EvidenceProf Blog

New Jersey Appellate Court Finds Coercive Police Interrogation Techniques Must Be Redacted Upon Request

Yesterday, the Superior Court of New Jersey, Appellate Division, issued a really interesting, and possibly first-of-its-kind, opinion on coercive interrogation techniques by police when they question a suspect. No, the opinion did not prohibit such techniques, but it did find that such techniques should be redacted from a video of the interrogation if they could goad the jury into believing the defendant is guilty.

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Florida Court Reverses Convictions, Concluding That Clergy Communications Privilege Applies to Religious Family Counseling

§ 90.505(2) of the Florida Statutes provides that

A person has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication by the person to a member of the clergy in his or her capacity as spiritual adviser.

So, does this clergy communications privilege apply in the context of religious family counseling? That was the question addressed by the District Court of Appeal of Florida, Third District, in its opinion yesterday in Castano v. State, 2025 WL 1386382 (Fla. App. 3d 2025).

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California Court Reverses Murder Conviction of Man Based on Improper Admission of Character Evidence That He Also Attacked a Defenseless Man in a Wheelchair

Propensity character evidence is evidence of a person's character to prove their propensity to act in a certain way, i.e., "once a burglar, always a burglar." Such evidence is generally inadmissible for a few reasons, including (1) fear that jurors will think the person can't change; (2) fear that the jurors will conclude that the person should be punished for their bad character, regardless of whether they're guilty of the crime charged; and (3) protecting defendants from having to defend themselves against crimes not charged in the indictment. I've seen many cases involving prejudicial propensity character evidence being improperly admitted, but all of them are topped by the Jake Combs case.

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Eleventh Circuit Denies Qualified Immunity to Officer Who Choked and Punched a Subdued Driver

Is a police officer who choked and punched a subdued driver entitled to qualified immunity? That was the question addressed by the Eleventh Circuit in its recent opinion in Jones v. Ceinski, 2025 WL 1338079 (11th Cir. 2025).

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Court of Criminal Appeals of Texas Finds Failure to Instruct Jury on Causation in Murder Trial Caused the Defendant "Egregious Harm"

Under Texas law, if a criminal defendant fails to object to an error in the jury instructions, an appellate court will only reverse if the error caused him "egregious harm." So, is there "egregious harm" to a defendant being prosecuted for murder when the jury instructions fail to require the jury to find that the defendant caused the victim's death? That was the question addressed by the Court of Criminal Appeals of Texas in its recent opinion in Alkayyali v. State, 2025 WL 1318487 (Tex.Crim.App. 2025).

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Court of Appeals of North Carolina Reverses Murder Conviction Based on Defense Counsel Admitting Client's Guilt Without His Consent

Pursuant to the Supreme Court's opinion in McCoy v. Louisiana, 584 U.S. 414 (2018),

With individual liberty—and, in capital cases, life—at stake, it is the defendant’s prerogative, not counsel’s, to decide on the objective of his defense: to admit guilt in the hope of gaining mercy at the sentencing stage, or to maintain his innocence, leaving it to the State to prove his guilt beyond a reasonable doubt. 

Similarly, in State v. Harbison, 315 N.C. 175, 179 (1985), the Supreme Court of North Carolina held that

When counsel admits his client's guilt without first obtaining the client's consent, the client's rights to a fair trial and to put the State to the burden of proof are completely swept away. The practical effect is the same as if counsel had entered a plea of guilty without the client's consent.

A good example of defense counsel violating the right to autonomy recognized in McCoy and Harbison can be found in the recent opinion of the Court of Appeals of North Carolina in State v. Meadows, 2025 WL 1317705 (N.C. App. 2025).

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Supreme Court of Delaware Rules Trial Judge Must Preview Prosecutor's Video Before Overruling Defense Objection to its Admission

Assume that the prosecution plans to introduce a video at a defendant's trial. If the defense objects and the prosecution makes a proffer regarding what the video will depict, can the judge rely on that proffer in allowing the prosecutor to show the jury the video? Or should there be a per se rule that the judge must watch the video before it's displayed to the jury? That was the question of first impression addressed by the Supreme Court of Delaware in its recent opinion in Ford v. State, 2025 WL 1257476 (Del. 2025).

