EvidenceProf Blog

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

Thursday, November 26, 2020

4th Circuit Deals With Intersection Between Co-Conspirator Liability & Forfeiture by Wrongdoing in Thanksgiving-Related Case

Federal Rule of Evidence 804(b)(6) contains an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result.

This "forfeiture by wrongdoing" hearsay exception is effectively a witness tampering rule. Imagine, for instance, that Erica tells police that she saw Dan murder Vince and later turns up dead herself. If the prosecution can prove that Dan killed Erica, or arranged to have her killed, so she couldn't testify agains him, Erica's statement to the police would be admissible against Dan at his trial for murdering Vince. But what if Dan is part of a continuing conspiracy, with a co-conspirator killing Erica after Dan is already in jail? This was the question addressed by the Fourth Circuit in United States v. Dinkins, 691 F.3d 358 (4th Cir. 2012).

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November 26, 2020 | Permalink | Comments (0)

Wednesday, November 25, 2020

Indiana's Rule of Evidence 413 and Medical Expenses

Indiana has a unique rule of evidence: Indiana Rule of Evidence 413. Indiana Rule of Evidence 413 provides that

Statements of charges for medical, hospital or other health care expenses for diagnosis or treatment occasioned by an injury are admissible into evidence. Such statements are prima facie evidence that the charges are reasonable.

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November 25, 2020 | Permalink | Comments (0)

Tuesday, November 24, 2020

Court of Appeals of Mississippi Finds Social Media Concerns Don't Apply to Data Extracted From a Cell Phone

Like many state supreme courts, the Supreme Court of Mississippi has expressed concerns regarding the authentication of social media evidence. In Smith v. State, 136 So.3d 424 (Miss. 2014), the Supreme Court of Mississippi held that

The authentication of social media poses unique issues regarding what is required to make a prima facie showing that the matter is what the proponent claims. Creating a Facebook account is easy. Millier, Samantha L., Note, The FaceBook Frontier: Responding to the Changing Face of Privacy on the Internet, 97 Ky. L.J. 541, 544 (2008-09). “[A]nyone at least thirteen years old with a valid e-mail address could create a profile.” Petrashek, Nathan, The Fourth Amendment and the Brave New World of Online Social Networking, 93 Marq. L.Rev. 1495, 1506 (Summer 2010). To create a profile, a person must go to www.facebook.com, enter his or her full name, birth date, and e-mail address, and register a password. Facebook then sends a confirmation link to the registered e-mail, which the person must click on to complete registration. Miller, 97 Ky. L.J. at 544. Not only can anyone create a profile and masquerade as another person, but such a risk is amplified when a person creates a real profile without the realization that third parties can “mine” their personal data. Id. at 542. Friends and strangers alike may have “access to family photos, intimate details about one's likes and dislikes, hobbies, employer details, and other personal information,” and, consequently, “the desire to share information with one's friends may also expose users to unknown third parties who may misuse their information.” Id. at 542-43 (describing a study done by an internet security company using “Freddi Staur,” a toy frog with a Facebook account, who “friended” several people on Facebook and was able to access their personal information). Thus, concern over authentication arises “because anyone can create a fictitious account and masquerade under another person's name or can gain access to another's account by obtaining the user's username and password,” and, consequently, “[t]he potential for fabricating or tampering with electronically stored information on a social networking sight” is high, and poses challenges to authenticating printouts from the website. Griffin v. State, 419 Md. 343, 19 A.3d 415, 421-22 (2011); see also Eleck, 130 Conn.App. 632, 23 A.3d at 822 (“an electronic communication, such as a Facebook message, ... could be generated by someone other than the named sender”); Campbell v. State, 382 S.W.3d 545, 550 (Tex.App.2012) (“Facebook presents an authentication concern that is twofold. First, because anyone can establish a fictitious profile under any name, the person viewing the profile has no way of knowing whether the profile is legitimate. Second, because a person may gain access to another person's account by obtaining the user's name and password, the person viewing communications on or from an account profile cannot be certain that the author is in fact the profile owner.”

That said, those unique issues did not apply in Willis v. State, 2020 WL 6736816 (Miss.App. 2020).

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November 24, 2020 | Permalink | Comments (0)

Monday, November 23, 2020

Supreme Judicial Court of Maine Grapples With Integrated Records Doctrine Under the Business Records Exception

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

Records of a regularly conducted activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) The record was made at or near the time by—or from information transmitted by—someone with knowledge;

(B) The record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) Making the record was a regular practice of that activity;

(D) All these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11), Rule 902(12) or with a statute permitting certification; and

(E) The opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.

