EvidenceProf Blog

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

Monday, April 19, 2021

Judge Gives an Implicit Bias Jury Instruction in the Derek Chauvin Trial

Today, the judge in the Derek Chauvin trial gave an implicit bias jury instruction. Here was the instruction:

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I think these instructions are a good addition to the standard jury instructions. Indeed, in my new article, "The Constitutional Right to an Implicit Bias Jury Instruction," I argue that there should be a Constitutional right to such an instruction.


April 19, 2021 | Permalink | Comments (0)

Sunday, April 18, 2021

Breaking Down the Three Charges Against Derek Chauvin

On Monday, there will be closing arguments in the Derek Chauvin trial. In this post, I will break down the three charges that Chauvin faces in connection with the death of George Floyd.

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April 18, 2021 | Permalink | Comments (0)

Friday, April 16, 2021

District of Massachusetts Notes a General 20 Minute Cutoff For Present Sense Impressions

Federal Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

So, how much time can pass after an event or condition before a statement is longer a present sense impression under this hearsay exception? That was the question addressed by the United States District Court for the District of Massachusetts in its recent opinion in Allscripts Healthcare, LLC v. DR/Decision Resources, LLC., 2021 WL 681976 (D.Mass. 2021).

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April 16, 2021 | Permalink | Comments (0)

Thursday, April 15, 2021

Professor Richard Leo Posts Report on the Sedley Alley Case

As the Innocence Project has reported,

In 2006, Sedley Alley was executed by the state of Tennessee after the courts refused to conduct DNA testing that could have helped uncover the truth.

On May 1, 2019, his daughter April Alley, the executor of his estate, petitioned the Criminal Court for Shelby County, Tennessee for post-conviction DNA testing of the evidence in the case.

That petition was denied (and the denial is being appealed).

Now, Professor Richard Leo, a wrongful conviction expert we've had on Undisclosed a few times, had done a report on the case and posted it to SSRN. Here is the abstract:

This report by Dr. Richard Leo furnishes an overview of the relevant social science research on the psychology of police interrogation practices and techniques, police-induced false confessions, risk factors for false confession, psychological coercion, police interrogation contamination, and indicia of unreliability. Dr. Leo discusses these issues as they relate to the investigation, interrogations and confession statement of Sedley Alley.  Alley was convicted for the rape and murder of Marine Lance Corporal Suzanne Marie Collins in 1985, and he was executed in Tennessee in 2006.


April 15, 2021 | Permalink | Comments (0)

Wednesday, April 14, 2021

Pennsylvania Opinion Notes That the Keystone State Doesn't Have a Learned Treatise Hearsay Exception

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

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.

As the recent opinion of the Superior Court of Pennsylvania in Majdic v. Cincinnati Mach. Co., 537 A.2d 334 (Pa.Super. 2021), makes clear, however, “Pennsylvania does not recognize an exception to the hearsay rule for learned treatises.”

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April 14, 2021 | Permalink | Comments (0)

Tuesday, April 13, 2021

Western District of Virginia Finds Technical Drawings of a Rose's Department Store Admissible Under Rule 901(b)(4)

Federal Rule of Evidence 901(b)(4) allows for the authentication of evidence based upon 

The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

Nowadays, you often see courts allowing parties to use Rule 901(b)(4) to authenticate social media evidence, like Facebook posts. But the recent opinion of the United States District Court for the Western District of Virginia in Variety Stores, Inc. v. Martinsville Plaza, LLC., 2021 WL 1376959 (W.D.Va. 2021), involves a more old school use of the Rule.

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April 13, 2021 | Permalink | Comments (0)

Monday, April 12, 2021

Supreme Court of Mississippi Applies Pinkerton Conspiracy Theory to Forfeiture by Wrongdoing Exception

Similar to its federal counterpart, Mississippi Rule of Evidence 804(b)(6) provides an exception to the rule against hearsay

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.

Meanwhile, in Pinkerton v. United States, 328 U.S. 640 (1946), held that co-conspirators are responsible for the substantive offenses that were committed in furtherance of the conspiracy. So, if a co-conspirator of an incarcerated defendant kills a witness for the purpose of rendering him unavailable to testify, does that trigger this "forfeiture by wrongdoing" exception? That was the question addressed by the Supreme Court of Mississippi in its recent opinion in Buchanan v. State, 2021 WL 1310276 (Miss. 2021).