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Arizona Court Allows Artificial Intelligence Victim Impact Statement That Allows Victim to "Speak" From the Grave

After finding that victim impact statements at the sentencing stage of a capital trial violate the Eighth Amendment in Booth v. Maryland, 482 U.S. 496 (1987), the Supreme Court changed course in Payne v. Tennessee, 501 U.S. 808 (1991), finding that a victim impact statement is admissible unless it "is so unduly prejudicial that it renders the trial fundamentally unfair."

In 2008, the Supreme Court was asked to grant cert in Kelly v California, which consisted of two cases in which the victim impact statements contained photos and videos of the victim, music accompanying these images, and narration by loved ones. In dissenting from the denial of cert, Justice Stevens wrote

These videos are a far cry from the written victim impact evidence at issue in Booth and the brief oral testimony condoned in Payne. In their form, length, and scope, they vastly exceed the "quick glimpse" the Court's majority contemplated when it overruled Booth in 1991. At the very least, the petitions now before us invite the Court to apply the standard announced in Payne, and to provide the lower courts with long-overdue guidance on the scope of admissible victim impact evidence. Having decided to tolerate the introduction of evidence that puts a heavy thumb on the prosecutor's side of the scale in death cases, the Court has a duty to consider what reasonable limits should be placed on its use.

Now, with artificial intelligence, we have the first, and undoubtedly not the last, new type of victim impact statement: one from the victim "speaking" from the grave.

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Supreme Court of Alaska Rejects State's Request to Involuntarily Shave Head of Inmate With Lice, Finding Hairstyle is an Important Component of Identity and Self-Expression

How should a court handle a State's request to shave the head of a non-consenting inmate with lice? That was the question of first impression addressed by the Supreme Court of Alaska in its recent opinion in Matter of Lila B., 2025 WL 1272921 (Alaska 2025).

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Supreme Court of Minnesota Reverses Woman's Conviction, Finding Her Act of Exposing Her Breasts in Gas Station Parking Lot Was Not "Lewd"

Pursuant Minnesota Statutes section 617.23, subdivision 1(1),

Subdivision 1. Misdemeanor. A person who commits any of the following acts in any public place, or in any place where others are present, is guilty of a misdemeanor:

(1) willfully and lewdly exposes the person's body, or the private parts thereof

So, does a woman exposing her breasts in a gas station parking lot violate this indecent exposure statute? According to the recent opinion of the Supreme Court of Minnesota in State v. Plancarte, 2025 WL 1242804 (Minn. 2025), the answer is "no."

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Louisiana Case Deals With Strange "Dying Declaration" That The Victim Later Tried to Take Back

Similar to its federal counterpart, La. C.E. art. 804(B)(2) provides an exception to the rule against hearsay for

A statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

The recent opinion of the Court of Appeal of Louisiana, Second Circuit, in State v. Dunkentell, 2025 WL 1064287 (La. App. 2nd 2025), contains one of the stranger "dying declaration" rulings that I've ever seen.

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Court of Appeals of Utah Finds Deputy's Testimony That Defendant's Conduct Was "Intentional" Was NOT Improper Testimony on His State of Mind

Similar to its federal counterpart, Utah Rule of Evidence 704 states the following:

(a) In General - Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue.

(b) Exception. 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.

In State v. Jones, 2025 WL 1201701 (Utah App. 2025), the Court of Appeals of Utah found that a deputy's testimony did not violate Rule 704(b), but in a way that is tough to reconcile with the rule.

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3rd Circuit Finds Defendant's iPhone Was a "Computer" for Purposes of Sentencing Enhancement in Connection With Grindr Sting Operation

Is an iPhone a computer? That was the question at the heart of the recent opinion of the recent opinion of the Third Circuit in United States v. Wise, 2025 WL 1163532 (3rd Cir. 2025).

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Supreme Court of Indiana Finds No Issue With Seating a Juror Who Said His PTSD Might Cause Him To "Zone Out"

Should a trial judge excuse a prospective juror who says that photographic evidence of the victim's body might cause him to “zone out” and make it hard to pay attention to the evidence? That was the question addressed by the Supreme Court of Indiana in its recent opinion in Crossland v. State, 2025 WL 1176778 (Ind. 2025).

