EvidenceProf Blog

Eighth Circuit Addresses the Scope of the 2014 Amendment to the Prior Consistent Statement Hearsay Exclusion

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.

Subsection (ii) was added via a 2014 amendment, and courts are still trying to figure out the scope of this addition. The recent opinion of the Eighth Circuit in United States v. Begay, 2024 WL 4129017 (8th Cir. 2024), is the latest attempt to address this question.

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Fourth Circuit Finds Defendant Rap Lyrics Were Admissible After He Presented Good Character Evidence

Federal Rule of Evidence 404(a)(2)(A) provides that 

(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

One of the most controversial types of evidence that courts typically allow is rebuttal evidence of a defendant's rap lyrics after a defendant presents evidence of his good character. It's a phenomenon I've been writing about for years, including in my essay, Freedom of Character: Creating a Constitutional Character Evidence Test. A recent example can be found in the Fourth Circuit's opinion in United States v. Watkins, 111 F.4th 300 (4th Cir. 2020).

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Federal Rule of Evidence 605 and Judicial Functions

Federal Rule of Evidence 605 states that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

Courts have held that Rule 605 prohibits presiding judges both from testifying and giving the functional equivalent of testimony. So, what constitutes the functional equivalent of testimony in this context? The recent opinion of the Tenth Circuit in United States v. Flechs, 98 F.4th 1235 (10th Cir. 2024), provides good examples of when a judge might violate or not violate Rule 605.

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The Limitations of Federal Rule of Evidence 704(b) & How Prosecutors Frequently Circumvent It

Federal Rule of Evidence 704(b) provides 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.

Under this Rule, expert witnesses are not allowed to testify that the defendant had a particular mens rea (e.g., "The defendant possessed the drugs with intent to distribute."). But, as opinions such as the recent one by the Sixth Circuit in United States v. Xu, 2024 WL 4002876 (6th Cir. 2024), make clear, experts come come awfully close to saying this very thing.

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Court of Appeals of South Carolina Finds Rule 801(d)(2)(B) Applied to Defendant's Head Nod

Similar to its federal counterpart, South Carolina Rule of Evidence 801(d)(2)(B) provides an exclusion to the rule against hearsay for

The statement is offered against a party and is...a statement of which the party has manifested an adoption or belief in its truth.

The recent opinion by the Court of Appeals of South Carolina in State v. Gleaton, 2024 WL 3958596 (S.C. App. 2024), provides a good illustration of the rule in action.

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More on the Baffling Opinion of the Supreme Court of Maryland in the Adnan Syed Case

In yesterday's post on the Adnan Syed case, I noted that

the court ruled that (1) the notice given to Hae's family was not reasonable; (2) Hae's family had the right to attend in person; and (3) Hae's family has the right to be heard on the merits of the Motion. Out of the three rulings, the third one seems the most egregious and unprecedented, doing real damage to the innocence movement and cases in which the State and defense agree there was a wrongful conviction.

I think the dissenting opinion of Justice Booth (joined by Justices Hotten and Battaglia) does a great job of explaining the issues with this third ruling.

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Supreme Court of Maryland Remands Adnan Syed's Case for a New Hearing in a 4-3 Ruling

In a ruling that is 187 pages and has 2 dissents, the Supreme Court of Maryland remanded the Adnan Syed Case to Circuit court for a re-do of the Motion to Vacate his convictions. This is the second 4-3 ruling by Maryland's highest court to go against Adnan Syed in this case, coming on the heels of a 4-3 ruling denying him relief based on his trial attorney's failure to contact alibi witness Asia McClain. So, where do we stand with the case? This post will break things down.

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North Carolina Case Reveals That Inquiry Into Acts of Dishonesty Can Only Occur During Cross-Examination

Similar to its federal counterpart, North Carolina Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross‑examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross‑examined has testified.

As the Rule makes clear, such inquiry can only occur during cross-examination, which was the problem for the defendant in Matter of D.R.J., 2024 WL 3864002 (N.C. App. 2024).

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Eleventh Circuit Finds District Court Properly Excluded Lay Opinion Testimony That Was Based on Hearsay in Taxinet Case

Federal Rule of Evidence 701 states 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.

On the other hand, Federal Rule of Evidence 703 states that

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.

In other words, lay witnesses can only base their opinions on things rationally based on their perceptions, i.e., things they have experienced themselves. On the other hand, expert witnesses can be made aware of facts or data. Indeed, even if those underlying facts or data are inadmissible, experts can offer opinions based on them as long as experts in their field reasonably rely on such facts or data. For example, a doctor could base his opinion on a victim's cause of death in part based upon hearsay statements by family members.