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April 12, 2021 | Permalink | Comments (2)

Sunday, April 11, 2021

Article of Interest: "The Modest Impact of the Modern Confrontation Clause," by Jeffrey Bellin & Diana Bibb

Jeffrey Bellin (William & Mary) and Diana Bibb (William & Mary) have posted "The Modest Impact of the Modern Confrontation Clause" (Tennessee Law Review, forthcoming) on SSRN. Here is the abstract:

The Sixth Amendment’s Confrontation Clause grants criminal defendants the right “to be confronted with the witnesses against” them. A strict reading of this text would transform the criminal justice landscape by prohibiting the prosecution’s use of hearsay at trial. But until recently, the Supreme Court’s interpretation of the Clause was closer to the opposite. By tying the confrontation right to traditional hearsay exceptions, the Court’s longstanding precedents granted prosecutors broad freedom to use out-of-court statements to convict criminal defendants.

The Supreme Court’s 2004 decision in Crawford v. Washington was supposed to change all that. By severing the link between the Sixth Amendment and the hearsay rules, Crawford “ushered in a revolution in the world of evidence and criminal prosecutions.” But the excitement did not last. Shifting majorities filled in the details of Crawford’s lofty rhetoric, muddying the distinction between the new jurisprudence and what had gone before.

This Article takes stock of the “Crawford Revolution.” First, it explores changes in confrontation doctrine since 2004 and examines, as a theoretical matter, how those changes map onto the state and federal hearsay exceptions that Crawford purportedly rendered irrelevant to constitutional analysis. This interplay between the hearsay rules and the Confrontation Clause is critical. The constitutional right would seem to have little significance if all it does is bar evidence that is already forbidden by nonconstitutional hearsay rules. Second, the Article reports the results of a novel empirical survey designed to test the theory by carefully cataloguing the hearsay pathways that generated Confrontation Clause challenges in hundreds of federal and state cases. The findings reveal an underappreciated role of the modern confrontation right, and changes to that role after 2004.


April 11, 2021 | Permalink | Comments (0)

Saturday, April 10, 2021

Supreme Court of Pennsylvania Recognized Fiduciary Exception to Attorney-Client Privilege & Work Product Doctrine

[Edit: As Dan notes in the comments, there was only a majority opinion regarding Parts I and II(a) of the opinion, so the portion of the opinion dealing with the fiduciary exception -- II(c) -- is not a majority opinion and is not precedential.].

Pursuant to 42 Pa.C.S. § 5928, Pennsylvania's attorney-client privilege,

In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.

Meanwhile, Pennsylvania Rule of Civil Procedure 4003.3, Pennsylvania's work product doctrine, states that

Subject to the provisions of Rules 4003.4 and 4003.5, a party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including his or her attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.

So, "[d]o the attorney-client privilege and work product doctrine[] protect communications between a trustee and counsel from discovery by beneficiaries when the communications arose in the context of adversarial proceedings between the trustee[] and beneficiaries?" That was the question of first impression addressed by the Supreme Court of Pennsylvania in its recent opinion in In Re: Estate of McAleer, 2021 WL 1289675 (Pa. 2021).

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April 10, 2021 | Permalink | Comments (2)

Thursday, April 8, 2021

Court of Appeals of Utah Finds Evidence of Victim's Bisexuality Inadmissible Under Rape Shield Rule

Similar to its federal counterpart, Utah Rule of Evidence 412(a) provides that

The following evidence is not admissible in a criminal proceeding involving alleged sexual misconduct: 

(a)(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(a)(2) evidence offered to prove a victim’s sexual predisposition.

Under this "rape shield" rule, it is well established that evidence of an alleged victim's sexual orientation is typically inadmissible. An example of this can be seen in the opinion of the Court of Appeals of Utah in State v. Steele, 2021 WL 1307481 (Utah App. 20201).

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April 8, 2021 | Permalink | Comments (0)

Wednesday, April 7, 2021

Southern District of Mississippi Finds a Successful Physician Who Would Need to Temporarily Shut Down His Practice to Testify is Not "Unavailable"

Federal Rule of Evidence 804(b)(1) provides an exception to the rule against hearsay for

Testimony that:

(A) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and

(B) is now offered against a party who had — or, in a civil case, whose predecessor in interest had — an opportunity and similar motive to develop it by direct, cross-, or redirect examination.