Typically, this "business records" hearsay exception applies to documents produced by a business itself (e.g., Burger King is sued and seeks to introduce its business records, or the adverse party seeks to introduce business records that Burger King produced during discovery). But what happens in a case in which a business creates business records and sends them to a second business, with that second business integrating those records into its own business records? That was the question addressed by the Supreme Judicial Court of Maine in Bank of New York Mellon v. Shone, 2020 WL 6165853 (Me. 2020)

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November 23, 2020 | Permalink | Comments (0)

Sunday, November 22, 2020

Supreme Court of Montana Addresses State of Mind Hearsay Exception

Similar to its federal counterpart, Montana Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then-existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed.

It's important to note, though, that many statements about a declarant's state of mind will be irrelevant or have a probative value that is substantially outweighed by the danger of unfair prejudice. A good example can be found in the recent opinion of the Supreme Court of Montana in State v. Gomez, 460 P.3d 926 (Mont. 2020).

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November 22, 2020 | Permalink | Comments (2)

Saturday, November 21, 2020

United States District Court for the District of Arizona Finds Attorney Can't be Sequestered Despite Being a Potential Witness

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

So, imagine that a defense attorney might be a witness at trial. Could the plaintiff's counsel have defense counsel excluded from the courtroom during the testimony of other witnesses?

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November 21, 2020 | Permalink | Comments (0)

Friday, November 20, 2020

Iowa's Civil "Mercy Rule"

Generally propensity character evidence ("once an arsonist, always an arsonist") is inadmissible pursuant to Federal Rule of Evidence 404(a). That said, Federal Rule of Evidence 404(a)(2) contains a "mercy rule," which provides that

The following exceptions apply in a criminal case:

(A) a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may:

(i) offer evidence to rebut it; and

(ii) offer evidence of the defendant’s same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor.

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November 20, 2020 | Permalink | Comments (0)

Thursday, November 19, 2020

Tennessee's Odd Rules on the Learned Treatise Exception

Federal Rule of Evidence 803(18) provides an exception to the rule against hearsay for

(18) Statements in Learned Treatises, Periodicals, or Pamphlets. A statement contained in a treatise, periodical, or pamphlet if:

(A) the statement is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination; and

(B) the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.

If admitted, the statement may be read into evidence but not received as an exhibit.

Conversely, Tennessee has no direct counterpart to Federal Rule of Evidence 803(18). Why?

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November 19, 2020 | Permalink | Comments (0)

Wednesday, November 18, 2020

Maine Rule of Evidence 105 Codifies the Bruton Doctrine

Federal Rule of Evidence 105 provides that

If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Maine Rule of Evidence 105 adds a sentence to this "limiting instruction" rule. It states that

If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

In a criminal case tried to a jury, evidence inadmissible as to one defendant must not be admitted as to other defendants unless all references to the defendant as to whom it is inadmissible have been effectively deleted.

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November 18, 2020 | Permalink | Comments (0)

Tuesday, November 17, 2020

South Dakota's Execution Privilege

A number of states with the death penalty have enacted death penalty secrecy statutes. According to the Death Penalty Information Center,

Screen Shot 2020-11-15 at 11.33.02 AM

As far as I can tell, however, South Dakota is the only state with an evidentiary privilege connected to executions.

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November 17, 2020 | Permalink | Comments (0)

Monday, November 16, 2020

Utah's Unique Rule of Evidence Regarding Traffic Code Violations

Utah has a unique rule of evidence. Utah Rule of Evidence 416 (Violation of Traffic Code Not Admissible) states that

Evidence that a person was convicted of an infraction or a class C misdemeanor under Utah Code Title 41, Chapter 6a, is not admissible:

(a) to prove the person acted negligently or otherwise wrongly, or

(b) to impeach the person’s testimony on those issues.

