EvidenceProf Blog

Ninth Circuit Finds Expert Testimony About the Retail Value of Fentanyl Was Admissible in Prosecution For Importing Drugs

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.

So, is evidence by law enforcement experts about the retail value of narcotics relevant to charges of importing illicit drugs? That was the question addressed by the Ninth Circuit in its recent opinion in United States v. Velazquez, 2025 WL 251684 (9th Cir. 2025).

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Are Google Translate Translations Inadmissible Hearsay?

According to an article in the Ireland Independent,

A District Court judge has warned that evidence obtained from a defendant by using Google Translate is ‘hearsay’ which could be challenged in court....

Boncho Asenov was disqualified from driving at Cashel District Court for a combined total of three years in relation to motoring offences....

Garda Grogan said she activated the blue flashing lights and stopped Mr Asenov. She performed a search and observed that an open bottle of beer was present in the vehicle. Mr Asenov “appeared nervous,” she said.

Mr Asenov underwent a breath test which showed a ‘fail’ result. Garda Grogan said she had to use Google Translate to communicate with the driver. Mr Asenov was subsequently arrested and placed in the back of a garda car. They arrived at Cahir garda station at 3.15pm....

Garda Grogan said she activated the blue flashing lights and stopped Mr Asenov. She performed a search and observed that an open bottle of beer was present in the vehicle. Mr Asenov “appeared nervous,” she said. Mr Asenov underwent a breath test which showed a ‘fail’ result. Garda Grogan said she had to use Google Translate to communicate with the driver. Mr Asenov was subsequently arrested and placed in the back of a garda car. They arrived at Cahir garda station at 3.15pm.

So, is the judge right, at least under the definition of "hearsay" used by United States courts?

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Concurring Supreme Court of Alabama Justice Calls for the State to Apply the Daubery Standard to Non-Scientific Expert Evidence

Prior to 2011, Alabama determined the admissibility of expert evidence by applying the Frye test, which asks a judge to consider whether an expert technique or technology is "generally accepted" in the relevant expert community (e.g., whether latent fingerprint comparison is generally accepted in the biometric community). In 2011, Alabama cut bait with Frye and amended Alabama Rule of Evidence 702(b) so that it now reads as follows:

(b) In addition to the requirements in section (a), expert testimony based on a scientific theory, principle, methodology, or procedure is admissible only if:

(1) The testimony is based on sufficient facts or data;

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

(3) The witness has applied the principles and methods reliably to the facts of the case.

In doing so, Alabama adopted the Daubert standard that requires judges to serve as gatekeepers and independently assess the reliability of expert evidence. But Alabama courts have held that a judge only needs to conduct a Daubert hearing if the expert evidence at issue is scientific in nature. And that has caused a concurring justice in MBN 500-1200 Buildings, LLC v. Alabama Department of Revenue, 2025 WL 224489 (Ala. 2025), to argue that Alabama should hold Daubert hearings even for expert evidence of the non-scientific variety.

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Fourth Circuit Advises District Court to Appoint a Court Expert in "MOKE" v. "MOKE" Trademark Case

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.

A common refrain among courts is that trial judges have broad discretion over whether to appoint court experts under Rule 706(a), see, e.g., Stevenson v. Windmoeller & Hoelscher Corp., 39 F.4th 466, 470 (7th Cir. 2022), with judges rarely using that discretion to appoint such experts. 

I've never seen a circuit court advise a district court to exercise its authority under Rule 706(a) before reading the Fourth Circuit's recent opinion in Moke America LLC v. Moke International Limited, 2025 WL 97411 (4th Cir. 2025).

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Court of Appeals of Mississippi Notes That 10+ Year Old Convictions For Crimes of Dishonesty Are Subject to Strict Balancing Test

Similar to its federal counterpart, Mississippi Rule of Evidence 609(a)(2) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:...

(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.

Moreover, similar to its federal counterpart, Mississippi Rule of Evidence 609(b) provides that

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.

So, does the stringent balancing test of Rule 609(b) apply to convictions of dishonesty or false statement that are more than ten years old? That was the question addressed by the Court of Appeals of Mississippi in its recent opinion in Davis v. State, 2025 WL 87129 (Miss. App. 2025).

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Supreme Court of Delaware Finds Defendant Can't Claim Involuntary Intoxication Based On Thinking He's Taking One Illegal Drug, But Actually Ingesting a Different One

Most jurisdictions allow criminal defendants to raise an involuntary intoxication defense that can absolve them of criminal liability if they unknowingly ingested drugs or alcohol to the point of intoxication. Imagine, for instance, that a defendant thinks she's eating regular brownies which end up being pot brownies and then is pulled over for DUI. The defendant would be able to raise involuntary intoxication as a defense. But could a defendant present expert evidence and raise an involuntary intoxication defense if she thinks she's taking one type of illegal drug, but ends up ingesting another illegal drug? That was the question addressed by the Supreme Court of Delaware in its recent opinion in Wilkerson v. State, 2025 WL 39625 (Del. 2025).