A good example of the limitation on lay opinion testimony can be found in the recent opinion of the Eleventh Circuit in Taxinet Corp. v. Leon, 2024 WL 3863497 (11th Cir. 2024).

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New England Law Boston Seeks an Evidence Professor

New England Law | Boston invites applications from candidates for assistant professor positions to begin in the fall 2025 semester.We seek to hire individuals who are interested in teaching foundational courses, particularly Civil Procedure, Criminal Law, Property, and Torts, and upper-level courses in the areas of Criminal Procedure, Evidence, Family Law, and Tax Law. Applicants must possess a J.D. from an accredited U.S. law school or equivalent degree, must demonstrate a commitment to excellent teaching, and have strong scholarly potential and legal practice experience.  Review of applications will continue until the positions are filled. We will review candidate materials posted in the AALS Faculty Appointments Register (FAR), and also invite applications from candidates not participating in the FAR. Individuals interested in applying for a position should submit a letter of application, a résumé or curriculum vitae, a detailed statement of interest including teaching and research interests, and the names and contact information of three references. These materials should be submitted to the Faculty Appointments Committee, via email to [email protected], with the subject line "Faculty Appointments Committee." 

Lincoln Memorial University Duncan School of Law Seeks an Evidence Professor

Lincoln Memorial University Duncan School of Law in Knoxville, TN, seeks entry-level and lateral candidates for full-time, tenure-track faculty positions starting July 2025. LMU Law aims to provide legal education to students from underserved regions, focusing on practice-oriented training for diverse backgrounds. The goal is to produce graduates who will pass the bar and serve their communities, particularly addressing the legal needs of Appalachia and other underserved areas.

We welcome applications from all subject areas, with particular need for expertise in business associations, civil procedure, evidence, property, constitutional law, and criminal law and procedure. As we expand our predominantly online hybrid program, we seek candidates across all doctrinal areas and are particularly interested in those who would enjoy the challenges of online teaching.

Educating the next generation of lawyers is our top priority. Faculty members are committed to supporting students in their academic, professional, and personal development. Our campus design ensures faculty accessibility and active engagement in law school life. We work collaboratively to provide innovative legal education, incorporating skill-based and experiential learning and best practices from academic and bar success. We seek candidates who share this ethos and are excited to contribute.

Candidates must have a J.D. or equivalent, strong academics, and a commitment to legal education. We value diverse experiences, including teaching, scholarship, legal practice, clerkships, and post-law-school work. Candidates without teaching experience but showing promise in teaching and scholarship are welcome. This can be evidenced by involvement in student-focused activities, mentoring, educational presentations, writing for legal publications, or leadership in professional or community organizations.

This position offers a twelve-month contract with teaching responsibilities in alternate summers. Our tenure and promotion policies consider this when determining scholarship requirements.

We are committed to diversity and actively seek applications from underrepresented groups, including people of color, women, individuals with disabilities, LGBTQ+ individuals, and veterans. We value candidates who can enrich our community, program, and mission through their diverse life experiences, perspectives, and philosophies.

Our law school is located in downtown Knoxville, offering vibrant city life, a rich cultural scene, and stunning natural beauty with the Great Smoky Mountains as a backdrop. Knoxville has been recognized as one of the top 25 places to live in the United States.

Inquiries may be directed to Sydney Beckman, Chair of the Faculty Appointments Committee, at [email protected]. Applications can be submitted here and must include a cover letter detailing your interest in LMU Law, a CV, and a list of three professional references. Candidates are welcome, but not required, to provide a statement of teaching philosophy, research agenda, or diversity statement. Candidates invited for campus visits will be requested to provide teaching evaluations from the past three years, if available. The committee anticipates beginning application review immediately.

Supreme Court of Colorado Finds Juror Saying a Judge Told a Prior Jury That Their Verdict Needed to be Unanimous Not Grounds for Jury Impeachment

Similar to its federal counterpart, Colorado Rule of Evidence 606(b) states the following:

(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jurors' attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

So, imagine that a jury is initially deadlocked during deliberations before a juror

mentioned a previous jury they [sic] she served on, in which the jury was told by the judge “I don't want a hung jury, and I want you guys to stay as long as you need to become unanimous.” That juror stated that she was told in the previous trial by the judge that the jury must deliberate until a unanimous verdict was reached....The original juror who referenced her previous jury service, presented that information as the factual information about the law that the jury was required to reach a unanimous verdict.

