How Criminal Defendants Get Preferential Treatment Under Rule 803(8)(a)(iii)

Recently, I completed the first round of edits on my article, Justice of the Peace?, and a large focus of the article is about how the rules of evidence, save for Federal Rule of Evidence 404(a)(2)(C), treat criminal defendants at least as well as their civil counterparts. And, as the recent opinion of the United States District Court for the Eastern District of Michigan in Santander Consumer USA, Inc. v. Superior Pontiac Buick GMC, Inc., 2013 WL 27921 (E.D.Mich. 2013), makes clear, Federal Rule of Evidence 803(8)(a)(iii) is actually a Rule that treats criminal defendants much better than their civil counterparts.

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What Kind of Crime? Utah Court Finds Possession of Child Pornography Not Child Molestation Under Rule 414

As noted in yesterday's post, Federal Rule of Evidence 414(a),

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.

So, what exactly counts as "child molestation" for Rule 414(a) purposes? Let's take a look at the recent opinion of the United States District Court for the District of Utah in United States v. Gardner, 2013 WL 53845 (D.Utah 2013).

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Compromising Position: 11th Circuit Case Involves Rare Intersection Between Rules 408(a) & 413(a)

Federal Rule of Evidence 408(a) provides that

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.

Meanwhile, 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.

Usually, these Rules are two ships passing in the night, but they had a rare intersection in the recent opinipon of the Eleventh Circuit in United States v. Levinson, 2013 WL 49718 (11th Cir. 2013).

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"Ancient" History: Court of Appeals of Kentucky Doesn't Have to Apply Ancient Documents Rule in Adverse Possession Case

Adverse possession cases are always fun, that is, unless you are the property owner whose land a squatter allegedly adversely possessed.

Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations.

And while they say that possession is 9/10ths of the law, the recent opinion of the Court of Appeals of Kentucky in Perkins v. Howard, 2013 WL 45570 (Ky.App. 2012), reveals that fortune often doesn't favor the alleged adverse possessor.

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That is So Not True: 6th Circuit Finds Theft of Services Conviction Not Covered by Rule 609(a)(2)

Federal Rule of Evidence 609(a) 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; and  

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

So, let's say that a witness has been "convicted of misdemeanor theft of services and fined fifty dollars after he had a friend, who worked for a utility company, surreptitiously hook services up to his home." Because this crime was a misdemeanor, it cannot be admissible under Rule 609(a)(1). But should it be admissible under Federal Rule of Evidence 609(a)(2)? According to the recent opinion of the Sixth Circuit in United States v. Washington, 2012 WL 6682015 (6th Cir. 2012), the answer is "no." I disagree.

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Hierarchy of Needs: Texas Case Reveals Explicit Texas Rule of Evidence on Evidentiary Hierarchy

I always teach my students that the Constitution trumps the Federal Rules of Evidence. There is, however, no specific Rule in the Federal Rules of Evidence that sets forth this hierarchy. As the recent opinion of the Court of Appeals of Texas, Texarkana, in Clay v. State, 2012 WL 6721012 (Tex.App.-Texarkana 2012), makes clear, however, there is such a Rule in the Texas Rules of Evidence. And the opinion also makes clear that there is another important difference between the two sets of Rules.

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Failure of Confrontation: Court of Criminal Appeals of Alabama Reverses Burglary Adjudication Based on Bruton Violation

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant's confession that facially incriminates another defendant. A textbook application of the doctrine can be found in the recent opinion of the Court of Criminal Appeals of Alabama in C.L.H. v. State, 2012 WL 6554144 (Ala.Crim.App. 2012).

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Gas Stop: Court of Appeals of Minnesota Finds Trial Court Erred in Allowing for Admission of Gas Station Transaction Journal

Similar to its federal counterpart, Minnesota Rule of Evidence 803(6) provides an exception to the rule against hearsay for 

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.

As the language of Rule 803(6) makes clear, for a business record to be admissible under the rule, there must be foundation testimony from either the custodian of the record or another qualified witness. The problem for the State in State v. Johnson, 2012 WL 6734450 (Minn.App. 2012), was that it had neither.

