EvidenceProf Blog

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

Saturday, September 18, 2021

Supreme Court of Wyoming Finds Statements on Bodycam Footage Were Admissible as Excited Utterances

Similar to its federal counterpart, Wyoming Rule of Evidence 803(2) provides an exception to the rule against hearsay for

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

As the recent opinion of the Supreme Court of Wyoming in Jackson v. State, 492 P.3d 911 (Wyo. 2021), makes clear, the court applies a five factor test for determining whether a statement qualified as an "excited utterance" under this exception.

Continue reading

September 18, 2021 | Permalink | Comments (1)

Tuesday, September 14, 2021

The Proposed Amendment to Federal Rule of Evidence 702

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. This is the third in a series of three posts about these amendments. The second proposed amendment is a proposed amendment to Federal Rule of Evidence 702, which currently states that

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Continue reading

September 14, 2021 | Permalink | Comments (0)

Wednesday, September 8, 2021

The Proposed Amendment to Federal Rule of Evidence 615

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. This is the second in a series of three posts about these amendments. The second proposed amendment is a proposed amendment to Federal Rule of Evidence 615, which currently states 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.

Continue reading

September 8, 2021 | Permalink | Comments (3)

Wednesday, September 1, 2021

Proposed Amendment Would Expand Rule of Completeness

In August, three proposed amendments to the Federal Rules of Evidence were released for public comment. The public comment period closes on February 16, 2022. In the next three posts, I will cover these proposed amendments. The first is a proposed amendment to Federal Rule of Evidence 106 (the rule of completeness), which currently states that

If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time.

Continue reading

September 1, 2021 | Permalink | Comments (1)

Saturday, August 28, 2021

Supreme Court of Arizona Eliminates Peremptory Challenges

The Supreme Court of Arizona has taken the landmark step of eliminating peremptory challenges from jury selection in both civil and criminal cases. So, what does this mean, and why did the court do it?

Continue reading

August 28, 2021 | Permalink | Comments (0)

Friday, August 27, 2021

My New Article: "Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause"

I have posted the working draft of my new article, "Rectifying Wrongful Convictions Through the Dormant Grand Jury Clause" (forthcoming, George Washington Law Review), on SSRN. Here is the abstract:

In 1995, Lamar Johnson was convicted of a murder in St. Louis. Twenty-two years later, St. Louis Circuit Attorney Kimberly Gardner created a Conviction Integrity Unit (CIU) to review possible wrongful convictions. After reviewing Johnson’s case, the CIU concluded that Johnson was innocent. Then, consistent with her special responsibility as a prosecutor to seek to remedy wrongful convictions, Gardner filed a motion for a new trial. The court, however, denied the motion, holding that there was no enabling legislation in Missouri authorizing CIUs to seek relief for wrongful convictions. Gardner is not alone in her inability to rectify wrongful convictions. While the number of CIUs has increased, most jurisdictions still do not have such a unit, and several CIUs exist in states that, like Missouri, lack enabling legislation.

Conversely, it has perhaps never been easier for prosecutors to commence criminal proceedings that culminate in wrongful convictions. The Fifth Amendment Grand Jury Clause provides that no person shall be subjected to a trial for felony charges unless there is a grand jury presentment or indictment. The grand jury’s historical mission was “to clear the innocent, no less than to bring to trial those who may be guilty,” and yet grand juries now return indictments in approximately 99% of cases. Meanwhile, the use of presentments waned in the wake of the Civil War and was effectively declared dead in the criminal charging context in 1946. Historically, however, grand jury presentments were used not only to accuse wrongdoers of criminal behavior but also to call attention to issues of public concern. With the demise of presentments in the criminal charging context, this other historical function of the grand jury has largely fallen into disuse.

This Article advances the original thesis that there is a dormant Grand Jury Clause that prosecutors can use to revive the common law power of presentment and fulfill their responsibility to rectify wrongful convictions. Under this dormant Grand Jury Clause, a prosecutor who believes her office previously secured a wrongful conviction can take the case to a grand jury. If the grand jury agrees with the prosecutor, it can submit a wrongful conviction presentment to a judge, who can vacate the conviction under the inherent power of the court. By doing so, prosecutors can restore some of the glory of the common law grand jury and create a powerful new tool to right wrongs.

Any feedback is welcome and appreciated.

-CM

August 27, 2021 | Permalink | Comments (1)

Wednesday, August 25, 2021

Western District of Louisiana Notes That Lay Witnesses May Be Able to Testify About Force-of-Impact in Car Crash Cases

Federal Rule of Evidence 701 provides that

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Rule 701 was amended in 2000, and the Advisory Committee's Note to that amendment states that

The amendment is not intended to affect the “prototypical example[s] of the type of evidence contemplated by the adoption of Rule 701 relat[ing] to the appearance of persons or things, identity, the manner of conduct, competency of a person, degrees of light or darkness, sound, size, weight, distance, and an endless number of items that cannot be described factually in words apart from inferences.”...