But, before "former testimony" is admissible under Rule 804(b)(1), the declarant must be deemed "unavailable" under Rule 804(a). So is a successful and busy doctor "unavailable" if he would have to shut down his practice for an extended period to testify? That was the question addressed by the United States District Court for the Southern District of Mississippi in its recent opinion in Stonestreet v. United States et al., 2021 WL 1268375 (S.D.Miss. 2021).

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April 7, 2021 | Permalink | Comments (0)

Tuesday, April 6, 2021

Sixth Circuit Finds Jurors in Civil Cases Must be Able to Impeach Their Verdicts Based on Racial Bias During Deliberations

In Pena-Rodriguez v. Colorado, the Supreme Court held

that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.

The Sixth Amendment only applies to criminal prosecutions, but the Sixth Circuit has now held that Pena-Rodriguez applies in criminal cases as well.

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April 6, 2021 | Permalink | Comments (0)

Monday, April 5, 2021

Article of Interest: "Endogenous and Dangerous," by Brian Larson

Professor Brian Larson (Texas A&M University School of Law) has posted "Endogenous and Dangerous" on SSRN. Here is the abstract:

As far as we know, Aristotle was the first Westerner to formalize logic, about 2,500 years ago. But he recognized immediately that the valid deductive forms of reasoning he described do not take us far in reasoning about human affairs. Nevertheless, contemporary law scholars talk about rule-based and deductive reasoning as if it exists in the law. But all legal arguments, even apparently deductive ones, are subject to defeat by counterargument—they are ‘defeasible.’ This article’s first significant contribution is to provide the first exhaustive treatment in the American legal literature of the rational bases upon which defeasible legal deductions and legal analogies may be built and the critical questions or defeaters that can weaken or bring them down. It shows that legal analogies are in a sense more defeasible, and thus more complex, than legal deductions, and it suggests that legal policy arguments are more defeasible still. It is no surprise then that a previous study showed that judges prefer rule-based arguments or legal deductions in their opinions over legal analogies, and legal analogies over policy-based arguments.

But what happens when judges build these arguments around cases that the parties have not cited—‘endogenous cases’? Studies suggest that judges do so about half the time. The theory of defeasible arguments suggests judges should be reluctant to do so, and they should be most reluctant to do so with legal analogies and policy arguments. But until now, no study has examined how judges use endogenous cases. This article’s second significant contribution is an empirical study of cases judges cited in a random sample of federal district court opinions, identifying where they found them and how they used them. It also identifies a hierarchy of badness among endogenous case uses, warning judges away from the most dangerous. It concludes that judges should avoid endogenous cases or, at a minimum, permit the parties to argue the cases before their application. Though the opinions studied here were from federal trial courts, the principles extend to any tribunal that uses opinions from previous cases to guide its decision-making.


April 5, 2021 | Permalink | Comments (0)

Sunday, April 4, 2021

Southern District of Indiana Finds Statement About Employee's Tenacity During Mediation Inadmissible Under Rule 408

Federal Rule of Evidence 408(a) states 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.

So, what if a statement is made during negotiation/mediation but not by a part to that negotiation/mediation? That was the question addressed by the United States District Court for the Southern District of Indiana in its recent opinion in Geng v. Spencer, 2021 WL 1225923 (S.D.Ind. 2021).

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April 4, 2021 | Permalink | Comments (0)

Friday, April 2, 2021

Sixth Circuit Finds a Class Can be Certified Based Solely on Inadmissible Evidence

Plaintiffs seeking to bring a class action must receive class certification. For example, Lyngaas v. Ag, 2021 WL 1115870 (6th Cir. 2021),

involve[d] two unsolicited fax advertisements received by Brian Lyngaas, D.D.S., in March 2016. Lyngaas asserts, on behalf of himself and all similarly situated class members, that Curaden AG and its U.S. subsidiary, Curaden USA, violated the Telephone Consumer Protection Act (TCPA).

So, can a court grant class certification based solely on inadmissible evidence?