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November 16, 2020 | Permalink | Comments (0)

Sunday, November 15, 2020

The Political Vote Privilege

Assume you are a witness at trial and asked whether you voted for Biden or Trump (or Kanye). Would you have to answer the question, assuming it was somehow relevant to the trial being held? In most states, the answer is "no." As Peter Nicolas writes in Electoral Evidence, 69 Ala. L. Rev. 109 (2017),

Today, twenty U.S. states and two U.S. territories, by statute or codified rule of evidence, recognize such a political vote privilege. Another twenty-one states have judicial decisions on the books recognizing such a privilege, all (or nearly all) of which have survived the codification of rules of evidence in those states. Of the remaining nine states, courts in two, Arizona and Utah, have explicitly left the issue open, while the other seven--Florida, Maryland, New Hampshire, South Carolina, Vermont, Virginia, and Washington-- have no cases or statutes addressing the issue. However, seven of these nine states have constitutional provisions guaranteeing a right to a secret ballot, and the remaining two states have statutes guaranteeing the same from which courts could derive a political vote privilege, in accordance with the many other states that have done so. In addition, five of the nine states have a rule acknowledging the power of courts to recognize common law privileges that could similarly result in the recognition of such a privilege. It thus seems likely that if the issue were addressed by courts in the remaining states, the result would be unanimous (or nearly so) recognition of the privilege nationwide.
An analogous privilege likely exists at the federal level and governs when federal causes of action are involved. When the Federal Rules of Evidence were originally proposed, they included a series of specific evidentiary privileges, including a political vote privilege with an exception for illegally cast votes. In response to overwhelmingly negative criticism of the specific privileges proposed to be included in and excluded from the Federal Rules of Evidence--albeit none directed at the political vote privilege itself--Congress substituted in their place a general rule directing courts to determine the existence and scope of federal privileges by way of “[t]he common law--as interpreted by United States courts in the light of *reason and experience.” Applying this standard, the only federal court to consider the matter to date has recognized a federal common law political vote privilege.

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November 15, 2020 | Permalink | Comments (0)

Saturday, November 14, 2020

11th Circuit Case Has Textbook Rule 704(b) Violation

Federal Rule of Evidence 704(b) states that 

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

The recent opinion of the United States Court of Appeals for the Eleventh Circuit in United States v. Boykins, 2020 WL 6441103 (11th Cir. 2020), provides a good example of testimony that violates Rule 704(b).

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November 14, 2020 | Permalink | Comments (0)

Friday, November 13, 2020

Hiring Announcement: Belmont University College of Law Tenure-Track Faculty Position

Hiring Announcement: Belmont University College of Law Tenure-Track Faculty Position

Belmont University College of Law, in Nashville, Tennessee, invites applications from entry level and experienced candidates to fill a tenure-track faculty position.  We are seeking candidates across a broad range of teaching and research areas, starting with the 2021-2022 academic year, with the successful candidate's teaching load including Evidence.  

A successful applicant must have a J.D., strong academic background, and record that indicates the promise of both teaching excellence and high scholarly achievement.  Belmont is an EOE/AA employer and welcomes applications from candidates who may add to the diversity at Belmont College of Law.  Belmont College of Law reserves the right to exercise a preference for those candidates who support the goals and missions of the University. 

If interested, please submit a letter of interest and curriculum vitae to the Chair of the Faculty Recruitment Committee Professor Loren Mulraine at loren.mulraine@belmont.edu or lawfaculty.recruitment@belmont.edu

Belmont University is a private, Christian university focusing on academic excellence and is located in the heart of Nashville, one of the fastest growing and most culturally rich cities in the country.  Belmont’s student body of over 8,400 includes students from every state, more than 35 countries, and all faiths.  The Belmont faculty is dedicated to teaching, service, and active engagement in scholarship.  The median LSAT/GPA for the 142 students who entered the law school in August 2019 were 156 and 3.63 (75th percentile: 158 and 3.84; 25th percentile: 153 and 3.28), placing the school well within the top 100 U.S. law schools for quality of applicants.  Belmont’s first-time bar passage rate for the July 2018 and 2019 Tennessee bar exams was 95.8%, one of the highest pass rates in the country, and its employment rate for the 2018 & 2019 classes was 95%.

November 13, 2020 | Permalink | Comments (0)

Thursday, November 12, 2020

Supreme Court of New Mexico (Temporarily?) Restores the Spousal Communications Privilege

In pertinent part, New Mexico's spousal communications privilege states that

A person has a privilege to refuse to disclose , or to prevent another from disclosing, a confidential communication by the person to that person's spouse while they were married.

In the appeal of David Gutierrez II of his murder conviction, the Supreme Court of New Mexico initially abolished this spousal communications privilege. But then, it had second thoughts.