For example, most courts have permitted the owner or officer of a business to testify to the value or projected profits of the business, without the necessity of qualifying the witness as an accountant, appraiser, or similar expert.

So, could a lay witness testify about force-of-impact in a car crash case?

Continue reading

August 25, 2021 | Permalink | Comments (0)

Sunday, August 22, 2021

Sixth Circuit Finds No Brady Violation in Murder Appeal Despite State's Failure to Disclose That Its Key Eyewitness Said Defendant Was NOT the Shooter on Night of Shooting

Pursuant to Brady v. Maryland, the prosecution has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence to the defense. So, in a murder/shooting case with no physical/forensic evidence, does the State violate Brady by failing to disclose (1) that the State's key eyewitness, who had a longstanding relationship with the defendant, told the police on the night of the murder that the defendant was NOT the shooter; and (2) a police report regarding an alternate suspect? Those were the questions addressed by the Sixth Circuit in its opinion Friday in McNeill v. Bagley, 2021 WL 3701386 (6th Cir. 20201).

Continue reading

August 22, 2021 | Permalink | Comments (0)

Wednesday, August 18, 2021

Eighth Circuit Grants Qualified Immunity to Officer Who Handcuffed, Frisked & Pointed His Gun at Innocent 12 & 14 Year-Old Boys Walking From Grandparents' House

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The primary purpose of the doctrine “is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’” So, should there be qualified immunity in a case with these facts?

[T]he Springdale Police received a tip that a woman with outstanding arrest warrants was staying in the house of a suspected gang member. During a stakeout to find that woman, an officer saw multiple people leave in a Chevy Cobalt, including two men—one smaller than the other. Another officer tried to stop the Cobalt. But the driver fled and eventually crashed the car. Four people ran from the scene: two went south and two north. Dispatch instructed officers to set up a perimeter around the site to stop the fleeing suspects.
Officer Marzolf responded to the dispatch call. As he approached an intersection near the crash site with his blue lights flashing, dispatch told him that when the police last encountered one of the four fleeing suspects he had a gun.
 
Soon after, Officer Marzolf saw two people (later identified as W.Y. and S.Y.) walking slowly toward him within the perimeter wearing hoodies and light-colored pants. One was taller than the other. Officer Marzolf turned on his headlights and angled his car toward the boys. He stopped and said, “Hey, what are you guys doing?” W.Y., the taller and older boy, responded by speaking and pointing past Officer Marzolf. The dash cam video does not convey his response. Officer Marzolf then said, “Hey, stop, stop, turn away, turn away from me.” The boys did so with their arms at their sides. Then, Officer Marzolf entered the video frame with his gun pointed at the boys.
 
Officer Marzolf then asked, “What are your names?” He next pulled out his flashlight and pointed it at the boys’ backs. One of the boys said his name multiple times. Officer Marzolf confirmed the name and kept his gun trained on the boys.
 
Then, the boys’ mother, Casondra Pollreis, walked up and said, “Officer, officer, may I have a word with you?” While she said more, her exact words are unclear from the recording. Officer Marzolf then spoke into his radio: “45 Springdale, I've got [W.Y.] in front of me, I've got two juvenile individuals, dark hoodies and pants.” Sergeant Kirmer responded, “OK, detain both of those.” After confirming with Officer Marzolf that one was taller and the other was short and skinny, Sergeant Kirmer repeated, “Hold on to them please.”
 
Officer Marzolf walked up to the boys with his gun pointed at them and told them to get on the ground. They complied. He then said, “Put your hands out.” They complied. Pollreis walked toward Officer Marzolf and asked what happened. Officer Marzolf told her to step back multiple times. She said, “They're my boys.” He then stepped toward her with his gun still pointed at the boys and said, “I am serious get back.” He drew his taser, pointed it at her, and ordered her to go back to her house. She asked, “Are you serious? They're twelve and fourteen years old.” Officer Marzolf responded, “And I'm looking for two kids about this age right now, so get back to your house.” An upset Pollreis then exclaimed, “Oh, my god. You're OK guys, I promise.”
 
Officer Marzolf continued to stand over the boys for nearly two minutes with his gun pointed at them. During those two minutes, he asked the boys for identification and requested backup.
 
The boys’ stepfather then approached and said, “Officer...can I have a word with you?” Officer Marzolf declined. The stepfather stated, “Those are my kids,” and Officer Marzolf responded, “OK.” The stepfather explained, “We just left [Pollreis's] parents’ right there. When you guys passed with your lights on, they were walking behind my car. I also have witnesses if you want me to call them.” Officer Marzolf responded, “That's fine, I just need to find out who these kids are right now.” The boys’ stepfather stated their names.
 