Would this constitute extraneous prejudicial information, allowing for jury impeachment? According to the recent opinion of the Supreme Court of Colorado in Clark v. People, 2024 WL 3284574 (Colo. 2024), the answer is "no."

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The Key Difference Between Federal Rule of Evidence 614(a) and its Tennessee Counterpart

Federal Rule of Evidence 614(a) provides that 

The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.

The ability of the judge/court to call witnesses in more circumscribed under Tennessee law. Pursuant to Tennessee Rule of Evidence 614(a),

The court may not call witnesses except in extraordinary circumstances or except as provided for court-appointed experts in Rule 706, and all parties are entitled to cross-examine witnesses thus called.

So, what does this difference mean in practice?

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The Key Difference Between Federal Rule of Evidence 608(b) and its Pennsylvania Counterpart

In yesterday's post, I noted a key difference between Federal Rule of Evidence 608(b) and its Oregon counterpart. In this post, I'll note a key difference between Federal Rule of Evidence 608(b) and its Pennsylvania counterpart. Federal Rule of Evidence 608(b) provides in pertinent part 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.

On the other hand, Pennsylvania Rule of Evidence 608(b) states the following:

(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),

(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness' conduct; however,

(2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but extrinsic evidence thereof is not admissible.

So, what does this mean in practice?

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The Key Difference Between Federal Rule of Evidence 608(b) and its Oregon Counterpart

In pertinent part, 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.

Oregon's version of the rule, however, is different.

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The Difference Between Massachusetts and Federal Law on Dying Declarations

Federal Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil case, [for] a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances.

As with other Rule 804(b) hearsay exceptions, Rule 804(b)(2) only applies if the declarant is "unavailable," which could be based upon the declarant dying soon after making the subject statement, but also could be based upon the declarant (1) dying days later; or (2) miraculously surviving, but suffering from memory loss (along with other types of unavailability). 

Massachusetts doesn't have official rules of evidence, but it does have a guide to evidence that sets forth the state's precedent on evidence law, and its "version" of Rule 804(b)(2) is a little different. It provides an exception to the rule against hearsay

In a prosecution for homicide, [for] a statement that a declarant, who believed that the declarant’s death was imminent and who died shortly after making the statement, made about the cause or circumstances of the declarant’s own impending death or that of a co-victim.

This same "rule" is stated in the recent opinion of the Appeals Court of Massachusetts in Commonwealth v. Monegro, 2024 WL 3579911 (Mass. App. 2024). So, when would this "rule" reach a different conclusion than the federal rule?

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Southwestern Law School Seeks an Evidence Professor

SOUTHWESTERN LAW SCHOOL in Los Angeles invites applications for the following positions:

• Multiple full-time entry-level and lateral tenure/tenure-track positions. Our primary curricular needs include Business Associations, Evidence, and Property. When selecting candidates to interview, we also will consider whether they might also contribute in the following areas: Administrative Law, Contracts, Copyright, Business/Corporate/Entrepreneurship electives; Cyberlaw/Technology/Privacy, Entertainment Law, Family Law, International Business Transactions, Professional Responsibility, and Wills & Trusts.
• Multiple full-time entry-level or experienced Associate Professors of Academic Success and Bar Preparation
• Multiple full-time entry-level or experienced Associate Professors or Professors of Legal Analysis, Writing, and Skills.
  Attached are the ads for each position.

Founded in 1911, Southwestern is an ABA-accredited, independent law school located in the center of Los Angeles. Our mission includes educating lawyers ready to serve clients, the profession, and our society with excellence, empowering students to reach their potential, cultivating inclusion and belonging, and shaping the law and public policy through teaching, scholarship, and service. 

To apply, please send your CV, professional references, research agenda, and preferred areas of teaching via email to [email protected] and put "Faculty Application" in the email subject line. Review of applications will begin in mid-August. Initial interviews will be held via Zoom, and callback interviews will be held in person.