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April 2, 2021 | Permalink | Comments (0)

Thursday, April 1, 2021

SDNY Finds 1997 Conviction Inadmissible to Impeach Criminal Defendant

Federal Rule of Evidence 609(b) states the following:

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

As the Advisory Committee's Note to the Rule makes clear

It is intended that convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. The rules provide that the decision be supported by specific facts and circumstances thus requiring the court to make specific findings on the record as to the particular facts and circumstances it has considered in determining that the probative value of the conviction substantially outweighs its prejudicial impact. It is expected that, in fairness, the court will give the party against whom the conviction is introduced a full and adequate opportunity to contest its admission.

The recent opinion of the United States District Court for the Southern District of New York in United States v. Tagliaferro, 2021 WL 1198951  (S.D.N.Y. 2021), is no exception.

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April 1, 2021 | Permalink | Comments (1)

Wednesday, March 31, 2021

Eighth Circuit Punts on Question of Whether a Social Worker Can Testify That a Defendant is Not Attracted to Minors

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.

So, under Rule 704(b), can a defendant charged with attempted enticement of a minor and travel with intent to engage in illicit sexual conduct call a social worker to testify that the defendant is not attracted to minors? That was the question of first impression addressed by the Eighth Circuit in its opinion today in United States v. Willins, 2021 WL 1201384 (8th Cir. 2021).

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March 31, 2021 | Permalink | Comments (1)

Tuesday, March 30, 2021

Article of Interest: "Forensic Science and the Judicial Conformity Problem," by Katie Kronick

Professor Katie Kronick (American University Washington College of Law) has posted "Forensic Science and the Judicial Conformity Problem" (Seton Hall Law Review, forthcoming) on SSRN. Here is the abstract:

Almost a quarter of known wrongful convictions have involved faulty forensic science evidence. Since 2008, a series of government-sponsored reports reveals that many areas of forensic science are not only vulnerable to human error, but also lack scientific or evidentiary support for the conclusions they purport to reach. This includes fingerprint analysis, firearm and toolmark examination, bitemark comparison, and hair microscopy. Yet judges continue to admit this expert testimony in criminal cases ranging from homicide to firearm possession to sexual assault without the critical analysis one might expect given the now well-identified problems and the stakes at hand.

This Article explores whether pressure on judges to conform with their peers is a contributing influence to forensic science judicial decision-making and whether judges are admitting faulty or questionable forensic science evidence because they find it reliable or rather because they feel pressure to maintain the norm of admitting such evidence. The “conformity problem” is an interrelationship among the judge’s desire to conform, her personally held beliefs, and the impact of those seeking to exert influence on judicial decisions. This problem, however, is not irreversible. Some judges’ personal characteristics, such as a particular interest in evidentiary issues, may make them more open to forensic science challenges and willing to deviate from the norm. Once these judges decide to limit or exclude questionable forensic evidence, other judges are more likely to deviate. Eventually a new norm—one in which judges critically analyze this evidence—can be established.

After discussing the theoretical underpinnings of the conformity problem and its application to judicial decision-making on forensic science evidence, this Article examines three examples of the conformity problem in judicial decision-making: New Jersey eyewitness identification cases and District of Columbia and Massachusetts firearm and toolmark examination cases. The Article concludes that if even a handful of judges issue decisions properly limiting or excluding forensic science, other courts will follow, the norm will change, and judges will exercise more appropriate critical analysis of forensic science evidence.


March 30, 2021 | Permalink | Comments (0)

Monday, March 29, 2021

Ninth Circuit Grants New Trial After Jury Clears LAPD Officers Who Tased Alex Aguilar 5 Times & Punched Him 3 Times

As the trial of Derek Chauvin in connection with the death of George Floyd began today, the trial related to the death of Alex Aguilar, Jr. is set to start again.

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March 29, 2021 | Permalink | Comments (1)

Sunday, March 28, 2021

Does the Rule From Torres v. Madrid Apply to Unintended Victims?

In its opinion last week in Torres v. Madrid, the Supreme Court held "that the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued." This leaves open a few questions, including the question of whether there is a seizure when a police officer applies physical force to the body of a person with the intent to restrain someone else.

There is currently a petition for writ of certiorari before the Supreme Court that involves this exact issue.

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March 28, 2021 | Permalink | Comments (0)