Another officer, Adrian Ruiz, arrived at the scene. At the same time, W.Y. reached back to adjust his shirt or belt and Officer Marzolf yelled, “Hey, keep your hands out!” Both officers walked toward the boys with their guns pointed at them. While Officer Ruiz continued to point his gun at the boys, Officer Marzolf holstered his weapon and handcuffed W.Y. Officer Ruiz handcuffed S.Y. Officer Marzolf then told dispatch, “I've got black hoodies and khaki pants and jeans.” Officer Ruiz said, “Black hoodie, and a white backpack....”
 
Sergeant Franklin, the officer in charge, arrived next. He immediately asked the boys if they ran from the police. The boys said no and explained: “We were at our grandparents...and we just started walking home.” When Sergeant Franklin asked their names, they told him. Officer Marzolf then frisked W.Y. and searched his pant pockets for weapons. Sergeant Franklin asked Officer Marzolf if they were running. Officer Marzolf replied, “No, they were just walking, sir.” Sergeant Franklin responded, “OK. So these guys probably aren't them?” And Officer Marzolf said, “Probably not. I mean we had both parents come out.”
The boys’ grandparents then walked up and identified the boys to the officers. At that time, Officer Ruiz searched S.Y.’s backpack. After speaking with the grandparents, Sergeant Franklin ordered the officers to remove the handcuffs and let the boys go.

Continue reading

August 18, 2021 | Permalink | Comments (1)

Sunday, August 15, 2021

Sixth Circuit Finds Prosecutor Had No Duty to Learn About Department of Corrections Mental Health Records For State's Witness

Pursuant to Brady v. Maryland, the State has an affirmative obligation under the Due Process Clause to timely disclose material exculpatory evidence to the defense. Moreover, Kyles v. Whitley stands for the proposition that an"individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." So, does that duty to learn include a duty to learn about mental health records kept by a department of corrections concerning a key witness for the prosecution? That was the question addressed by the Sixth Circuit in its recent opinion in Hall v. Mays, 2021 WL 3355480 (6th Cir. 2021).

Continue reading

August 15, 2021 | Permalink | Comments (0)

Saturday, August 14, 2021

Illinois Court Finds Statement Against Interest Inadmissible Due to Failure to Prove Unavailability

Similar to its federal counterpart, Illinois Rule of Evidence 804(b)(3) 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, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

But, before such a "statement against interest" can be offered under this hearsay exception, the proponent must first establish that the declarant (the person who made the statement) is "unavailable" under Illinois Rule of Evidence 804(a). This unavailability requirement was the problem for the defendant in People v. Morris, 2021 WL 3578943 (Ill.App.2d 2021).

Continue reading

August 14, 2021 | Permalink | Comments (0)

Friday, August 13, 2021

Eastern District of Missouri Denies Motion for Appointment of Court Expert

Federal Rule of Evidence 706(a) provides that

On a party’s motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations. The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act.

But does a judge have to appoint a court expert upon request by one of the parties? That was the question addressed by the United States District Court for the Eastern District of Missouri in its recent opinion in Holt v. Qualified Trucking Services, Inc., 2021 WL 3525179 (E.D.Mo. 2021).

Continue reading

August 13, 2021 | Permalink | Comments (0)

Thursday, August 12, 2021

Texas Court of Appeals Finds Juror's Note Inadmissible Under Rule 606(b)

Similar to its federal counterpart, Texas Rule of Evidence 606(b)(1) provides that

During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

So, does this rule also apply to a note sent by a juror to the judge during the punishment phase of trial? That was the question addressed today in State v. Gallien, 2021 WL 3556016 (Tex.App. 2021).

Continue reading

August 12, 2021 | Permalink | Comments (0)

Sunday, August 8, 2021

Texas Court of Appeals Botches Impeachment Analysis

Texas Rule of Evidence 609(a) provides that

Evidence of a criminal conviction offered to attack a witness’s character for truthfulness must be admitted if:

(1) the crime was a felony or involved moral turpitude, regardless of punishment;

(2) the probative value of the evidence outweighs its prejudicial effect to a party; and

(3) it is elicited from the witness or established by public record.

So, should a testifying criminal defendant's 10 year-old aggravated robbery conviction be admissible against him at his aggravated robbery trial? That was the question addressed by the Texas Court of Appeals, Waco, in Jones v. State, 2021 WL 3410473 (Tex.App. 2021).

Continue reading

August 8, 2021 | Permalink | Comments (1)

Saturday, August 7, 2021

Eighth Circuit Grants Qualified Immunity to Officer Who Handcuffed & Searched Man Who Asked For His Name After He Refused to Arrest Man Who Broke Into His Truck

The qualified immunity doctrine insulates governmental agents from liability for unconstitutional acts as long “as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”  The primary purpose of the doctrine “is to protect them ‘from undue interference with their duties and from potentially disabling threats of liability.’” So, should there be qualified immunity in a case with these facts?