Attached are the ads for each position:

Download Doctrinal (Tenure-Track) Faculty Position Ad

Download Legal Writing (LAWS) Faculty Position Ad

Download Academic Success and Bar Programs Faculty Position Ad

UNLV is Looking for an Evidence Professor

The University of Nevada, Las Vegas invites applications for Associate Professors and Professors of Law within the William S. Boyd School of Law

ROLE of the POSITION

The University of Nevada, Las Vegas—William S. Boyd School of Law invites applications from both entry-level and lateral candidates for tenure system positions expected to begin July 1, 2025. We aim to fill numerous lines. We aim to hire in our top-ranked Lawyering Process Program (Legal Writing), Civil Procedure, Evidence, Property, Criminal Law/Criminal Procedure, Wills and Trusts, and someone specializing in dispute resolution who can add to our Saltman Center for Conflict Resolution. Additional areas of curricular focus include Professional Responsibility and Sports/Entertainment Law, as well as faculty who will build on Boyd's academic concentrations in Business and Commercial Law, Health Law, Indian Nations Gaming and Governance, Intellectual Property, and Employment Law. We have a unified tenure system for faculty teaching doctrinal, clinical, and lawyering process courses. Faculty who primarily teach lawyering process courses may also choose to teach a doctrinal course. We boast a 3-course teaching load and generous research leaves. 

The Boyd School of Law is a leading public law school located at the heart of the UNLV campus in Las Vegas, Nevada. As the only law school in the state, we are committed to the production of knowledge, including opportunities to assist policymakers, and service to Nevada’s especially diverse range of communities. UNLV is an R1 research university that is a Minority Serving Institution, Hispanic Serving Institution, and Asian American and Native American Pacific-Islander Serving Institution. Las Vegas is a dynamic and diverse city with world-class food, entertainment, and sports. It provides almost unlimited opportunities for outdoor activities and serves as a convenient hub for national and international travel.

MINIMUM QUALIFICATIONS

This position requires a graduate degree, typically a J.D. or a Ph.D from an accredited college or university as recognized by the United States Department of Education and/or the Council on Higher Education Accreditation (CHEA) or foreign equivalent.

Required Experience: Worked in an academic or institutional setting involving the formation, application, or practice of law (or law-related matters).

Faculty rank will be dependent upon education and experience as outlined below:

Associate Professor (Tenure-Track): Terminal degree and experience in an academic or institutional setting that demonstrates the potential for excellence in teaching, scholarship, and service.

Professor (Tenured): Terminal degree and experience in an academic or institutional setting with an established record of excellent teaching, scholarship, and service that is recognized by the status of tenure (or its equivalent).

Candidates should have an established record of excellent teaching, scholarship, and service to a law school community or be able to demonstrate the potential for such excellence in teaching, scholarship, and service. Credentials must be obtained prior to the start date.

PREFERRED QUALIFICATIONS

Preferred Experience: Teaching, scholarship, and service with a law school community.

COMMITMENT to DIVERSITY and CAMPUS VALUES

A successful candidate will support diversity, equity, and inclusiveness and contribute to a respectful, positive work environment. They will use our Campus Values to guide their decisions and actions and demonstrate our Rebel spirit.

SALARY

Salary competitive with those at similarly situated institutions.

BENEFITS OF WORKING AT UNLV

• Competitive total rewards package including:
  • Paid time off, sick leave, and holidays
  • Excellent health insurance including medical, dental and vision
  • Comprehensive retirement plans and voluntary benefits programs
• No state income tax
• Tuition discounts at Nevada System of Higher Education (NSHE) schools
• Tuition discounts for spouses, domestic partners, and dependents

PERKS

• Employee recognition and appreciation programs
• Connect with colleagues with shared interests
• Personal and professional development opportunities
• UNLV athletics ticket discounts
• Statewide employee purchase program discounts
• RebelCard discounts on and off campus
• Wellness programming for all UNLV faculty and staff at no cost
• Opportunity for career advancements to leadership roles

HOW TO APPLY

Applicants should submit 1) a letter of interest that describes their scholarly focus, teaching experience, and why they wish to join the Boyd School of Law; 2) a detailed resume; and 3) at least three professional references. We strongly encourage separate statements describing a Scholarly Agenda and Teaching Philosophy. The Faculty Appointments Committee anticipates screening candidates beginning in mid-August 2024 and conducting Call-backs on Mondays and Thursdays from mid-September through October 2024; candidates who submit applications by August 19, 2024, will be given priority. Interested candidates should send their materials to:

Faculty Appointments Committee

c/o Ms. Carressa Browder, Appointments Committee Coordinator

UNLV Boyd School of Law

4505 South Maryland Parkway, Campus Box 451003

Las Vegas, NV  89154-1003

or by email at [email protected].

Members of the Appointments Committee are Professors Frank Rudy Cooper (chair), Stewart Chang, Ruben Garcia, Eve Hanan, Lydia Nussbaum, and Nantiya Ruan.  