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Mississippi Judge Calls For Elimination of Spousal Testimonial Privilege

Mississippi Rule of Evidence 601(b) states the following:

(b) Competency of Spouse. If one spouse is a party, the other spouse may not testify as a witness in the case unless both consent, except:

(1) when called as a witness by the spouse who is a party;

(2) in a controversy between them; or

(3) in a criminal case for:

(A) a criminal act against a child;

(B) contributing to the neglect or delinquency of a child;

(C) desertion or nonsupport of a child under 16; and

(D) abandonment of a child.

Meanwhile, Mississippi Rule of Evidence 504(b) states the following:

(b) General Rule of Privilege. A person has a privilege to prevent the person’s current or former spouse from testifying in a civil or criminal case about any confidential communication between them.

So, in 2025, does the spousal testimonial privilege in Rule 601(b) still make sense? The answer is "no" according to a concurring judge in Gibson v. State, 2025 WL 87130 (Miss. App. 2025).

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Third Circuit Finds Expert's Testimony That Recovered Memories Are No Less Accurate Than Continuous Memories Was Improperly Admitted

Federal Rule of Evidence 702 provides 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 the proponent demonstrates to the court that it is more likely than not that:

(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's opinion reflects a reliable application of the principles and methods to the facts of the case.

Under the federal rules, courts apply Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to determine whether expert testimony is sufficiently reliable to be admissible. The recent opinion of the Third Circuit in Cohen v. Cohen, 2025 WL 45704 (3rd Cir. 2025), provides a good example of Rule 702 in action.

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Baltimore Prosecutors Agree With Defense That Adnan Syed's Life Sentence Should be Commuted to Time Served

As reported in the Baltimore Sun,

In a circuit court filing Sunday, Baltimore prosecutors agreed with Adnan Syed that his life sentence should be reduced to time served in the 1999 killing of his high school sweetheart, Hae Min Lee, which drew national attention in 2014 as the focus of the podcast “Serial.”

If approved by a judge, the development means Syed — who was released in 2022 amid legal challenges to his convictions on murder, robbery and kidnapping charges — will likely never return to prison, even if Baltimore State’s Attorney Ivan Bates refuses to overturn Syed’s judgment of guilt as the previous state’s attorney recommended.

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Case Against Men Accused of Shooting at FedEx Driver Features Rare Dismissal Due to Brady Violation

According to a Mississippi Free Press article, 

A Lincoln County judge on Monday dismissed all charges against two white men who prosecutors accused of shooting at D’Monterrio Gibson, a Black FedEx driver, while he was making deliveries in Brookhaven, Miss., in January 2022.

The article goes onto note that

Mississippi Circuit Court Judge David Strong declared a mistrial on Aug. 17, 2023, citing the fact that Brookhaven Police Department Detective Vincent Fernando withheld a recorded interview he conducted with Gibson at the police station after the incident. The judge said he improperly testified about finding guns in the home of one of the defendants and shell casings outside.

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Supreme Court of Maine Finds Statement Made 20 Minutes After Aggravated Domestic Assault Qualified as an Excited Utterance

Similar to its federal counterpart, Maine 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 that it caused."

So, would a statement by a victim of aggravated domestic assault made about twenty minutes after the assault qualify as an "excited utterance" under this rule? That was the question addressed by the Supreme Court of Maine in its recent opinion in State v. Sheppard, 2024 WL 5250190 (Me. 2024).

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Oregon Judges Denies Motion for New Trial Based on Jurors Zooming in on Video Footage Because the Prosecutors "Hadn't Done Their Job"

Federal Rule of Evidence 606(b) states the following:

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited Testimony or Other Evidence. 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.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

Interestingly, in Ertsgaard by Ertsgaard v. Beard, 800 P.2d 759 (Or. 1990), the Supreme Court of Oregon specifically noted that Oregon has not adopted Rule 606(b), "apparently believing that Oregon case law adequately stated the circumstances under which a court may inquire into the validity of a jury's verdict."

I haven't found any significant precedent fleshing out Oregon law on jury impeachment, but a case that was just decided might fill that void.

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Court Finds Statement to Police Officer 10-15 Minutes After a Shooting Was Not a Present Sense Impression

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 before a statement is no longer made "immediately after" perceiving an event or condition? That was the question addressed by the United States District Court for the District of Oregon in its recent opinion in Clark v. Farr, 2024 WL 4652129 (D. Oregon 2024).

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Supreme Court of Virginia Finds Admission of Video From Police Officer's Body-Worn Camera Didn't Violate the Confrontation Clause

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." Moreover, in Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial."

So, does the admission of video from a police officer's body-worn camera violate a criminal defendant's rights under the Confrontation Clause? This was the question of first impression addressed by the Supreme Court of Virginia in its recent opinion in Baez v. Commonwealth, 2024 WL 5160826 (Va. 2024).