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10th Circuit Denies Qualified Immunity to Police Officer Who Claimed There Was No Clearly Established Law Preventing Him From Shooting Dog Who Posed No Danger

Police officers are entitled to "qualified immunity" unless their conduct violates clearly established federal law. In Love v. Grashorn, 2025 WL 1162842 (10th Cir. 2025), a police officer tried to claim that there was no clearly established law preventing him from shooting a dog who posed no imminent danger. As a matter of first impression, the Tenth Circuit rejected his claim.

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Court of Appeals of Michigan Reverses Convictions Because Trial Judge Wrongly Ruled Self-Defense is Not a Defense to Voluntary Manslaughter

Under Michigan law (as in most jurisdictions), murder is a killing with malice aforethought, with malice aforethought being defined as "(1) the intent to kill, (2) the intent to do great bodily harm, or (3) a wanton and willful disregard of the likelihood that the natural tendency of the defendant's act is to cause death or great bodily harm." Meanwhile, voluntary manslaughter is a lesser-included offense of murder. With voluntary manslaughter, the defendant presents evidence that he was provoked and acted in the heat of passion, negating the malice aforethought of murder. 

So, with such negation, does that mean that self-defense is not a defense to voluntary manslaughter? That's how the trial court ruled in the Terell Josey case, leading the Court of Appeals of Michigan to reverse his conviction this week in People v. Josey, 2025 WL 1165925 (Mich. App. 2025).

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Court of Appeals of Virginia Finds the Prosecutor Lacking a Valid Law License is NOT Grounds for Reversing a Conviction

It sounds like a story straight out of an episode of "Suits." Should a court reverse a defendant's conviction if the prosecutor who pursued the charges against him lacked a valid law license? But this was no TV show. It was real life and the basis for the opinion of the Court of Appeals of Virginia yesterday in Flores v. Commonwealth, 2025 WL 1160870 (Va. App. 2025).

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New York Judge Declares Mistrial After Prosecutor Plays Inadmissible Body Cam Footage Accusing Defendant of Being in a Gang

It is rare that a court will declare a mistrial based on a prosecutor's inadvertent error, with the general thinking being that a curative instruction can "cure" the error and tamp down the prejudice. For example, in People v. Windley, 181 A.D.2d 703 (N.Y. App. 2d 1992), the court concluded that the prosecutor inadvertently showing the jury the defendant's mugshot could be "cured" by a curative instruction, ruling as follows:

The prompt curative action of the trial court minimized any prejudicial effect of a prosecution witness's inadvertent reference to a “mug shot”..., and the trial court offered to deliver further curative instructions. The defendant rejected this offer and moved for a mistrial. The trial court was correct in denying this application since a mistrial is unwarranted when a less drastic remedy is available to cure the error

On the other hand, when the error is of a high magnitude, a curative instruction will fall short of the mark, and the court must declare a mistral. A good example can be found in a current case out of Schenectady.

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Court of Appeals of Colorado Recognizes the Risk of a "Getting Close to 5" Jury Instruction, But Doesn't Reverse Convictions

When jurors are deadlocked, many jurisdictions allow the judge to give an Allen instruction, asking them to continue deliberating and see if they can reach a unanimous verdict. But a Colorado case is the first time I've ever heard of a "getting close to 5" instruction, in which the judge take the temperature of a deliberating jury as 5 P.M. approaches on Friday. So, how did the court rule?

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Court of Appeals of Utah Reverses Manslaughter Conviction Based on Detective Improperly Testifying to Legal Conclusions

Similar to its federal counterpart, Utah Rule of Evidence 704(a) states that "An opinion is not objectionable just because it embraces an ultimate issue." But while witnesses can offer opinion testimony that embraces ultimate factual issues, they are not allowed to offer ultimate legal conclusions. A good example of this dividing line can be found in yesterday's opinion of the Court of Appeals of Utah in State v. Brown, 2025 WL 1131705 (Utah App. 2025).

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