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It's in My Report: Court of Appeals of Utah Reverses Receiving Stolen Property Report Based on Improper Admission of Incident Report

Similar to its federal counterpart, Utah Rule of Evidence 803(8) 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.

What this means is that, pursuant to Utah Rule of Evidence 803(8)(A)(ii), a police or incident report is not admissible at a criminal trial. And what that means is that the defendant in State v. Gonzalez-Camargo, 2012 WL 6720459 (Utah App. 2012), was entitled to a new trial.

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Hawaii Five-O: Hawai'i Court Finds Official Duty Presumption Inapplicable to Warrantless Arrest

Hawai'i Rule of Evidence 304(c) sets forth a number of presumptions that impose a burden of proof:

(1) Owner of legal title is owner of beneficial title. The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.  

(2) Official duty regularly performed; lawful arrest. It is presumed that official duty has been regularly performed. This presumption does not apply on an issue as to the lawfulness of an arrest if it is found or otherwise established that the arrest was made without a warrant.  

(3) Intention of ordinary consequences of voluntary act. A person is presumed to intend the ordinary consequences of the person's voluntary act.  

(4) Doing of an unlawful act. An unlawful intent is presumed from the doing of an unlawful act.  

(5) Any court, any judge acting as such. Any court of this State or the United States, or any court of general jurisdiction in any other state or nation, or any judge of such a court, acting as such, is presumed to have acted in the lawful exercise of its jurisdiction. This presumption applies only when the act of the court or judge is under collateral attack.  

(6) Ceremonial marriage. A ceremonial marriage is presumed to be valid.  

(7) Death. A person who is absent for a continuous period of five years, during which the person has not been heard from, and whose absence is not satisfactorily explained after diligent search or inquiry, is presumed to be dead.

In Kaneshiro v. Administrative Director of Courts, 2012 WL 6621141 (Hawai'i App. 2012), the respondent sought to rely upon the presumption contained in Rule of Evidence 304(c)(2). But there was one little problem...

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Dead Man Talking: Court of Appeals of Michigan Finds No Problem With Forfeiture by Wrongdoing Jury Instruction

I've written a good deal recently about the doctrine of forfeiture by wrongdoing. My main focus has been upon whether there is a transferred intent doctrine of forfeiture by wrongdoing, i.e., whether forfeiture applies when a defendant on trial for murdering a prospective witness killed that prospective witness to prevent him from testifying at some other trial (e.g., a robbery trial). The recent opinion of the Court of Appeals of Michigan in People v. Cooley, 2012 WL 6633989 (Mich.App. 2012), however, addressed a different question relating to the doctrine of forfeiture by wrongdoing, albeit one that raises an interesting question connected to transferred intent.

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As My Next Witness: Court of Appeals of Kansas Finds Defendant Couldn't Call Prosecutor as Witness

Kansas has statutes precluding judges (KSA 60-442) and jurors KSA 60-443. By implication, then, does the absence of a rule precluding the prosecutor in a trial from testifying mean that prosecutors can be called to testify at trial? According to the recent opinion of the Court of Appeals of Kansas in State v. Rivera, 2012 WL 6642109 (Kan.App. 2012), the answer is "maybe, but not in this case."

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Not a Juror Was Stirring: 5th Circuit Finds No Problem WIth Allen Charge Despite Impending Christmas Holiday

An Allen charge, derived from the Supreme Court's opinion in Allen v. United States, 164 U.S. 492 (1896), is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reachesa verdict. Also referred to as a dynamite charge, a nitroglycerine charge, a shotgun charge, and a third-degree instruction, an Allen charge has been banned by some states, which consider the charge to be unduly coercive. Should the Allen charge also be banned when a major holiday is fast approaching? Should the charge be banned the day before a major holiday? Let's take a look at the recent opinion of the Fifth Circuit in United States v. Montalvo, 2012 WL 4788659 (5th Cir. 2012).

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