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My New Article: "A Constitutional Right to Exclude Evidence"

My new article, "A Constitutional Right to Exclude Evidence," has been published in the Texas A&M Law Review. Here is the abstract:

The Supreme Court has held that criminal defendants have a constitutional right to introduce evidence and a constitutional right to receive evidence, but it has never recognized a constitutional right to exclude evidence. Specifically, the Supreme Court has issued numerous rulings finding that the Due Process Clause demands that (1) defendants have the right to present a defense that trumps the rules of evidence; (2) the prosecution must disclose material exculpatory evidence to the defense; (3) the State has certain duties to preserve evidence so that it can be disclosed to the defense; and (4) any discovery obligations on defendants must be accompanied by reciprocal obligations on the prosecution. As a result, defendants know how to assert these rights, and courts have clear guidance to decide whether they were violated, allowing for wrongful convictions to be both prevented and overturned.

Conversely, the Court has never made clear the circumstances in which the State’s admission of unfairly prejudicial evidence violates a defendant’s right to due process. In the absence of such a ruling, courts frequently admit evidence that poses a high danger of unfair prejudice unless it merely has minimal probative value. As a result, wrongful convictions connected to such evidence can neither be corrected nor prevented. This Article argues that courts should recognize a constitutional right to exclude evidence. Under this right, even if unfairly prejudicial evidence satisfies the rules of evidence, its admission would violate the Due Process Clause if it renders a defendant’s trial fundamentally unfair.

-CM

Supreme Court of Rhode Island Addresses the Question of When Judges Cross the Line When Interrogating Witnesses

Similar to its federal counterpart, Rhode Island Rule of Evidence 614(b) provides that

The court may interrogate witnesses, whether called by itself or by a party.

I can't remember reading a single case in which a judge has violated Rule 614(b) in questioning a witness, and the recent opinion of the Supreme Court of Rhode Island in Rodrigues v. Cantone, 2024 WL 5135384 (R.I. 2024), is no exception. But that opinion does point to prior precedent in which that court concluded a judge crossed the line.

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Ninth Circuit Finds Feigned Memory Loss Can Trigger Hearsay Exclusion for Prior Inconsistent Statements

Federal Rule of Evidence 801(d)(1)(A) provides an exclusion to the rule against hearsay for:

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:

(A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....

So, does this hearsay exclusion for prior inconsistent statements cover a case in which the court concludes that a witness is making a dubious claim of memory loss at trial? That was the question addressed by the Ninth Circuit in its recent opinion in United States v. Shuemake, 2024 WL 5218473 (9th Cir. 2024).

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GBI Makes an Arrest of an Alternate Suspect in the Dennis Perry Case We Covered on Undisclosed

In 2018, in collaboration with the Georgia Innocence Project, we investigated and covered the Dennis Perry case on the Undisclosed Podcast. In 2003, Perry was convicted of the murders of Harold and Thelma Swain in the spring of 1985 at the Rising Daughter Baptist Church in Waverly, Georgia. Some of the witnesses to the murder said that the killer was wearing glasses, and a pair of glasses was found at the church that did not belong to anyone in the church that night. But, despite Perry having an alibi and not wearing glasses, he was convicted of the murders of the Swains after a cold case investigation.

During our investigation, there seemed to be solid evidence that a man named Erik Sparre was actually the murderer. Here is some of what we said about him on the podcast.

After the podcast, the Georgia Innocence Project looked into hair samples that were retrieved from the pair of glasses at the church. Thereafter,

On February 24, 2020, the Georgia Innocence Project obtained a hair sample from Gladys Sparre, Erik Sparre’s mother. It was submitted for mitochondrial DNA testing at the same laboratory that examined the hair samples from the eyeglasses in 2001. Mitochondrial DNA is passed from mothers to their children, meaning both generations have the same mitochondrial profile.

The lab reported that Gladys Sparre’s sample – and therefore any sample from Erik Sparre – had the same mitochondrial DNA profile as the samples from the glasses.

And now, yesterday, the Georgia Bureau of Investigations arrested Sparre for the double homicide of the Swains. I will provide further updates as the case proceeds to trial.

-CM

Supreme Court of Idaho Finds the State Failed to Present Proof Sexual Assault Victim's Statements to Nurse Were Made for Purposes of Diagnosis/Treatment

A big recurring question under evidence law is whether dual medical and forensic examinations of sexual assault victims satisfy the hearsay exception contained in Federal Rule of Evidence 803(4) and state counterparts. The latest example can be found in the recent opinion of the Supreme Court of Idaho in State v. Al Muthafar, 2024 WL 4997111 (Idaho 2024).

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Eleventh Circuit Finds Prior Inconsistent Statements Were Properly Admitted in Case Described as "The Wire" in Real Life

Federal Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay if

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:

(i) 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; or

(ii) to rehabilitate the declarant's credibility as a witness when attacked on another ground

Rule 801(d)(1)(B) was amended in 2014 to add the language that now forms subsection (ii). In the wake of the amendment, courts and scholars have grappled with the issue of whether a prior consistent statement is solely admissible under subsection (ii) if it addresses the precise issues upon which a witness was impeached. The latest example can be found in the recent opinion of the Eleventh Circuit in United States v. Graham, 2024 WL 4929254 (11th Cir. 2024).

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