On July 7, 2017, [Jeffery] Just's truck ran out of gas near a St. Louis gas station, and, leaving his truck unattended, Just walked to the gas station to retrieve gasoline. When he returned, he found John Doe in his truck, rifling through its console. John Doe told Just that he entered the truck believing it to be his brother's and, realizing that it was not, exited the truck. Nevertheless, Just called 911 and reported this incident. John Doe left the scene. The Officers arrived approximately 30 to 45 minutes later. About the same time, a third party arrived, who called John Doe back to the scene. The third party and John Doe relayed their version of events to the Officers, explaining that John Doe thought Just's truck was his brother's and that Just had chased him while brandishing a knife. The Officers verified that his brother's truck had been recently impounded. Just denied having a knife or chasing John Doe.
The Officers said that Just and John Doe could leave. John Doe left. Just requested the Officers’ names, explaining that he was upset they did not arrest John Doe. As Just was taking Officer Kuykendall's name, Officer Kuykendall handcuffed Just and placed him in the squad car. The Officers then conducted a pat down search of Just, looking for the knife that he allegedly brandished. They did not find a knife on Just's person, and they did not search Just's truck. The Officers then asked John Doe to return to the scene and placed him in handcuffs, too. A St. Louis police sergeant arrived at the scene, and after some discussion, the Officers released Just and John Doe. No charges were lodged against either Just or John Doe.

Continue reading

August 7, 2021 | Permalink | Comments (0)

Wednesday, August 4, 2021

District of New Mexico Finds Fraud Judgment Admissible Under Rule 608(b)

Federal Rule of Evidence 608(b) provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose character the witness being cross-examined has testified about.

By testifying on another matter, a witness does not waive any privilege against self-incrimination for testimony that relates only to the witness’s character for truthfulness.

So, should an attorney be able to cross-examine a plaintiff about a prior judgment of fraud against him? That was the question addressed by the United States District Court for the District of New Mexico in its recent opinion in Auge v. Stryker Corp. and Howmedica Osteonics Corp., 2021 WL 3290693 (D.N.M. 2021).

Continue reading

August 4, 2021 | Permalink | Comments (0)

Sunday, August 1, 2021

Court Finds Rule 610 Didn't Preclude Religious Evidence in Vaccination Case

Similar to its federal counterpart, New Jersey Rule of Evidence 610 provides that

Evidence of a witness’ religious beliefs or opinions is not admissible to attack or support the witness' credibility.

As the language of this Rule and the opinion of the Superior Court of New Jersey, Appellate Division in M.A. v. A.A., 2021 WL 2711112 (N.J.App. 2021), make clear, evidence of a witness' religious beliefs is admissible for purposes beyond those prohibited in the Rule. 

Continue reading

August 1, 2021 | Permalink | Comments (0)

Saturday, July 31, 2021

Court of Criminal Appeals of Tennessee Finds Leading Questions to 9 Year-Old Victim Were Proper

Similar to its federal counterpart, Tennessee Rule of Evidence 611(c)(1) states that 

Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Leading questions should be permitted on cross-examination.

One circumstance where leading questions are necessary to develop a witness's testimony involves the direct examination of a child witness. One example can be found in the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Lee, 2021 WL 3197198 (Tenn.Crim.App. 2021).

Continue reading

July 31, 2021 | Permalink | Comments (0)

Thursday, July 29, 2021

Eighth Circuit Finds Prosecution Properly Authenticated Facebook Messages

Federal Rule of Evidence 901(b)(4) provides that

The following are examples only — not a complete list — of evidence that satisfies the requirement:...

(4) Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

So, what does it take to authenticate Facebook messages under Rule 901(b)(4)? That was the question addressed by the Eighth Circuit in its opinion today in United States v. Lamm, 2021 WL 3196472 (8th Cir. 2021).

Continue reading

July 29, 2021 | Permalink | Comments (0)

Wednesday, July 28, 2021

Court of Appeals of Virginia Finds Closed-Circuit Testimony by Child Victim Was Proper

Section 18.2-67.9 of the Virginia Code covers testimony by child victims and witnesses using two-way closed-circuit television. Specifically, subsection (D) states that

The child's testimony shall be transmitted by closed-circuit television into the courtroom for the defendant, jury, judge, and public to view. The defendant shall be provided with a means of private, contemporaneous communication with his attorney during the testimony.

So, what is contemporaneous communication? That was the question addressed by the Court of Appeals of Virginia in its recent opinion in Ruff v. Commonwealth, 2021 WL 3159780 (Va.App. 2021).

Continue reading

July 28, 2021 | Permalink | Comments (0)