Materials should be addressed to Frank Rudy Cooper, Search Committee Chair. If an applicant is offered a call back interview, the applicant will be asked to submit an application through Workday. For assistance with the Workday application process, please contact UNLV Human Resources at (702) 895-3504 or [email protected].

PROFILE of the UNIVERSITY

Founded in 1957, UNLV is a doctoral-degree-granting institution of approximately 30,000 students and more than 3,600 faculty and staff. To date, UNLV has conferred more than 152,000 degrees, producing more than 130,000 alumni around the world. UNLV is classified by the Carnegie Foundation for the Advancement of Teaching as an R1 research university with very high research activity. The university is committed to recruiting and retaining top students and faculty, educating the region's diversifying population and workforce, driving economic activity through increased research and community partnerships, and creating an academic health center for Southern Nevada that includes the launch of a new UNLV School of Medicine. UNLV is located on a 332-acre main campus and two satellite campuses in Southern Nevada.

Here at UNLV, we have come together and created one of the most affirmative and dynamic academic environments in the country. UNLV sits in the top spot in U.S. News & World Report’s annual listing of the nation’s most diverse universities for undergraduates. The university has ranked in the top ten since the rankings debuted more than a decade ago. We continue to show our commitment to serving our wonderfully diverse population and building the future for Las Vegas and Nevada.

For more information, visit us on line at: http://www.unlv.edu.

EEO/AA STATEMENT

The University of Nevada - Las Vegas (UNLV) is committed to providing a place of work and learning free of discrimination on the basis of a person’s age (40 or older), disability, whether actual or perceived by others (including service-connected disabilities), gender (including pregnancy related conditions), military status or military obligations, sexual orientation, gender identity or expression, genetic information, national origin, race (including hair texture and protected hairstyles such as natural hairstyles, afros, bantu knots, curls, braids, locks and twists), color, or religion (protected classes). Discrimination on the basis of a protected class, including unlawful harassment, which is a form of discrimination, is illegal under federal and state law. Where unlawful discrimination is found to have occurred, UNLV will act to stop the unlawful discrimination, to prevent its recurrence, to remedy its effects, and to discipline those responsible. Women, minorities, and veterans are encouraged to apply.

TITLE IX STATEMENT

The University of Nevada, Las Vegas, does not discriminate on the basis of sex in any education program or activity that it operates. Non-discrimination on the basis of sex is mandated by Title IX of the Education Amendments of 1972 (20 U.S.C. §§ 1681 et seq.) and the corresponding implementation regulations (34 C.F.R. Part 106). The University’s commitment to nondiscrimination in its education programs and activities extends to applicants for admission and employment. Inquiries concerning the application of these provisions may be referred to: Michelle Sposito, J.D., Title IX Coordinator, University of Nevada, Las Vegas, 4505 S. Maryland Parkway, Box 451062, Las Vegas, NV 89154-1062, Frank and Estella Beam Hall (BEH) Room 553, Telephone: (702) 895-4055; Email: [email protected], or to The Assistant Secretary of the United States Department of Education, U.S. Department of Education, Office for Civil Rights, 400 Maryland Avenue, SW, Washington, D.C. 20202-1100; Telephone: 1-800-421-3481 FAX: 202-453-6012; TDD: 1-800-877-8339; Email: [email protected]; or to both. 

Information pertaining to the University’s grievance procedures and grievance process, including how to report or file a complaint of sex discrimination, how to report or file a formal complaint of sexual harassment, and how the University will respond can be found online at the Office of Equal Employment & Title IX webpage.

SAFETY AND SECURITY STATEMENT

UNLV is committed to assisting all members of the UNLV community in providing for their own safety and security. The Annual Security Report and Annual Fire Safety Report compliance document is available online.

 

JOB CATEGORY

Academic Faculty

Northern District of Indiana Finds 911 Call Made About 5 Minutes After An Assault Qualified as 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, does a 911 call made about five minutes after an incident qualify as a "present sense impression" made "immediately after the declarant perceived it"? That was the question addressed by the United States District Court for the Northern District of Indiana in its recent opinion in United States v. Wade, 2024 WL 397546 (N.D. Ind. 2024).

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Fourth Circuit Finds District Court's Non-Anonymity Order Was an Abuse of Discretion

Should a plaintiff be able to use a pseudonym when suing a defendant, or should she have to use her real name? The recent opinion of the Fourth Circuit in Doe v. Sidar, 2024 WL 696535 (4th Cir. 2024), does a good job of laying out how that court has dealt with this issue.

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