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November 12, 2020 | Permalink | Comments (0)

Wednesday, November 11, 2020

Undisclosed Mega-Update Thread 6

On November 11, 2020, Judge Steve R. Dozier vacated Joseph Webster's murder conviction. Later that day, Webster was released from prison after almost 15 years of wrongful imprisonment

Given this terrific turn of events, I wanted to do another update on the status of all of the cases we've covered on Undisclosed.

Total cases covered: 23 cases.

Relief granted: 14 cases: 10 exonerations: (1) Shaurn Thomas; (2) Terrance Lewis; (3) Willie Veasy; (4) Chester Hollman III; (5) Charles Ray Finch; (6) Theophalis Wilson; (7) Jonathan Irons; (8) Dennis Perry; (9) Ronnie Long; and (10) Joseph Webster. 2 stays of execution: (1) Marcellus Williams; and (2) William Montgomery. 1 commutation: Cyntoia Brown. 1 grant of parole: Cyrus Wilson.

Currently pending: 4 cases. (1) Joey Watkins's successor habeas petition recently authorized to move forward by the Supreme Court of Georgia; (2) Pedro Reynoso's CIU petition; (3) Fred Freeman/Temujin Kensu's CIU petition; and (4) John Brookins's DNA petition and Board of Pardons hearing.

New appeals expected soon: 4 cases: (1) Adnan Syed; (2) Jamar Huggins; (3) Pam Lanier; and (4) Greg Lance.

Options being explored: 1 case: Rocky Myers

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November 11, 2020 | Permalink | Comments (1)

Monday, November 9, 2020

Court of Appeals of Maryland Finds it is Witness Tampering & Obstruction of Justice to Marry a Prospective Witness for Privilege Purposes

Maryland has a spousal testimonial privilege, which states in pertinent part that 

(a) The spouse of a person on trial for a crime may not be compelled to testify as an adverse witness unless the charge involves:

(1) The abuse of a child under 18; or

(2) Assault in any degree in which the spouse is a victim if:

(i) The person on trial was previously charged with assault in any degree or assault and battery of the spouse;

(ii) The spouse was sworn to testify at the previous trial; and

(iii) The spouse refused to testify at the previous trial on the basis of the provisions of this section.

So, let's say that a defendant is accused of a crime and marries a prospective witness against him so that she can invoke this spousal testimonial privilege. Can that defendant be charged with witness tampering and obstruction of justice? This was the question of first impression addressed by the Court of Appeals of Maryland in its recent opinion in State v. Wilson, 2020 WL 6266905 (Md. 2020).

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November 9, 2020 | Permalink | Comments (0)

Friday, November 6, 2020

United States District Court for the District of Utah Notes Split Over Whether Settlement Statements About Mitigation of Damages Are Admissible

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.

So, does Rule 408(b) allow for the admission of evidence of statements during settlement negotiations to prove that a party failed to mitigate its damages? This was the question of first impression addressed by the United States District Court for the District of Utah in Nutraceutical Corporation v. Nutrachamps, Inc., 2020 WL 6382042 (D. Utah. 2020).

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November 6, 2020 | Permalink | Comments (1)

Thursday, November 5, 2020

Supreme Court of New Mexico Lays Out Four Factor Test for Forfeiture by Wrongdoing

Similar to Federal Rule of Evidence 804(b)(6), New Mexico Rule of Evidence 11-804(B)(5) provides an exception to the rule against hearsay for

A statement offered against a party that wrongfully caused--or acquiesced in wrongfully causing--the declarant's unavailability as a witness, and did so intending that result.

So, what is required for this "forfeiture by wrongdoing" exception to apply? That was the question addressed by the Supreme Court of New Mexico in its recent opinion in State v. Farrington, 2020 WL 6144648 (N.M. 2020).

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November 5, 2020 | Permalink | Comments (0)

Wednesday, November 4, 2020

New Jersey Court Finds Release From Probation is Not Release From Confinement For Impeachment Purposes

New Jersey Rule of Evidence 609(b)(1) states that 

If, on the date the trial begins, more than ten years have passed since the witness' conviction for a crime or release from confinement for it, whichever is later, then evidence of the conviction is admissible only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof.

So, assume that a witness testifying at a trial in 2017 was convicted of a crime in 2005 and sentenced to 4 years probation. Because that probation ended in 2009, would that conviction fall beyond the scope of Rule 609(b)(1) because the "release from confinement" confinement for it was less than 10 years ago?

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November 4, 2020 | Permalink | Comments (0)